Guarantees in Case of Expulsion

States are forbidden from expelling or returning ( refouler ) a refugee to a territory where his or her life or freedom would be threatened. The only derogation allowed concerns individuals who represent a danger for the national security of the State in question or who, “having been convicted by a final judgment of a particularly serious crime, constitute a danger to the community of that country” (Art. 33 of Refugee Convention). The expulsion of such a refugee shall be carried out only following a decision reached in accordance with due process of law. The refugee has the right to submit evidence to clear him- or herself, to appeal the decision, and to be represented before the competent authority. If the decision to expel the person is upheld, he or she must be granted a reasonable period of time within which to seek legal admission into another country.

These provisions, set forth in Articles 32 and 33 of the Refugee Convention, are echoed in the 1966 International Covenant on Civil and Political Rights (Art. 13). However, in the Covenant, the provisions only concern aliens who are lawfully in the territory of a State Party.

The Principle of Nonrefoulement

The principle of non-refoulement represents the practical defense of an individual’s right not to be sent back by force toward a source of danger. It provides a sense of concrete reality to the right of asylum, which gives individuals the right to flee from persecution in their country but does not establish obligations on the part of States to give them asylum. Hence, the only guarantee left is the prohibition to send individuals back once they have fled their country of origin and entered the territory of another State. A refugee may not be returned to a State where he or she fears persecution. ▸ Persecution ▸ Refugees

The principle of non-refoulement provides double protection:

• It establishes that any individual who enters the territory of another, even illegally, has the right to submit a request for asylum and have his or her case heard.
• Even if the request for asylum is denied, authorities are still prohibited from returning him or her to a territory where his or her life or liberty are threatened. In order to force an individual to leave the territory of first asylum, there must be a country of second asylum (known as the “safe third country”) that is willing to receive the refugee.

The principle of non-refoulement is increasingly threatened by an administrative practice carried out by governments, according to which they establish a list of countries declared to be “safe.” This practice does not give due consideration to the diversity of personal situations. The principle is also threatened by a general trend toward hastening the return of refugees to their country as soon as certain peace accords have been signed and before security has been reestablished. ▸ Human rights ▸ Ill treatment ▸ Refugees ▸ Stateless persons ▸ Torture

However, it has become very difficult to find countries of second asylum, the tendency being to send asylum seekers back to their State of first asylum. The result is that more and more public authorities are closing their borders to avoid being the first safe State that a refugee reaches. In practice, this means that the right to asylum is increasingly threatened.

▸ Asylum

Repatriation

Under the right conditions, it is possible to repatriate refugees. One of the most important conditions is that repatriation must be voluntary (Art. 5.1 of AU Convention): it must be up to the refugees to decide whether to return to their country of origin. Involuntary repatriation can be considered refoulement. ▸ Repatriation

▸ Asylum ▸ Persecution ▸ Refugees ▸ Repatriation ▸ UNHCR