UNHCR Note on the Principle of Non-Refoulement
|Publisher||UN High Commissioner for Refugees (UNHCR)|
|Publication Date||November 1997|
|Cite as||UN High Commissioner for Refugees (UNHCR), UNHCR Note on the Principle of Non-Refoulement, November 1997, available at: http://www.refworld.org/docid/438c6d972.html [accessed 19 September 2018]|
|Comments||Prepared for the EU Seminar on the Implementation of the 1995 EU Resolution on Minimum Guarantees for Asylum Procedures, which took place in Luxembourg on 4 and 5 November 1997.|
The principle of non-refoulement is the cornerstone of asylum and of international refugee law. Following from the right to seek and to enjoy in other countries asylum from persecution, as set forth in Article 14 of the Universal Declaration of Human Rights, this principle reflects the commitment of the international community to ensure to all persons the enjoyment of human rights, including the rights to life, to freedom from torture or cruel, inhuman or degrading treatment or punishment, and to liberty and security of person. These and other rights are threatened when a refugee is returned to persecution or danger.
One may ask how a discussion of the principle of non-refoulement relates to the topic of this seminar, namely the implementation of the 1995 EU Resolution on Minimum Guarantees for Asylum Procedures. In fact, the observance of the principle of non-refoulement is intrinsically linked to the determination of refugee status.
Procedures or arrangements for identifying refugees should provide a guarantee against refoulement, by ensuring that persons who are entitled to protection do in fact receive it. Such procedures or arrangements are particularly important when a country receives both asylum-seekers and migratory movements. In UNHCR's view, respect for the principle of non-refoulement can therefore be most effectively ensured if claims to refugee status and asylum are determined substantively and expeditiously.
A closer examination of the text of the Resolution on Minimum Guarantees reveals several references to the principle of non-refoulement, reaffirming its importance, notably concerning fair and effective asylum procedures:
Paragraph 1: "In particular, the procedures will comply fully with Article 1 of the 1951 Convention concerning the definition of a refugee, Article 33 relating to the principle of 'non-refoulement' and Article 35 concerning cooperation with the Office of the United Nations High Commissioner for Refugees, including the facilitation of its duty of supervising the application of the Convention."
Paragraph 2: "In order to ensure effectively the principle of 'non-refoulement', no expulsion measure will be carried out as long as no decision has been taken on the asylum application."
These broad commitments are, in UNHCR's view, not necessarily reflected in the substance of the Resolution. For example, paragraph 24 allows Member States to adopt special procedures for asylum applications at the border in order to determine, prior to access to the asylum procedure, whether the application is manifestly unfounded. No expulsion may be carried out in this period. In the case where an asylum application is manifestly unfounded, the asylum applicant may be refused entry. An appeal will not have a suspensive effect and the authorities may deport an asylum seeker.
The possibility for an asylum applicant to lodge an appeal with suspensive effect or its equivalent before a removal decision is implemented is an important principle that should guide all asylum procedures, especially summary procedures. This would minimise the risk of erroneous decisions, and, therefore, that of non-refoulement, without necessarily having an adverse effect on the length of accelerated procedures.
It should also be noted that the earlier Resolutions of 1992 on Manifestly Unfounded Applications for Asylum and on Host Third Countries are closely linked with the Resolution on Minimum Guarantees, since they elaborate in greater detail on concepts referred to in the Resolution on Minimum Guarantees. UNHCR has also raised various concerns in relation to both these Resolutions.
As for the Resolution on Manifestly Unfounded Applications, UNHCR's concerns relate to cases which, according to this resolution, are to be considered as manifestly unfounded, but which cannot appropriately be dealt with in accelerated procedures because of their inherently complex nature. This applies in particular when the possibility of an internal flight alternative is to be established, or when one of the exclusion clauses of the 1951 Convention (e.g. that relating to the commission of a common crime) is invoked by a Member State. Cases raising such issues can never, in our view, be regarded as manifestly unfounded.
