Under international refugee law, the principle of non refoulement prohibits any member or non member states from returning people to countries where they may face persecution, torture, inhumane or degrading treatment and/or other violations of the human rights. The principle is a norm of customary international law which means that it is binding on all states whether the state signs the treaty or not. It is further stated under Article 14 of the Universal Declaration of Human Rights (UDHR). The prohibition of refoulement has been mentioned clearly in both conventions of the United Nations. First, in the Convention against torture (CAT) and secondly in the International Convention for the Protection of all Persons from Enforced Disappearance (ICPPED). This principle has not only achieved its popularity in the Universal treaty of United Nations but also in the regional treaties such as the Inter-American Convention on the Prevention of Torture, the American Convention of Human Rights and the Charter of Fundamental Rights of the European Union.
Once a refugee arrives in a state, it is through this principle of nonrefoulement that prohibits the states to push them back or deny entry in their states. Obviously each refugee must be considered as per their individual circumstances of arriving as a refugee. It includes all those people who faced the risk of irreparable harm or torture, ill treatment or breach of human rights violations. The violations highlighted point to the denial of a right to a fair trial, right to life, right to integrity or freedom of a person, sexual or gender-based violence, death penalty, genital mutilation and not limited to but inclusive of prolonged solitary confinement. A greater emphasis is on the rights of a child who should not be returned if there is a risk of insufficient food and health provisions along with the human rights violations that have been aforementioned.
The terminology of nonrefoulement has not been mentioned in the news or other platforms which suggests its lack of understanding on an international and domestic level. Through advocacy, the principle of nonrefoulement can be emphasised on the social media accounts of the readers of this blog. It can be highlighted enough to not remain in the shadows by the policy-implementers.
The caselaw of G v G (2021) UKSC 9 where the claimant filed a case against his wife, the defendant, for abducting their child from South Africa to the United Kingdom under the Convention on the Civil Aspects of International Child Abduction of 1980 Hague Convention. The mother (defendant) filed for asylum under two grounds which were ‘grave risk to the child’ (Article 13) and ‘child own’s objections’ (Article 13(2)) from being returned back to South Africa to the father (claimant). The court had to weigh between refoulement of the refugees and abiding by the South African ongoing case of child abduction. The Supreme Court in the UK determined that a dependant has protection from refoulement pending the decision of the asylum application. So, due to this case of the UK Supreme court, nonrefoulement has upheld its importance.
The recent plan for refugees in the UK to be sent to Rwanda signed by the government of UK and Rwanda in April 2022 was deemed unacceptable in July 2024 by the UK Supreme Court due to its breach of the principle of nonrefoulement. The fact that the policy-makers in the government found the policy to be their best solution for reducing the number of migrants in the United Kingdom was abhorrent. Though it would have been effective in reducing the migrants, the principle of nonrefoulement would have been ignored and diminished in value. Such a principle must be common knowledge for human rights activists in order to promote its enforcement and deter the policy-makers from adopting such routes.
By Ali Abbas