Does international law prohibit ‘constructive refoulement’?

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Earlier this month, the UN High Commissioner for Refugees (UNHCR) stated that 43.4 million people worldwide are refugees – many of whom flee the over 120 ongoing armed conflicts. While voluntary repatriations are the preferred durable solution for the largest number of refugees who dream of going home – in safety and dignity – one day, the UNHCR has long cautioned that “for many refugees a decision to return is dictated by a combination of pressures due to political factors, security problems or material needs.” So, when are returns voluntary? From Lake Chad Basin, the Middle East, Southeast Asia, Europe and Australia, reports of the last years reveal instances of refugees and other persons protected against refoulement being pushed to return, purportedly ‘voluntarily’, through a range of measures, including payments to facilitate return, deprivation of economic opportunities, restriction of access to essential services, limitations of freedom of movement, confiscation of property, threats from armed groups and militias, or arbitrary arrests.

Under international refugee law as well as human rights law, the principle of non-refoulement forms the cornerstone of the protection of refugees, asylum seekers, and other persons protected against refoulement. It prohibits them from being returned against their will to a place of persecution or other fundamental rights violations. A person who is protected against refoulement may, nevertheless, return voluntarily. However, there is no agreed legal standard to determine when a return is truly voluntary and international law does not define a clear line at which State action to ‘incentivize’ or ‘induce’ returns amounts to refoulement. While experts have spoken against ‘constructive refoulement’ (see here, p. 134 and here p. 472-473), in-depth academic studies are only beginning to emerge (also here and here). In this tension, refugee law, human rights, and public international law experts rely increasingly on the concept of ‘constructive’ or ‘disguised’ expulsions or refoulement.

Prohibition against ‘Constructive’ Refoulement?

At present, no international treaty or soft law instrument mentions ‘constructive refoulement’ or explicitly prohibits measures that covertly force a person to leave a State’s territory. Yet, legal experts and arbitrators have found that States may not circumvent the prohibition of refoulement by resorting to disguised measures that effectively force people to leave. For instance, the UNHCR has on occasion invoked a prohibition against ‘constructive refoulement’, characterizing it as “creating or presenting a coercive environment through lack of protection, material destitution or the infliction of living conditions that makes return the only feasible option”. Likewise, the International Law Commission (ILC), in Article 10(1) of its Draft Articles on the Expulsion of Aliens (Draft Articles), has stated that “any form of disguised expulsions is prohibited”, clarifying that States do  “not have the right to utilize disguised or indirect means or techniques in order to bring about the same result that it could obtain through the adoption of a expulsion decision”. The International Committee of the Red Cross has taken a similar view, and the UN Special Rapporteur on Torture opined that deliberate practices which amount to ‘refoulement in disguise’ are incompatible with the principle of good faith.

In determining the legal elements of such a prohibition, the work of the ILC and the Committee Against Torture (CAT) are particularly instructive. The ILC, in Draft Article 10(2), identifies the following constituent elements of ‘disguised expulsion’: There must be (a) an act or omission (including supporting or tolerating relevant hostile acts by non-State actors), (b) that is attributable to the State, and (c) intended to provoke the departure of the individual, (d) other than in accordance with the (international) law, which (e) results in the forcible (as opposed to voluntary) departure of the alien. In developing these elements, the ILC relied on the work of the Iran-United States and the Eritrea–Ethiopia Claims Commissions, which both held – in slightly differing terms – that to constitute ‘constructive’ expulsion, “those who leave a country must have experienced dire or threatening conditions so extreme as to leave no realistic alternative to departure”, coupled with the State’s intention to ”cause the aliens to depart”.

Applied to the principle of non-refoulement, the CAT concluded in its General Comment that certain ‘dissuasive measures’ would violate that principle if they “compel persons” to return “to their country of origin in spite of their personal risk of being subjected there to torture and other cruel, inhuman or degrading treatment or punishment”.

In response to the ILC Draft Articles and the CAT General Comment, some States have questioned whether such a prohibition exists under public international law or the Convention Against Torture, while others concurred with the experts (here and here).

While there does not seem to be a uniform view among States on whether international law prohibits ‘constructive’ refoulement, experts have identified three legal elements that characterize the wrongful act of ‘constructive refoulement’. Acts or omissions may amount to ‘constructive refoulement’ if it (1) is attributable to the State; (2) forces, compels, or coerces a person to leave the State’s territory, meaning the State creates circumstances that are so severe as to leave the individual with no real alternative other than leaving to a country in which there are substantial grounds to believe that the person would be subjected to violations of certain fundamental rights; and (3) is committed with the intent to bring about the person’s departure.