Also, the Member States may, according to this resolution, consider asylum applications under accelerated procedures in case of deliberate deception or abuse of the asylum procedure. It is UNHCR's view, in line with Executive Committee Conclusion No. 58, that asylum applicants should cooperage with the authorities and not provide them with misleading information. Automatic recourse to accelerated procedures in all cases of this kind could lead to inequitable results and may, therefore, not be the most appropriate arrangement. The mere fact of having made false statements to the authorities does not in itself necessarily impair an asylum application and make it manifestly unfounded.
As can be seen, a combination of these standards of, on the one hand, the denial of suspensive effect in the appeal procedure, and on the other a widening of what constitutes a manifestly unfounded application increases the risk of genuine claims being rejected, and of applicants being deported before errors have been rectified, eventually resulting in refoulement.
With regard to the Resolution on Host Third Countries UNHCR attaches great importance to a proper assessment of the situation in the country concerned before an asylum applicant is sent there, which is appropriately reflected in this resolution. UNHCR strongly recommends that the agreement of the host third country be obtained before an asylum applicant is sent to that country in order to avoid the risk of so-called orbit cases and refoulement.
In brief, the above sets out why and to what extent the two subjects are closely inter-related. Ultimately, the basis of UNHCR's concerns are related to the danger of refoulement.
B. Legal basis of non-refoulement
Non-refoulement has been defined in a number of international refugee instruments, both at the universal and regional levels.
At the universal level the most important provision in this respect is Article 33 (1) of the 1951 Convention relating to the Status of Refugees, which states that:
"No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."
This provision constitutes one of the basic Articles of the 1951 Convention, to which no reservations are permitted. It is also an obligation under the 1967 Protocol by virtue of Article I (1) of that instrument. Unlike some provisions of the Convention, its application is not dependent on the lawful residence of a refugee in the territory of a Contracting State. As to the words "where his life or freedom would be threatened", it appears from the travaux préparatoires that they were not intended to lay down a stricter criterion than the words "well-founded fear of persecution" figuring in the definition of the term "refugee" in Article 1 A (2). The different wording was introduced for another reason, namely to make it clear that the principle of non-refoulement applies not only in respect of the country of origin but to any country where a person has reason to fear persecution.
Also at the universal level, mention should be made of Article 3 (1) of the UN Declaration on Territorial Asylum unanimously adopted by the General Assembly in 1967 [res. 2312 (XXII)].
"No person referred to in Article 1, paragraph 1, shall be subjected to measures such as rejection at the frontier or, if he has already entered the territory in which he seeks asylum, expulsion or compulsory return to any State where he may be subjected to persecution."
At the regional level the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa of 1969 gives expression in binding form to a number of important principles relating to asylum, including the principle of non-refoulement. According to Article II (3):
"No person shall be subjected by a Member State to measures such as rejection at the frontier, return or expulsion, which would compel him to return to or remain in a territory where his life, physical integrity or liberty would be threatened for the reasons set out in Article I, paragraphs 1 and 2."
Again, Article 22 (8) of the American Human Rights Convention adopted in November 1969 provides that:
"In no case may an alien be deported or returned to a country, regardless of whether or not it is his country of origin, if in that country his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status or political opinions."
In the Resolution on Asylum to Persons in Danger of Persecution, adopted by the Committee of Ministers of the Council of Europe on 29 June 1967, it is recommended that member governments should be guided by the following principles:
"1. They should act in a particularly liberal and humanitarian spirit in relation to persons who seek asylum on their territory.
2. They should, in the same spirit, ensure that no one shall be subjected to refusal of admission at the frontier, rejection, expulsion or any other measure which would have the result of compelling him to return to, or remain in, a territory where he would be in danger of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion."
