- Abstract
This article aims to square these claims and rationalise a moral right held by failed asylum applicants with respect for the integrity of an existing domestic system. Should the state allow unsuccessful asylum applicants to stay without undermining the core functionality of its refugee system? Is this deporting failed asylum seekers by the state ever not a violation of their human rights? But, as the essay points out curtailing asylum seekers’ rights and expediting the asylum procedure raise moral questions alongside practical ones. What it really shows is that liberal governments do need to read international protection principles with some compassion. It proposes to expand the continued ability of filing upon socioeconomic participation-principal and require a good faith limitation on return, allowing those who lacked bad faith in their petition. The essay aims to combat a culture of disbelief regarding asylum seekers in moving from good/bad faith distinction by locating what it might mean to prosecute an ill-founded claim “in bad faith” across the morally sympathisable range.
- Keywords
Non-Refoulement, Rejected Asylum seekers, Human rights, International Law, Refugee Protection, Legal Challenges, State Obligations
- Introduction
The Oxford Dictionary of Law mentions this definition by Goodwin-Gill, concerning’ (to drive back or repel a competitor who does not break through one’s defences). The principle of non-refoulement is a key component in international human rights and refugee law. Refugee is an umbrella term for many different kinds of contradictions. Discrepancy in life experiences is at risk for social, economic and psychosocial damage. Therefore, non-refoulement became an integral part of international law. At its heart is the idea that governments should not return refugees to a country where they face serious human rights abuses. This principle was put in place to provide refuge and protection for refugees. This maxim does nothing if it does not accord with international law and refugee rights.
A key principle of global refugee and rights law, non-refoulement prohibits everyone from being expelled or returned to a country where their life or freedom is under threat — IHL includes the same point with respect to civilians in armed conflicts. It was established in Article 33(1) of the Refugee Convention from 1951 and is mandatory for all states. It provides a safeguard against torture, cruel treatment or permanent damage. This Treaty is respected as a custodian of human dignity enshrined in the Covenant against Torture and International Covenant on Civil and Political Rights. This contrasts with serious limitations in the application of non-refoulement, especially to unsuccessful asylum seekers. Those are the people who have had their asylum case denied and they in a very vulnerable place. Not refouled, but deported — that is to say sent back against the in-principle protections of non-refoulement and returned to countries where they may be at really serious risk of harm as persecuted or vulnerable persons. This is a set of challenges that are as complex and layered in their legal, procedural, and humanitarian dimensions. These unambiguous legal obligations are clouded by inconsistent state practices, compounded even further by the failure to establish effective oversight mechanisms resulting in an increased likelihood of refoulement and a lower protection for innocent victims.
This research study seeks to address these problems by examining the extent of protection provided to rejected asylum seekers under the non-refoulement principle and identifying gaps in the existing international legal framework. The main research questions are which non-refoulement norms they entail, and how far do these protect the interests of rejected asylum seekers in terms of their rights to freedom? What have been their failures of law and administration which mean they do not offer protection against refoulement to these people? How international law should evolve to protect the rights of failed asylum seekers?
The starting point is that the Indian judiciary in word and deed internalized non-refoulement. A couple of research questions that this paper intends to address are:
- What is meant by the normal character of non-refoulement?
- What has been the development in international jurisprudence of non-refoulement?
- Non-refoulement in the Indian Legal system
3.1 The principle of Non- Refoulement: Establishment as customary International Law
Until 1930, there was no such concept of nonrefoulement. Then the concept was popularized. But because of humanitarian concerns migrants do get a protection. The problem of refugee protection is not new to the world. Non-refoulement: Protecting Refugees from Human Rights Catastrophe The international community has created the principle of non-refoulement in order to protect nations states and refugees alike. This is a central idea embodied in state practice and critical to the development of international refugee law.
They form the basis of law when a question is considered or referred to Article 38(1)(b) Rome Statute.For a rule to be considered international customary law, there must follow from the established practice of states and from an opinion juris sive necessitates — i.e., evidence that those practices are regarded as requisite or normal. This approach must also have a global appeal over time in multiple nations.
