What is Non-Refoulement Principle?
Non-refoulement is a principle of customary international law prohibiting the expulsion, deportation, return or extradition of an alien to his state of origin or another state where there is a risk that his life or freedom would be threatened for discriminatory reasons. The institute is widely regarded as one of the pivotal principles of refugee and immigration law.
At least in its part which prohibits the “return” of an alien to the country where he might be subjected to torture, the principle of non-return constitutes so called jus cogens rule – a rule from which no derogation is permissible and which is compulsory for all members of international community.
Since the Refugee Convention has been incorporated into the UK legal system, non-refoulement principle forms an integral part of the UK’s legal system and is consistently applied by the competent bodies and the courts of the land. This was first recognised in the R v Secretary of State for the Home Department, Ex p Sivakumaran, and then confirmed in the series of statutes regulating immigration and asylum.
Who can benefit from the Non-Refoulement Principle?
Refugee is a person who, due to a well-founded fear of being persecuted for discriminatory reasons is outside the country of his nationality or previous habitual residence and is unable or unwilling to return to that country or subject himself to the protection of that country because of the fear of persecution.
Asylum seeker is a person who claims that his expulsion from the United Kingdom would be contrary to the UK’s obligations under the Refugee Convention. In such manner, an asylum seeker applies to gain the status of a refugee which in turn gives him a full range of rights guaranteed by the Refugee Convention.
Irrelevance of the Legality of Entry into the Asylum Country
From the perspective of the application of the non-refoulement principle, it is irrelevant whether a person relying on the principle entered into the United Kingdom legally or illegally. Even persons who do not hold a valid UK Visa, or national passport or other valid travelling document of a country of origin can appeal on the grounds of non-refoulement.
What is Perceived as the Risk for Life or Liberty?
The person relying on the non-refoulement principle must show, as in the case of asylum seeking, that there is a reasonable degree of likelihood that he will be subjected to persecution, torture, inhuman or degrading treatment or punishment, deprivation of liberty or other serious infringements of physical integrity, liberty or life. Obviously, deprivation of liberty for criminal offences in a manner which does not constitute inhuman or degrading punishment cannot be perceived as a ground for the activation of the non-refoulement principle. The standard of proof of reasonable likelihood is significantly less strict than the one applied in criminal law cases where the facts need to be proven “beyond reasonable doubt”.
For more information on:
- Where the Person cannot be “Returned”?
- How is the Argument of Non-Refoulement Raised?
- Non-Applicability of Non-Refoulement