Finally, Article III (3) of the Principles concerning the Treatment of Refugees adopted by the Asian-African Legal Consultative Committee at its Eighth Session in Bangkok in 1966, states that:
"No one seeking asylum in accordance with these Principles should, except for overriding reasons of national security or safeguarding the populations, be subjected to measures such as rejection at the frontier, return or expulsion which would result in compelling him to return to or remain in a territory if there is a well-founded fear of persecution endangering his life, physical integrity or liberty in that territory."
In addition to statements in the above international instruments, the principle of non-refoulement has also found expression in the constitutions and/or ordinary legislation of a number of States.
Because of its wide acceptance, it is UNHCR's considered view, supported by jurisprudence and the work of jurists, that the principle of non-refoulement has become a norm of customary international law. This view is based on a consistent State practice combined with a recognition on the part of States that the principle has a normative character. As outlined above, the principle has been incorporated in international treaties adopted at the universal and regional levels to which a large number of States have now become parties. Moreover, the principle has also been systematically reaffirmed in Conclusions of the Executive Committee and in resolutions adopted by the General Assembly, thus demonstrating international consensus in this respect and providing important guidelines for the interpretation of the aforementioned provisions.
International human rights law provides additional forms of protection in this area. Article 3 of the 1984 UN Convention against Torture stipulates that no State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture. Similarly, Art. 7 of the International Covenant on Civil and Political Rights has been interpreted as prohibiting the return of persons to places where torture or persecution is feared. In the regional context, Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms has been interpreted by the European Court of Human Rights as implicitly prohibiting the return of anyone to a place where they would face a "real and substantiated" risk of ill-treatment in breach of the prohibition of torture or inhuman or degrading treatment or punishment. While Art. 33 (2) of the 1951 Convention foresees exceptions to the principle of non-refoulement, international human rights law and most regional refugee instruments set forth an absolute prohibition, without exceptions of any sort.
In the case of persons who have been formally recognised as refugees under the 1951 Convention and/or the 1967 Protocol, the observance of the principle of non-refoulement should not normally give rise to any difficulty.
In this connection, particular regard should be had to the fact that a determination of refugee status is only of a declaratory nature. The absence of formal recognition as a refugee does not preclude that the person concerned possesses refugee status and is therefore protected by the principle of non-refoulement.
In fact, respect for the principle of non-refoulement requires that asylum applicants be protected against return to a place where their life or freedom might be threatened until it has been reliably ascertained that such threats would not exist and that, therefore, they are not refugees. Every refugee is, initially, also an asylum applicant; therefore, to protect refugees, asylum applicants must be treated on the assumption that they may be refugees until their status has been determined. Without such a rule, the principle of non-refoulement would not provide effective protection for refugees, because applicants might be rejected at the frontier or otherwise returned to persecution on the grounds that their claim had not been established. That the principle of non-refoulement applies to refugees, irrespective of whether they have been formally recognised as such - that is, even before a decision can be made on an application for refugee status - has been specifically acknowledged by the UNHCR Executive Committee in its Conclusion No. 6 on Non-Refoulement. And indeed, where a special procedure for the determination of refugee status under the 1951 Convention and the 1967 Protocol exists, the applicant is almost invariably protected against refoulement pending a determination of his or her refugee status.
There are, however, a number of situations in which the observance of the principle of non-refoulement is called for, but where its application may give rise to difficulties. Thus the person concerned may find himself in a State which is not a party to the 1951 Convention or the 1967 Protocol, or which, although a party to these instruments, has not established a formal procedure for determining refugee status. The authorities of the country of asylum may have allowed the refugee to reside there with a normal residence permit or may simply have tolerated his or her presence and not have found it necessary formally to document his or her recognition as a refugee. In other cases, the person concerned may have omitted to make a formal request to be considered a refugee.
In situations of this kind it is essential that the principle of non-refoulement be scrupulously observed even though the person concerned has not - or has not yet - been formally documented as a refugee. Again, this flows from the fact that, first, the recognition of a person as a refugee, whether under UNHCR's mandate or under the 1951 Convention or the 1967 Protocol, is declaratory in nature, and, second, that the principle of non-refoulement is a norm of customary international law.