Applied to reality – which acts would amount to ‘constructive refoulement’?

Based on the reports of human rights organizations as well as judicial decisions, several situations can be identified in which prohibited acts of ‘constructive refoulement’ might be committed.

The first situation relates to refugees or asylum seekers who are forced to leave their country of refuge because they are threatened by, or subjected to, persecution. The case is clear if they are persecuted by State agents. However, this also includes situations where persecution or threats thereof emanate from non-State actors and the State is unwilling to protect the individual. Yet, not all failures of a State to protect the human rights of individuals within its jurisdiction against harmful acts of non-State actors, would amount to constructive refoulement. To constitute constructive refoulement, a State must have tolerated such acts with the intent to provoke an otherwise unlawful return.

Returns of persons entitled to international protection can also not be considered voluntary if they are  presented with the choice of either leaving a State’s territory or being subjected to certain forms of deprivation of liberty. Concretely, the CAT considers “detention in poor conditions for indefinite periods” to be a ‘dissuasive measure’ that would compel a person to return despite a valid claim to international protection. At the regional level, the European Court of Human Rights concluded that a person’s consent to returning to a State where they would face a risk of fundamental rights violations could not be considered voluntary if the person is deprived of liberty and given the choice between a) remaining in the State but in detention and without a possibility of obtaining the right to reside in that State in liberty; or b) returning to a place where they fear fundamental rights violations.

The case of refugees, asylum seekers, and other persons protected against refoulement  returning due to dire living conditions in their host countries is particularly challenging. Since most host countries are low or middle-income, and budgets of humanitarian organizations have undergone significant cuts, many refugees suffer real hardship. However, intentionally creating dire living conditions by withholding or reducing lifesaving assistance (especially food, water and other essentials) to induce their repatriation cannot be lawful. According to the UNHCR, a refugee’s return cannot be considered ‘voluntary’ if the “host country authorities deprive refugees of any real freedom of choice through…measures such as…reducing essential services [or] relocating refugees to hostile areas”. Similarly, the CAT has stated that “cutting funds for assistance programs to asylum seekers, which would compel persons in need of protection…to return to their country of origin” would amount to measures prohibited under Article 3 of the Convention against Torture.

Finally, refusing to process claims for asylum or other forms of international protection, or unduly prolonging such processes, may also be a dissuasive measure compelling a person to leave. This would be the case particularly where it results in their recurring conflicts with immigration authorities or the deprivation of their liberty, or if the lack of status causes dire living conditions by severely diminishing their economic and so­cial benefits (the combination of elements thus reaching a threshold that effectively forces the person to leave). Relatedly, the arbitrary denial of refugee or other forms of protected status, which essentially entails the denial of the basic rights associated therewith, “can be [a] chief driver…in an involuntary decision to return to one’s country of origin”.

Provision of Financial and Organizational Assistance

Various States provide financial and organizational support for voluntary returns, often aimed at persons who are by law required to leave the country. In some contexts, such programmes have also been tailored to “those who have little chance of being granted asylum”. For example, asylum seekers who withdrew their claims and returned before a decision on merits was issued in their cases received the highest financial ‘bonus’, while rejected asylum seekers who left within a specific period received a smaller amount of money. Some States have also designed programmes offering refugees significant monetary incentives if they decided to return within short periods.

Programmes that aim to disincentivize persons from claiming international protection, or incentivize refugees or other persons to give up their protected status, might lead people to accept a real risk of persecution or other fundamental rights violations by returning to the State of origin. These people will face real risks of fundamental rights violations. But even if such measures are deemed lawful, policy makers have cautioned that they may be short-sighted in the case of persons with valid international protection claims. Persons who return to a country where they face a real risk of fundamental rights violations in exchange for money would be likely to flee again and, therefore, these policies may not meaningfully contribute to the global migration environment.

Conclusion

In the face of staggering numbers of people seeking international protection, too little burden-sharing among States, and shifts in State policies, refugees, asylum seekers and other persons protected against refoulement face growing threats of being pushed back into the countries they fled – not only through direct expulsions but also through a combination of disguised measures. If individuals protected against refoulement are faced with no real alternative other than leaving as a result of the measures adopted by host States to induce their return, it would likely violate the State’s international obligations. In other words, if States are prohibited from expelling individuals directly, they cannot use indirect or disguised measures to achieve the same result. Whether this principle will really assist persons seeking international protection may, however, depend on whether national and regional tribunals can invoke and enforce it.

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