In the Nicaragua v. United States of America, the Court noted that a rule is customary when: “[T]he evidence demonstrates with acceptable clarity that state practice… indicates how states are bound to act and then stated some assumptions in relation to it. Play inconsistencies are regarded as violations of the rule, not proof of another new rule. The State that violates an established rule and uses one of the definitions or reasons within the norm to account for its action, may be insight questions about this definition.
- Research Methodology
Because of the complexity of examination required regarding legal, ethical and human rights aspects within principle non-refoulement, for this paper I use research methodology called The Human Rights Dilemma of Rejected Asylum Seekers: A Critical Analysis Through a Go -behind Study. This section briefly explains the research methodology, data sources of this investigation as well as provides an analytical framework and procedures used in order to conduct analyses. The study is a qualitative one, and the analysis was done based on texts from law (texts such as constitutions, legislations of all levels) legalized by regulation norms in force; court cases or administrative struggles dealt with through judicial decisions); theoretical categorization. This particular problem would be well-suited to a qualitative method that permits the close examination of complex legal concepts and doctrines in their various jurisdictional modes. Its comparative aspect comparing non-refoulement approaches of various legal systems, might also enhance understanding of how the concept is applied or confronted in different parts around the world.
4.1 Data sources
The research uses primary and secondary sources to examine the principle of non- refoulement, examining international treaties, case laws, and human rights organizations perspectives on its effectiveness.
4.2 Analytical Framework
This research uses legal analysis, case studies and comparative analysis to examine the principles of non-refoulement in domestic legal systems, highlighting human rights implications for rejected asylum seekers.
4.3 Data Collection
Data collection involves reviewing international treaties, case laws, academic literature, and human rights reports to understand the principle of non-refoulement and its impact on human rights.
This methodology provides a thorough and critical analysis of the human right issues faced by rejected asylum seekers focusing on the legal and practical challenges of non-refoulement implementation.
- Literature Review
Non-refoulement is a fundamental principle of international refugee law, included in the 1951 Refugee Convention and its 1967 Protocol alongside other important human rights treaties. Non-refoulement prohibits states from returning any person to a state where their life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group or political opinion. This principle is a specific safeguard for refugees, yes, but it reflects the broader international commitment to human dignity and non-persecution that has existed from well before even 1951.
Theorized origins of non-refoulement are primarily traced back to the general human rights principles, such as right-to-life and prohibition against torture or inhuman treatment expressed in the Universal Declaration on Human Rights (UDHR) and International Covenant for Civil and Political Rights(ICCPR). Non-refoulement is considered a non-derogable obligation for states, because “these treaties are aligned with broad moral and philosophical codes which emphasize the inviolability of certain rights regardless of an individual’s legal status.
But applying non-refoulement to asylum seekers has more complex legal and ethical implications when it comes to people whose applications are denied. The competing priorities of state sovereignty and border control, on the one hand, and humanitarian responsibilities under international law (and sometimes domestic standards), on the other have rendered this a heavily contested terrain in literature. A small cohort of academics contends that the principle of non-refoulement should be universally applied to any person, whatever their legal status; this makes it a core human rights standard. Others argue that states have a right to control entry into and exit from their territories, which means non-refoulement should not apply except in the case of individuals recognized as refugees.
5.1 Gaps in the Literature
Although non-refoulement is a well-established concept, there is scant literature that focuses solely on the human rights of rejected asylum seekers. A common thread in the literature on this matter is that it privileges a legalistic and procedural understanding of non-refoulement, ignoring how denial of asylum exemplifies these failed norms through their effectual exclusion. This gap is alarming especially since more and more asylum-seekers are being rejected on a global scale as states increasingly move towards a restrictive interpretation of non-refoulement.
