Refoulement

Refoulement–from the French word “refouler”, meaning “turning away” or “rejection”–refers to the forcible return of refugees or asylum seekers to a country where they may face harm, such as persecution or other human rights violations. Following the end of World War II, modern international and humanitarian law evolved beyond anything the international community had previously seen. In this aftermath, the Convention Relating to the Status of Refugees was established by the United Nations in 1951 to guarantee that refugees, like the Jews that sought to escape the horrors inflicted by the Nazi Party, are never returned to a place where they might suffer harm. Article 33 of the Refugee Convention addresses refoulement, and states, “No contracting state shall expel or return 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." The 1967 Protocol expanded the scope of the 1951 Convention, removing the temporal and geographical limitations initially imposed, and ensuring that it applies universally without the limitations of the original convention. Non-refoulement is a crucial principle of international human rights law and refugee protection. Through Article 14 of the Universal Declaration of Human Rights (UDHR), the right to seek and enjoy asylum from persecution in another country is protected. While there is no obligation for a state to grant asylum, states may not knowingly expel a person to another state where there are substantial grounds for believing that the individual would suffer harm upon their arrival, whether that is their country of origin or another country where danger is present. This applies to anywhere a state exercises jurisdiction and to any person, regardless of their citizenship or migration status. There are some exceptions to the existing legal framework regarding non-refoulement. If the refugee is a danger to the receiving country, or if the refugee has committed a “particularly serious crime”, they may be denied asylum and returned to their country of origin. Implementation can create challenges to the principle of non-refoulement. While any measures adopted by a state at its borders that prohibit foreign citizens from entering the state, leaving them exposed to dangerous conditions, would be in violation of the principle of non-refoulement, many governments prioritize national security or immigration control over international law and obligation. Several countries, including the United States and the United Kingdom, have faced criticism for policies that may violate non-refoulement principles outlined by the United Nations. In the United States, the Migrant Protection Protocols, also known as the “Remain in Mexico” program, require asylum seekers to stay in Mexico until their asylum claims are processed. This exposes asylum seekers to dangers such as kidnapping, extortion, rape, and other abuses (“Remain in Mexico”, Human Rights Watch). In the United Kingdom, the UK and Rwanda Migration and Economic Development Partnership, known as the “Rwanda Policy”, redirected people claiming asylum in the UK to Rwanda for processing and asylum. Critics of the policy argued that UK officials may not have ensured that those being sent to Rwanda were not subsequently sent to another country where their safety from persecution or harm is not guaranteed. In November 2023, the Supreme Court of the United Kingdom held that the Rwanda Policy was unlawful.

Refoulment comes from the French word “refouler,” which means “to repel.” Refoulment is, in short, the process of a State forcing refugees or asylees to return to the place of origin, where they received threats of persecution and threats to their life and liberty on the basis of their particular race, religion, nationality, political opinion, or membership of a specific social group (The Guardian). Non-refoulement is a principle that protects individuals from being returned to places that pose a danger to their lives. The principle of nonrefoulment is an absolute right under international law; it is found in various areas of international law, including international human rights law and international refugee law, extradition treaties, and customary international law (The Practical Guide to Humanitarian Law). All states are prohibited from refouling someone. There are absolutely no exceptions. Under both the refugee convention and the convention against torture, nations are held to non-refoulment obligations, as it explicitly states that no State shall expel, refoul, or extradite an individual to another State where there are considerable and substantial grounds for belief that the individual would be in danger of being subjected to torture (The Guardian). Non-refoulement is very commonly invoked in refugee situations. However, you do not need to be formally recognized as a refugee to be protected by the principle of nonrefoulement. The principle of nonrefoulment provides protection to any individual, at risk of persecution, torture, mistreatment, or at risk of suffering irreparable harm, who has entered another State, even illegally, and attributes them with the right to submit a request for asylum and have their case heard. Double protection is ensured so that even if the asylee’s request for asylum is denied, it is prohibited still for authorities to return or refoul this individual back to the place of origin where their life or liberty was threatened. In order for the authorities of the country for which the asylee made their claim to possess the ability to force the asylee out, they would first need to identify a country of second asylum willing to take in this refugee (The Practical Guide to Humanitarian Law). In short, the prohibition of forced return applies to any form of forced return, including forcibly returning an individual to their homeland, former place of residence, or to another place where this individual may also face threats to their life. This also includes creating intolerable situations that would force people to return to conditions that pose a danger to them of their own accord (Fortify Rights). While refoulment is illegal, it does happen. For example, during COVID-19, governments violated the principle of non-refoulment by closing their borders entirely and halting asylum processing. During COVID, the U.N. High Commissioner estimated that 167 countries closed their borders partially or entirely in order to contain the spread of the virus, but out of the 167 countries, 57 made absolutely no exception for individuals seeking asylum (Just Security). Even in extraordinary circumstances, like a pandemic, states still must adhere to their obligations. State duties to protect their citizen’s health and safety do not have to conflict with non-refoulment. While it is common for states to close their borders during public health emergencies temporarily, they cannot implement policies that turn away refugees and individuals facing danger. With strong border screenings and quarantine systems in place, states can aid in protecting all individuals who are in need of protection. States are obligated to respect and uphold non-refoulment without any exceptions in order to do their part in protecting those facing persecution (Fortify Rights). With that said, in the United States, the Center for Disease Control and Prevention, on March 20, 2020, issued an order to suspend asylum processing entirely for individuals traveling from Canada or Mexico. Additionally, this order applies to any non-U.S. citizen traveling via land from Mexico or Canada without valid travel documents. Moreover, this policy was heavily criticized for its exclusionary attributes rather than its genuine concern for public health. The true aim of this policy seemed to be to expeditiously expel asylum seekers, with experts disputing whether there could be a credible rationale for banning individuals from seeking asylum. Furthermore, there were heavy criticisms that followed when unaccompanied minors who tested negative for COVID-19 were prohibited from making asylum claims (Just Security). Governments are, of course, allowed to implement protectionary policies during an outbreak (including restriction on movement), but they are by no means permitted to completely bar the entry of asylum seekers under international law (Just Security). To be clear, Article 33(2) of the Refugee Convention allows governments to deny the convention's benefits to asylum seekers deemed a security threat. However, this must be individualized; governments cannot make blanket refusals. Additionally, even if an asylum seeker is deemed a security threat, the country must still adhere to its obligations and not refoul a refugee to a place where they will be most likely to face persecution. Most notably, a country cannot use a pandemic to justify refusing asylum seekers en masse without assessing their asylum claims individually. Even during a public health emergency, states must adhere to their duties and obligations under international law to enforce screening protocols that must not be used to deport asylum seekers and fulfill their commitment to providing medical care to asylum seekers under international law (Just Security).