The need to provide international protection to persons fleeing armed conflict and civil strife, whether or not they come within the terms of the 1951 Convention definition, is generally accepted in practice by States as a humanitarian responsibility. The protection accorded in these countries to persons who are not deemed to be refugees under the 1951 Convention is normally granted as a humanitarian act, or as a duty under national law (including constitutional provisions). It should also be noted that many of these countries are parties to international instruments that could be invoked in certain circumstances against the return of some non-Convention refugees to a place where their lives, freedom or other fundamental rights would be in jeopardy, notably the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment or the European Human Rights Convention. Although these instruments may not provide protection against refoulementas broad as that provided in Africa by the OAU Refugee Convention, they give rise to international obligations towards some persons in need of international protection who would not come within the terms of the 1951 Convention.
This issue is also related to mass influxes and the concept of temporary protection. The concept of temporary protection has been defined as a means, in situations of large-scale influx and in view of the impracticality of conducting individual refugee status determination procedures, for providing protection to groups or categories of persons who are in need of international protection. It is primarily conceived as an emergency protection measure of short duration in response to large-scale influxes, guaranteeing admission to safety, protection from non-refoulement  and respect for an appropriate standard of treatment. While the practice of granting temporary refuge, or asylum, on a temporary basis to refugees has often been employed in situations of large-scale influx in various regions, UNHCR first formally recommended the granting of temporary protection to persons fleeing the conflict and human rights abuses in the former Yugoslavia.
The applicability of the non-refoulement principle to beneficiaries of temporary protection is explained by the fact that, among its beneficiaries, there are refugees in the sense of the 1951 Convention and also because they are asylum-seekers who have not had their claims determined. The EU proposal concerning temporary protection, submitted by the Commission, expressly recognises this linkage with the non-refoulement principle in its preamble.
In Latin America, the scope of the Cartagena Declaration closely resembles the OAU Refugee Convention, also with respect to the non-refoulement principle. This Declaration was adopted by a group of experts and representatives from Governments at a Colloquium held in Cartagena, Colombia, in November 1984. Building on the precedent provided by the OAU Convention and on the work of the Inter-American Commission on Human Rights, the Declaration recommends the use in the region of a "definition or concept of refugee ... which, in addition to containing the elements of the 1951 Convention and the 1967 Protocol, includes among refugees persons who have fled their country because their lives, safety or freedom have been threatened by generalised violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order." Although the Declaration itself is not a binding legal instrument, it has repeatedly been endorsed by the Organisation of American States (OAS). The Cartagena Declaration has widely been accepted as the refugee protection basis in Latin America and has been incorporated into the national legislation of several Latin American States.
D. Measures of refoulement
Measures of refoulement are various and include expulsion/deportation orders against refugees, return of refugees to countries of origin or unsafe third countries, electrified fences to prevent entry, non-admission of stowaway asylum-seekers and push-offs of boat arrivals or interdictions on the high seas.
Whenever refugees - or asylum-seekers who may be refugees - are subjected, either directly or indirectly, to such measures of return, be it in the form of rejection, expulsion or otherwise, to territories where their life or freedom are threatened, the principle of non-refoulement has been violated.
Furthermore, having regard to the nature and purpose of the principle, it also applies to extradition. Indeed, the protection of a refugee cannot be regarded as complete unless he or she is also protected against extradition to a country where he or she has reason to fear persecution. Insofar as their actual wording is concerned, statements of the principle of non-refoulement figuring in various international instruments are wide enough to cover extradition. This applies in particular as regards the wording of Article 33 (1) of the 1951 Convention. Most extradition conventions also foresee a safeguard against extradition to countries of persecution.
