To leave or not to leave? Is it time to reconsider the role of State intent within ‘constructive refoulement’?

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The aim of international refugee law is ultimately to ensure those fleeing their country of origin due to persecution can seek refuge elsewhere. This is a key difference between refugees and internally displaced persons – with the former needing to flee beyond their country of origin’s borders to obtain safety. Having an “elsewhere” (i.e., another State) to flee to is therefore fundamental to one’s ability to seek asylum.

What happens, then, when this “elsewhere” is no longer a safe haven, but yet another hostile land?

This is the reality many refugees and asylum seekers face today, often fleeing persecution only to be confronted with ongoing dismal treatment in their country of asylum. This has led to a growing, though largely unsettled, body of law exploring how host State treatment of asylum seekers and refugees is governed by international refugee law.

What does the law say?

In their recent EJIL: Talk! blog, Tilman Rodenhäuser and Padmaja Menon explored the prohibition against ‘constructive refoulement’ within international refugee law and international human rights law. I recommend reading their blog in full, for a broader picture of the well-established principle of non-refoulement and insight into the growing jurisprudence on ‘constructive refoulement’, before returning to this blog. This blog has been written in response to their work, with the hope of furthering the conversation.

In summary, however, ‘constructive refoulement’ is currently understood as the process by which host States intentionally compel asylum seekers and refugees to leave via indirect means. Unlike traditional forms of refoulement, therefore, this does not include forcing asylum seekers and refugees onto boats or planes and returning them to their country of origin when unsafe to do so. Instead, it may look like host States depriving asylum seekers and refugees of the resources needed to survive and/or creating conditions so intolerable that it indirectly forces them to leave or “voluntarily” repatriate (see here, page 318, and here).

In their piece, Rodenhäuser and Menon provide three elements that, together, make an act or omission by a host State constitute constructive refoulement. One of these key elements, as reflected above, is that the host State’s (in)actions must intend to cause an asylum seeker or refugee to leave. This emphasis on State intent, however, creates an unworkable threshold for a number of reasons, which shall be explored below.

Does the “intent threshold” really apply to asylum seekers and refugees?

Firstly, as Rodenhäuser and Menon point out, the inclusion of intent as one of the criteria for constructive refoulement is drawn from the International Law Commission’s (ILC) Draft Articles on the Expulsion of Aliens (Draft Articles). The ILC’s Draft Articles are not, however, grounded in international refugee law and thus do not reflect the protections afforded to refugees under the 1951 Refugee Convention. Draft Article 10(2), which outlines the need for State intent when determining whether aliens have been wrongfully subject to ‘disguised expulsion’, is based upon the Iran-United States (Iran-US) Claims Tribunal and the Eritrea-Ethiopia Claims Commission (see here, pages 16 and 17).

This is problematic, since neither of these bodies have dealt with cases concerning the constructive refoulement of refugees or asylum seekers. Instead, the Iran-US Claims Tribunal operates as an investor-State dispute settlement, allowing US foreign investors to bring claims against Iran, and Iranian nationals against the US, for losses faced from the fallout of the 1979 Islamic revolution. Whilst the Eritrea-Ethiopia Claims Commission dealt with claims for damages, brought forward by both governments, against one another for wrongful losses and deaths resulting from the two-year war (1998-2000) between Eritrea and Ethiopia.

Thus, this threshold for intent was established for determining State responsibility when dealing with “investor-State” or “State-State” disputes. It is therefore not directly applicable to situations faced by asylum seekers and refugees (see here), and it is not an appropriate threshold to dictate the suitability of host State’s acts and omissions that affect them.

What of (in)actions that may not intend to, but clearly have the capacity to, compel asylum seekers and refugee to leave?

Another issue arising from this threshold is that many asylum seekers and refugees are often subject to dire conditions in their country of asylum due to policies that are, on paper, intended to curb undocumented economic migration (see here). As States, particularly in the Global North, have been ramping up efforts to make arriving and staying on their shores as difficult as possible for undocumented migrants, policymakers often report that such policies are not intended for “genuine refugees” (see the New Plan for Immigration policy statement for examples of such rhetoric).

When we look at the reality on the ground, however, it is evident that policies aimed at addressing undocumented economic migration frequently have negative consequences for asylum seekers and refugees. Consider asylum seekers in the UK, for instance, who (unless pregnant) can be detained indefinitely and at any time without warning. Such asylum seekers spend their days in detention without any real certainty, waiting and wondering when they will be released (or worse, deported) (see here, page 14). This has led some to describe their time seeking asylum in the UK as the worst thing they have ever experienced (see here, page 5).

Here, the issue of intent arises as the above treatment of asylum seekers can be justified on the grounds of managing migration. Since immigration detention is often used to hold migrants while verifying their identity, policymakers could rest easy knowing that proving these policies intend to compel asylum seekers to leave would be no mean feat. Thus, since such policies intend to stifle undocumented economic migration and uphold State sovereignty on paper, any unintended consequences for asylum seekers and refugees, which might have the effect of compelling them to leave, are not attributable to the State.

And what might the reality be for asylum seekers and refugees when proving State intent?

Lastly, if we consider how asylum seekers and refugees might go about proving State intent, we can see that such an approach quickly provides few protections. Take an asylum seeker in England or Wales, of which the majority find themselves without legal aid (51% as of October 2023). If said asylum seeker is among the majority without access to a legal aid lawyer, they may not have the financial means to get representation to prove intent (particularly since gathering evidence to prove intent could be a difficult and protracted process). If they do have the means to pay for an asylum lawyer, they will likely be working with them to have their asylum claim processed as quickly as possible. If they then found themselves victim to constructive refoulement, and thus needing to prove State intent, this would likely be at a later stage in their asylum process when any funds for legal representation may well have been exhausted.

If they are instead among the minority who do have access to legal aid representation, they will be using their minimal resources to gather evidence and build a case for their asylum claim. However, if their stay in the UK becomes unbearable and they seek to make a claim against the government for constructive refoulement, at which point could this take place?

Would an individual need to have left the host State before bringing a case against it? In which case, they may have to return to an unsafe situation, where their life or safety is at risk, in order for them to bring this claim forward. If individuals must return before proving that the host State’s actions or omissions intentionally compelled them to do so, this would, by its very nature, defeat the underlying principle of non-refoulement –rendering the prohibition against constructive refoulement fruitless. Even if they could put a claim forward while remaining in the host State, how would they do so if they have no access to legal aid and do not have the means to pay for additional legal representation to do so?

Conclusion

It is becoming increasingly clear that asylum seekers and refugees need greater protection from host State policies that make their staying unbearable. Although the expanding body of law in this area is welcomed, the current focus on State intent leaves individuals without adequate protection from policies and (in)actions that create conditions so hostile (whether intended or not) that they feel compelled to leave and (in)voluntarily return to their country of origin. Though this blog raises more questions than answers, it is evident that a new approach is needed to ensure the prohibition against constructive refoulement is not rendered redundant. It is also clear that with such a focus on intent, the consequences of host State policies and (in)actions have been disregarded thus far. Going forward, rather than focusing on the intent of State acts and omissions, might we be better placed focusing on their consequences?

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