Legal considerations on asylum and non-refoulement in the context of ‘instrumentalization’

Document source:

UN High Commissioner for Refugees (UNHCR)
Date:
26 September 2024

In this section

The present legal considerations outline States’ obligations under international refugee and human rights law in relation to admission to the territory of States and access to asylum in situations of so-called ‘instrumentalization’. They underscore the importance of every person’s right to seek asylum and be protected from refoulement in all situations. Where security concerns arise in relation to specific individuals, these considerations also outline measures that States may lawfully undertake, where appropriate and subject to relevant safeguards, to simplify and accelerate asylum procedures, in a manner consistent with international refugee and human rights law.

23. When facing mixed and/or onward movements in the context of so-called ‘instrumentalization’, all States along the travel route of those on the move, including States facilitating so-called ‘instrumentalized’ movements, must uphold international refugee and human rights law, including the right to seek and to enjoy asylum from persecution, notably access to fair and efficient asylum procedures, the principle of non-refoulement, and the right of people to return voluntarily to their own country. In particular, States may not reject individuals at the border without an individual assessment of their international protection needs.

24. In such situations, States may consider:

a) Setting up efficient asylum processing modalities at border areas, as part of a legal framework that provides refugees with fair and efficient procedures as well as effective guarantees, and that:
a. allow all persons who fear persecution or other serious harm to apply for international protection;
b. provide for the early identification of individuals with specific needs and vulnerabilities;
c. have an enhanced system of triaging of applications, with a view to referring those that are manifestly unfounded to simplified and accelerated procedures, depending on profile and background, and to prioritize manifestly founded applications; and
d. ensure the return of individuals finally determined not to have any international protection needs.
b) Enhancing national capacity to receive, assist, register and screen arrivals to make distinctions between different categories among the arrivals as well as to allow for the early identification of people who may constitute a security risk;
c) Undertaking prioritized and expedited consideration, within the refugee status determination process, of asylum applications which raise potential exclusion issues by asylum officers with dedicated expertise;
d) Providing in law for the possibility to resort to restrictions of movement, including alternatives to detention, for the limited purposes allowed by international law and only when necessary and proportionate. This may include minimal periods in detention, only where less coercive measures cannot be applied;
e) Any derogation from the human rights of refugees must be based on a declaration of state of emergency in line with international human rights law, including treaty provisions on derogations of rights in times of emergency, and must ensure respect to the principle of non-refoulement, from which no derogation is permitted; and
f) Where an individual refugee is found to represent a security risk, after a rigorous analysis and subject to safeguards, States may be able to expel such a refugee on grounds of national security and public order in compliance with the principle of non-refoulement.