Empirical research addressing the actual effects of non-refoulement on rejected asylum seekers has been lacking, which constitutes a remaining critical gap. Although this principle is widely discussed in theoretical terms, there has been a little empirical investigation into what it means when the protection against refoulement is not applied and people are returned to situations that may be harmful. This omission in the literature means a key part of human rights abuses has not been investigated and overall we are far from understanding all aspects of what the principle entails.
The third gap is the failure to adequately consider a sports cape of international and regional human rights bodies in protecting the rights of refused asylum seekers. Although some of the existing literature has alluded to mechanisms such as that offered by UNHCR or even broader legal frameworks related, for instance, to certain national and regional human rights schemes (i.e. regarding potential intervention exigencies in non-refoulement cases), there seems significant space for a more thorough examination on how could these entities intervene (or have been intervening) thwartingly concerning refoulments at risk. This is especially important for rejected asylum seekers, who often do not have the same level of legal protection as refugees.
Moreover, more work is required that investigates non-refoulement processes in the construct of state practices of immigration control. Indeed, various states have established what appear to be principles based on their non-refoulement obligations when in reality they amount effectively to refouling those denied asylum back into danger. A more nuanced analysis is needed regarding the logic with which these policies are implemented and their human rights impact.
- Method
According to the principle of non-refoulement, a fundamental concept in international refugee law,[3] states cannot expel or return (“refouler”) refugees where they would be subject to persecution. By contrast, the fate of rejected asylum seekers—people whose homeland has turned down their claim for political refuge—is a delicate human rights conundrum. Although the principle attempts to shield refugees from persecution, its extension into failed asylum seekers is controversial and heterogenous in national jurisdictions — sometimes resulting in foreign citizens facing human rights abuses.
6.1 Case studies
Hirsi Jamaa and Others v. Italy [2012] — In this landmark case, the European Court of Human Rights (ECHR) found that Syria violated his elements in respect to human rights law for not processing protection claims prior to intercepting African migrants at sea bound for Italy and returning them to Libya. The court highlighted the universality and erga omnes character of non-refoulement obligations, extending even to rejected asylum seekers— at least in cases where states fail to conduct individualized assessments on possible risks upon return
M.S.S. and Belgium, Greece (2011): Case of an Afghan asylum seeker whose application for asylum was rejected in Belgium who was then removed to Greece under the Dublin Regulation; The ECHR declared that Belgium as well as Greece had violated the principle of non-refoulement by sending back an asylum seeker to inhumane and degrading conditions in Greece. But this case also brought to light the gravity of automatic returns for those asylum-seekers whose claims were rejected without propersafeguards.
Regarding non-refugee cases Al-Skeini and Others v. United Kingdom (2011); The judgement in this decision of the ECHR reflects generally on extraterritorial application Human rights obligations respect by member states [ II ] The United Kingdom has been adjudged liable for human rights abuses against Iraqi civilians during the time when it occupied Iraq. The ruling establishes that states, including for rejected asylum seekers Compliance with Non-Refoulement Obligations in Extraterritorial Operations must respect their non-refoulment obligations (non-return).
6.2 Legal analysis
The principle of non-refoulement is codified in a number of international legal instruments, including the 1951 Refugee Convention and its Protocol (1967). The exemption of Article 33 from the Refugee Convention is clear that a state party to it shall not return or expel any refugee to territories in which his life, freedom and safety would be subject on account of race، religion، nationality، membership of a particular social group or political opinion. This principle also has a place in regional human rights treaties like the Europena Convention on Human Rights (Article 3) and American Convention of Human Rights(describing under Article-22).
On top of that, the non-refoulement rule has crystallized as a customary law which is also applicable to States not party to Refugee Convention. ECHR interpretation The refugee non-refoulement principle and prohibition of torture or inhumane treatment have also been discussed by the ECtHR, stating that according to its established case-law “the responsibility for interpreting and applying the (Convention) rests primarily with [ECtHR]” 10 recognizing saving human lives from acts violating European Convention on Human Rights as a principal aim without specific authorities has where refered to fundamently protect these rights. For many years now, it is widely accepted that such protection applies not only towards asylum seekers or refugees who are already within state´s territory exerciseing their right to seek refuge(Article3 ) but towards every single individual irrespective if he/she currently possess national visa//passport stays outside receiving countries borders?!.