E. Territorial application
Since the purpose of the principle of non-refoulement is to ensure that refugees are protected against forcible return to situations of danger it applies both within a State's territory and to rejection at its borders. It also applies outside the territory of States. In essence, it is applicable wherever States act.
It has been argued that the principle of non-refoulement is not binding on a State outside its own national territory, so that a Government may return refugees directly to persecution provided they have not yet reached or crossed its borders. This claim is clearly inconsistent with the purpose, and is contrary to the spirit, of the 1951 Convention and its 1967 Protocol, as well as of international refugee law generally. No such territorial limitation applies, for instance, to UNHCR's mandate to provide international protection to refugees. In fact, UNHCR's position on interdiction-at-sea is that this is inconsistent with the international refugee protection regime, especially since, among those leaving, there may be people who have concerns about their physical security and safety. There must be a possibility for these people to reach safety and have their protection needs assessed and met. Interdiction and compulsory return preclude this.
F. Exceptions to the principle of non-refoulement
While the principle of non-refoulement is basic, it is recognised that there may be certain legitimate exceptions to the principle.
Article 33 (2) of the 1951 Convention provides that the benefit of the non-refoulement principle may not be claimed by a refugee 'whom there are reasonable grounds for regarding as a danger to the security of the country ... or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country'. This means in essence that refugees can exceptionally be returned on two grounds: (i) in case of threat to the national security of the host country; and (ii) in case their proven criminal nature and record constitute a danger to the community. The various elements of these extreme and exceptional circumstances need, however, to be interpreted.
With regard to the 'national security' exception (that is, having reasonable grounds for regarding the person as a danger to the security of the country), while the evaluation of the danger remains within the province of the national authorities, the term clearly implies a threat of a different kind than a threat to 'public order' or even to 'the community'. In 1977, the European Court of Justice ruled that there must be a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society (Reg. vs. Bouchereau, 2CMLR 800). It follows from state practice and the Convention travaux preparations that criminal offences without any specific national security implications are not to be deemed threats to national security, and that national security exceptions to non-refoulement are not appropriate in local or isolated threats to law and order.
With regard to the interpretation of the 'particularly serious crime'-exception, two basic elements must be kept in mind. First, as Article 33 (2) is an exception to a principle, it is to be interpreted and implemented in a restrictive manner, as confirmed by Executive Committee Conclusion No. 7. Second, given the seriousness of an expulsion for the refugee, such a decision should involve a careful examination of the question of proportionality between the danger to the security of the community or the gravity of the crime, and the persecution feared. The application of this exception must be the ultima ratio (the last recourse) to deal with a case reasonably.
For Article 33 (2) to apply, therefore, it is generally agreed that the crime itself must be of a very grave nature. UNHCR has recommended that such measures should only be considered when one or several convictions are symptomatic of the basically criminal, incorrigible nature of the person and where other measures, such as detention, assigned residence or resettlement in another country are not practical to prevent him or her from endangering the community. Read in conjunction with Articles 31 and 32 of the 1951 Convention, a State should allow a refugee a reasonable period of time and all necessary facilities to obtain admission into another country, and initiate refoulement only when all efforts to obtain admission into another country have failed.
In conclusion, in view of the serious consequences to a refugee of being returned to a country where he or she is in danger of persecution, the exception provided for in Article 33 (2) should be applied with the greatest caution. It is necessary to take fully into account all the circumstances of the case and, where the refugee has been convicted of a serious criminal offence, any mitigating factors and the possibilities of rehabilitation and reintegration within society.
It should also be noted that such exceptions based on factors relating to the person concerned do not figure in other instruments, neither in the international refugee instruments nor in international human rights law. The 1969 OAU Convention, for example, does not provide for expulsion or refoulement of refugees under any circumstances. Instead, it calls on Member States to appeal to other Member States should they find difficulty in continuing to grant asylum.
