Principle of Non-Refoulement in English Law

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?

Refugees

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 Seekers

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”. It is also less strict than civil law “balance of probability” standard according to which the claimant would have to show that it is more probable than not that certain facts exist or certain events could occur. The “balance of probability” standard was unequivocally rejected in asylum cases by the House of Lords in its Sivakumaran decision. It is therefore sufficient to show that there is a reasonable chance that a person could be subjected to a serious harm.

The person must show that he would be subjected to harmful treatment on the discriminatory grounds specifically enlisted in the Refugee Convention. These are race, religion, nationality, membership of a particular social group and political opinion. The House of Lords used “membership of a particular social group” to extend the application of the principle, among others, to gender discrimination and discrimination based on sexual orientation.

As the Lords decided in Adan case, the risk of serious harm does not have to come only from state agents, but also from non-state entities which are not under control of the state and which cannot be successfully restrained by the state authorities.

Where the Person cannot be “Returned”?

A person who successfully claims the application of the non-refoulement principle cannot be sent to any country in which he could face the risk of serious harm. This includes not only a country of origin, but also those countries which cannot guaranty the same application of the non-refoulement principle as applied by the UK authorities “since there could in principle be only one true interpretation” of the Refugee Convention as held in Yogathas case. However, as shown in this case, this does not mean that the interpretation of the principle by the foreign courts needs to be uniform with the UK interpretation. It suffices that it is considered consistent with the principles of the Refugee Convention as interpreted by the UK authorities.

How is the Argument of Non-Refoulement Raised?

The argument of non-refoulement is usually raised in the form of an appeal against the decisions of the Border Agency, Immigration and Asylum Tribunals, the Special Appeals Commission and other bodies involved in the process.

Non-Applicability of Non-Refoulement

Non-refoulement is, in principle, inapplicable in the cases where it is established that the person represents a risk to national security. This has to be established by the final judgment resulting in criminal conviction for a serious crime. However, as decided by the Special Immigration Appeals Commission, due to the non-derogable nature of the prohibition of torture, even such person could not be deported if he faces the risk of torture in the receiving country.