Yet application of non-refoulement to rejected asylum-seekers is controversial. The classic state line is that if a claim has been fully heard and rejected in (a) fair procedure(s), non-refoulement simply does not apply. The assertion has been used to justify serious deprivations of rights, namely the expulsion to a country where rejected asylum seekers risk facing threats against their life and liberty without legal protection or any examination of new evidence.
6.3 Comparative Analysis
The current practice of non-refoulement obligations significantly varies across countries due to diverse approaches to international law and human rights. Firstly, Germany is often praised for non-refoulement due to its well-developed asylum system. The German Federal Constitutional Court has repeatedly decided that “persons whose asylum application is inadmissible will not be transferred to countries where they face a real risk of being subjected to torture or inhumane treatment”. In reality, the German system is designed in a way that ensures individual assessment, followed by numerous legal remedies that allow even a rejected asylum-seeker to legally challenge the deportation decision. Secondly, the example of the U.S. is mixed due to a recently declining commitment to international law. While the U.S. 1980 Refugee Act provides the legal basis for non-refoulement, some of its policies, such as the “Remain in Mexico” strategy and the increased use of expedited deportations of asylum-seekers, increase the risk of leaving the asylum-seekers without legal protection, including non-refoulement safeguards. Moreover, the U.S. Supreme Court has recently validated some initiatives that have shortened the time for legal challenges for asylum-seekers because of national security needs. Australia is one of the examples where the commitment to non-refoulement is virtually non-existent because the policy of “offshore processing” leaves no legal recourse to the asylum-seekers. At the same time, it should be mentioned that “Australia has rejected allegations that it has violated the non-refoulement principle and asylum-seekers’ rights by sending thousand(s) of them into offshore detention” for the purpose of maintaining national interest and discouraging irregular migration. Contrarily, Canada remains one of the positive examples of non-refoulement in practice because its courts have consistently required that rejected asylum-seekers should not be sent back to the countries where they may face torture. Additionally, the Canadian Immigration and Refugee Protection Act explicitly contains the ban against non-refoulement in sec. 97.
- Conclusion
“Would the setting up of an appropriate legal structure or framework not help to provide a measure of certainty in the states dealing with the problem of refugees, and provide greater protection for the refugees”?
Justice Bhagwati
The principle of non-refoulement is universally established in international law. However, it is considered a ‘weak customary concept’ as nation-states prioritize internal laws. The revolution in refugee rights has led to substantial improvements in India. The Indian judiciary aims to protect refugees’ rights, but without specific legislation, established guidelines are lacking. The article elaborated on how the Indian judiciary established the non-refoulement concept in the nation. Uniform law is necessary to protect refugees’ rights and provide procedures for determining their status. Harmony between international and domestic legislation is necessary.
Attitudes towards those seeking refugee status in the nation are also important. The principle of non-refoulement must be clearly stated to strike a balance between national security and refugee rights, providing long-term solutions to their problems. Refugees face significant challenges and cannot be returned to their own country due to dire circumstances. Governments in India must establish institutional channels to provide aid to those in need. These individuals require the care and protection of the world community, particularly the host nation. Specialized officials with experience in refugee protection should be appointed at all air and marine ports to focus on the needs of refugees. Denying people a secure and dignified living violates the international norm of non-refoulement. Therefore, moral considerations are necessary for finding a solution. To ensure successful administration, communities should establish autonomous entities to provide local aid to refugees. Providing precautions is not enough; a new ‘overarching approach’ is necessary to address the issue. Enacting consistent legislation for refugees requires updated information based on actual evidence, such as the likelihood of persecution if they return to their home country. Finally, there is a need to explore innovative non-refoulement policies that provide safe sanctuary for refugees instead of returning them until their status is determined.
By Gargi Singh
Symbiosis Law School, Pune