G. Non-refoulement and the safe third country concept
The following paragraphs set out some basic considerations in view of the importance of the safe third country concept in the context of the discussion of minimum guarantees for asylum procedures in relation to the principle of non-refoulement.
One of the problems that may arise in applying the safe third country concept to asylum-seekers is the difficulty of determining whether another country in which an asylum-seeker can reasonably be expected to request asylum, will, in fact, accept responsibility for examining his or her request and, if appropriate, granting asylum. UNHCR is aware of a number of instances where asylum-seekers have been refused admission and returned to a country through which they had passed, only to be summarily sent onwards from there, without an examination of their claim, either to their country of origin or to another, clearly unsafe country. Where asylum-seekers are returned to third countries, this needs to be implemented with due regard to the principle of non-refoulement. Without the prior consent and the co-operation of the country to which an asylum-seeker is returned, there is a grave risk that an asylum-seeker's claim may not receive a fair hearing there and that a refugee may be sent on, directly or indirectly, to persecution, in violation of the principle of non-refoulement and of Article 33 of the 1951 Convention.
In UNHCR's view, the proper application of the safe third country concept requires identifying a country that will actually accept responsibility for examining the asylum request and hence ensure that refugees and asylum-seekers receive 'somewhere' the protection they require.
If asylum-seekers are to be returned to a country where effective protection is conditional upon the determination of the asylum claim, then assured access to a refugee status determination procedure that is consistent with the 1951 Convention and 1967 Protocol is a prerequisite for such return. It is accordingly necessary to establish both that access to the refugee status determination procedure will be granted and that the procedure includes the necessary safeguards to ensure compliance with Article 33 of the 1951 Convention, including safeguards to ensure respect for the principle of non-refoulement in case the asylum-seeker is sent to yet another country on the grounds that protection and asylum could be obtained there.
The most essential component of refugee status and of asylum is protection against return to a country where a person has reason to fear persecution and danger. This protection has found expression in the principle of non-refoulement.
As States, particularly in the industrialised world, intensify and co-ordinate their efforts to curb irregular immigration, there is concern that the legal and administrative measures adopted, including measures to expedite asylum procedures and to shift the responsibility for considering asylum requests to other countries, may have the unintended result of placing refugees in situations that could ultimately lead to refoulement to their country of origin or other territories where their life or freedom would be threatened.
When it comes to the establishment and implementation of national procedures for the determination of refugee status, measures are therefore required to ensure that respect for the principle of non-refoulement remains the guiding principle and ultimate objective of any refugee protection regime.
Office of the United Nations High Commissioner for Refugees
 UNHCR and its Executive Committee have even argued that the principle of non-refoulement is progressively acquiring the character of ius cogens; see Executive Committee Conclusion No. 25 para. (b); UN docs. A/AC.96/694 para 21.; A/AC.96/660 para. 17; A/AC.96/643 para. 15; A/AC.96/609/Rev.1 para. 5.
 See in particular Executive Committee Conclusion No. 6 on Non-Refoulement.
3] See for instance Communications No. 41/1996 (vs.Sweden) and No. 21/1995 (vs. Switzerland).
4] For more details see M. Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (1993), Article 7 para. 21.
5] The European Human Rights Convention does not foresee a right of entry or asylum. The interpretation of Article 3 can, however, be seen as a limit to the power of States to expel aliens. For further information see UNHCR, 'The European Convention on Human Rights and the Protection of Refugees, Asylum-Seekers and Displaced Persons', European Series 2 (1996), No. 3. As regards recent jurisprudence, see Ahmed vs. Austria Judgement 71/1995/577/663 of 17 December 1996 and Chahal vs. the United Kingdom Judgement 70/1995/576/662 of 15 November 1996.
 See also Executive Committee Conclusion No. 22 para. II A 2: "In all cases the fundamental principle of non-refoulement - including non-rejection at the frontier - must be scrupulously observed."
 See for instance Article 5 of the European Convention on the Suppression of Terrorism.