Asylum And Human Rights: Non-Refoulment, The Right To Life And Prohibition Of Ill-Treatment

Imagine a person reading this article, only to be abruptly jolted by the sounds of gunfire and explosions in the very neighborhood he called home. Along with his wife and son, he is forced to flee, leaving behind all their possessions—without clothes, money, food, or any resources. They are overcome with utter terror, as this is the last thing they could ever have imagined. After hours of running, they found some shelter that was crowded with families like their own. The situation was grim: there was an acute food shortage, and even space to move around was a luxury. Suffocated into a dingy room, they start hoping that this human tragedy unfolding all around them will end soon. In desperation, the husband arranges with a smuggler to get them across the border, and, almost before they know it, they are moved from a small room into a far more crowded space as if human cargo. What was promised as a boat for 20 turns out to carry over 50 families. Tragically, the boat capsizes, and while many are rescued, the husband realizes that his wife and son are missing. Grief-stricken, he arrives at a refugee camp, where food and clothing are available, but he knows one thing he will never regain—the “opportunity” to rebuild his future. Conflicts, persecution, and other human rights violations force thousands of people each year to flee their homes and seek safety in Europe. These desperate journeys can be full of dangers and hundreds lose their life in the process.

Principle Of Non-Refoulment

The principle of non-refoulment is a fundamental customary norm of international human rights law and refugee law, applicable with the principle of “erga omnes” and with the status of “jus cogens” (no derogation is permitted), which means that no one, regardless of their status, should be returned or removed to a country they would face torture, cruel, inhuman or degrading treatment or punishment and other irreparable harm, or other serious human rights violations. In the context of refugees (even if not recognized as such), this principle also means that no one should be removed ("refoulé") to the frontiers of territories where life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion.^[2]

Internationally, non-refoulement is regulated for refugees in particular in Article 33^[3] of the Geneva Convention relating to the Status of Refugees (1951). Under international human rights law, the prohibition is explicitly included in Article 3 CAT^[4] (Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) and the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED)^[5]. No derogation, exception, or limitation is allowed in such provisions. Also, you may find this fundamental principle implicitly in other major instruments as in the International Covenant on Civil and Political Rights (ICCPR). Article 7^[6] contains the prohibition of subjecting individuals to specified acts as torture, inhuman, or degrading treatment or punishment.

Right To Life (Article 2), ECHR

Article 2^[7] ECHR (European Convention on Human Rights) provides the right to life.^[8] The ECHR proscribes refoulement (removal, extradition, or other transfer) to another state if substantial grounds have been shown for believing that the person would face being subjected to the death penalty there (Al-Saadoon and Mufdhi v. the United Kingdom, para. 123 and 140-145^[9]; A.L. X.W. v. Russia, para. 63-66^[10]). The applications dealing with Article 2 are related to Protocols 6 and 13 (Abolition of death penalty). Anything constituting a risk to the applicant's life can be relevant under Article 2. The majority of removal cases in respect of Article 2 also raise concerns under Article 3. This is because the principles, in both articles, are based on the same principles. The ECtHR applies those principles to consider both articles together or one article in conjunction with another, (F.G. v. Sweden at para. 110^[11]; L.M. and Al Nashiri v. Poland, para. 577^[12], L.M. and Others v. Russia, para. 108^[13] and J.H. v. United Kingdom, para. 37^[14]). The critical distinction, for present purposes, between Articles 2 and 3 of the ECHR is that whereas in Article 2 cases it must be a virtual certainty that death will occur on return, in Article 3^[15] cases it is sufficient that substantial grounds be shown for believing that the person to be removed would face a real risk of being subjected to torture or other forms of ill-treatment proscribed by that Article. As for asylum seekers, below are 2 relevant ECtHR cases where the violation of Article 2 may have happened before the actual harm took place or afterward.

1. A.I. V. Switzerland^[16]: the ECtHR held in particular that, on account of his political activities in exile, the applicant might have attracted the attention of the Sudanese intelligence services. Upon investigation, it was determined that there were valid reasons to believe that the individual faced a potential threat of being arrested, questioned, and subjected to torture upon reaching Khartoum Airport. Violation of Article 2 and Article 3 (prohibition of inhuman or degrading treatment).
2. N.A. V. Finland^[17]: the case concerns a decision to deport an asylum-seeker whose application was rejected. He was killed shortly after his return to his country of origin, Iraq, where he had previously suffered life-threatening incidents. The ECtHR states that it was an inadequate assessment of risks and found a violation of Article 2 and Article 3.

Article 3 (ECHR)

To fall within the scope of Article 3^[18] of the ECHR, it is required that there is a risk of being subjected to ill-treatment or exposed to an inhuman or degrading situation. (Sufi and Elmi v. the United Kingdom, para.212^[19]: indiscriminate general violence in Mogadishu and conditions in the IDP camps in Somalia.) The nature of the impugned measure (expulsion, extradition, etc.) and the type of ill-treatment (in extreme material destitution, general violence, etc.) are irrelevant. The grounds for persecution and the causal link foreseen in the refugee definition of Article 1A of the 1951 Geneva Convention^[20] are not required for the application of Article 3 of the ECHR. The protection of Article 3 is absolute (Saadi v. Italy^[21]). It is applicable irrespective of what the applicant has done before or during her stay in the host country. The nature of the applicant's alleged offense is irrelevant. Consequently, the applicant's conduct, however undesirable or dangerous, cannot be taken into account.^[22] It should be noted that Article 3 is a non-derogable right, hence no derogations are permissible under this provision even 'in time of war or other public emergency threatening the life of the nation' (Article 15^[23]).

Access To Territory

Borders are not zones of exclusion or exception for human rights obligations.^[24] States are entitled to exercise jurisdiction at their international borders but must bear in mind that they have international obligations under the 1951 Geneva Convention and the principle of non-refoulement. When States don't give access to the territory and decide to remove or push someone, in some circumstances, they may be in breach of the protection against refoulement as per Article 3 ECHR and Article 33 of the 1951 Geneva Convention (non-refoulement), as well as the right to seek and enjoy asylum as per Article 18 of the European Charter of Fundamental Rights: Article 3 may be invoked if the person has not been given the chance to have a proper and individual assessment of the risk he or she may face in the country that he or she might be returned to. Safeguards provided by ECtHR must be respected. These safeguards include access to the asylum procedure, access to a lawyer and interpreter, the right to be heard, and the right to have an effective remedy, among others. In these areas, there are also some special categories of vulnerable groups of persons in need of international protection that must be taken into account in the assessment of granting access to territory and the obligation to not "refoule" them, as in the case, for example, of unaccompanied children. States have obligations towards children and they are afforded special protection because of their vulnerability by the Convention on the Rights of the Child (endorsed by the ECtHR).

The author is a second year Law Student pursuing B.A. LL.B. at Integrated Law Course (ILC), Faculty of Law, University of Delhi. Views are personal.