Overview
This entry refers to activities by UNHCR and partners aimed at ensuring that access to territory for persons in need of international protection is upheld, refoulement is prevented and that adequate responses are given in the event refoulement occurs or is imminent.
The principle of non-refoulement obliges States not to expel or return (refouler) in any manner whatsoever a person to territories where his/her life or freedom would be threatened, i.e. where there is a risk of persecution or any other form of serious harm. This obligation is set out under the 1951 Convention, regional refugee law instruments, international or regional human rights law instruments and is binding under customary international law.
The principle of non-refoulement applies to both refugees and asylum-seekers. As refugee status is declaratory in nature, asylum-seekers must not be refouled prior to a final determination being made on their status by either the relevant Government authorities or UNHCR.
The principle of non-refoulement includes actions taken by a State to remove persons from its territory (including in its territorial waters). It is not, however, restricted to measures taken on the territory of the State concerned. It applies wherever the State is active through its agents, including outside its territory when it has effective control over that territory/places or over persons. The obligation can apply, for example, in so-called ‘no-man's lands' between two countries; on the high seas; or in so-called ‘international' or ‘transit zones' at land borders, airports or seaports. It is irrelevant that a State may have declared certain territory or places (e.g. airport zones) to be either outside the realm of international or national laws.
Relevance for emergency operations
Non-refoulement requires the priority attention of all UNHCR operations, including in emergency contexts. UNHCR’s interventions in emergency contexts are aimed at ensuring that all reasonable and feasible measures are taken by States and other actors to ensure access to territory, the prevention of refoulement; risks are monitored; and, in the event refoulement does occur, UNHCR responds appropriately.
Noting that everyone has a right to be protected from refoulement without discrimination, the principle of non-refoulement applies in all situations, including in the context of large-scale emergencies and mixed movements. It also applies to people who have entered or are present in a country regularly or irregularly, whether or not they have passed through immigration control, and regardless of whether (or when) they have presented themselves to the authorities.
Main guidance
Protection objectives
To ensure people are given access to safe territory where they can seek and enjoy asylum/international protection, by:
a) allowing them to enter the territory in order to seek and enjoy protection (people should not be turned away or pushed back at the border); and
b) preventing their forcible return or removal in any manner whatsoever to their country of origin or any other country where they are at risk of persecution or other forms of serious harm.
Underlying principles and standards
- The principle of non-refoulement is set out, inter alia, in Article 33(1) of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol as well as other relevant international or regional refugee or human rights law instruments.
- Article 33 is complemented by prohibitions on return contained in and developed under international human rights law, such as the absolute prohibition on return to torture or inhuman treatment or punishment and the prohibition of collective expulsion.
- As a norm of customary international law, the principle of non-refoulement is binding on all States, irrespective of whether or not they are party to the 1951 Convention or other international refugee or human rights law instruments.
- No reservations are permitted to Article 33 of the 1951 Convention or any other non-refoulement provision under international law. Further, States are also not allowed to suspend the application of the principle of non-refoulement in times of war or public emergency.
- Under Article 33(2) of the 1951 Convention two limited exceptions to the principle of non-refoulement are allowed. However, non-refoulement obligations under international human rights law continue to apply without any exception.
Protection Risks
- Asylum-seekers and refugees are returned or sent to where they face persecution or serious threats to their life if prevented from accessing safe territory or if returned to an armed conflict or to persecution. This risk may be particularly prominent when asylum-seekers and refugees move in mixed movements flows. (See Entry on Migrant definition)
- People may be forced to access safe territory through unofficial crossing points and/or by resorting to people smugglers, making the travel hazardous and dangerous, including being at a greater risk of exploitation by smugglers and falling prey to trafficking and other crimes.
- Persons with specific needs who are turned away at the border may also be placed at further risk in the absence of much needed care, treatment and/or services.
Other risks
Not taking action to prevent refoulement or respond in a timely and adequate manner to incidents of refoulement is a violation of a core principle of refugee protection. Responding to and interceding in relation to risks of refoulement are fundamental obligations of UNHCR Offices. Failing to do so can have serious reputational risks with long-term consequences for refugee protection and lead to questions of accountability.
Key decision points
- Human resources required for ensuring adequate monitoring for this priority activity to be mobilized and timely reporting undertaken.
- Depending on the context, advocate with Government authorities for UNHCR and partners, as appropriate, to have access to monitor border areas and entry points such as airports and seaports, and potentially, establish a permanent presence. In particular, if instances of refoulement occur or are suspected to occur on a regular basis.
- Interventions with the Government are undertaken in a timely manner and through appropriate channels.
- Involve, as appropriate, other protection partners, including the HCT/UNCT, OHCHR, UN Special Rapporteurs, UN Treaty Bodies and other UN mechanisms especially those with ‘urgent action' capacities, (I)NGOs.
Checklist: Preventing and Responding to Refoulement
Map actors/potential sources of information: border and entry-point monitoring is a primary source of information, but where this is not possible or not regular, information may be obtained through other sources such as asylum-seekers/refugees, community and religious leaders, local authorities and border officials, other UN agencies, NGOs, ICRC, media.
Conduct regular field visits to, for example, border areas and seaports and airports and develop contact with the relevant interlocutors in order to raise awareness and create information sharing channels.
Collect, triangulate, validate information and evidence, and report in your operation internally as well as to the Bureau and DIP as well as externally to partners, as appropriate.
Engage local authorities and border officials and offer training/capacity-building and/or material support/equipment. Please note that any support, other than training and capacity-building, to non-UN security forces needs to be compliant with the Human Rights Due Diligence Policy on United Nations support to non-United Nations Security Forces (see annex).
If the Government carries out screening of new arrivals at the border, be present and observe the process in order to ensure asylum-seekers and refugees are not denied entry into the territory.
Ensure that procedures and mechanisms are in place to identify and differentiate refugees and asylum-seekers from migrants (See Entry on Migrant definition).
Analyze the reasons behind the State's concern(s) or actions (why does the State refoule) and, together with the relevant authorities, seek ways to address those concerns while avoiding refoulement. This could be through the identification of measures to mitigate (perceived or real) security concerns of a large-scale movement of asylum-seekers and refugees, to address the needs of the local population arising from perceived or real competition over resources/livelihoods, etc.
Inform Bureau/DIP in accordance with the Administrative Instructions on Preventing and Responding to Refoulement (see below).
Intervene with the authorities and express concern with the authorities [e.g. through direct meetings, note verbale, public statement, etc. in line with the Administrative Instructions and the Operational Guidance on Preventing and Responding to Refoulement].
Contact colleagues in the country to which the person has been forcibly returned. Inform them of the incident and explore potential follow up possibilities, including verification of the return, their treatment upon arrival/return and ongoing safety and other conditions, as appropriate.
Policies and guidelines
Main contacts
As first port of call, the UNHCR Dep. Representative (Protection), UNHCR Asst. Rep. (Protection), and/or Snr Protection Officer in the country; or The UNHCR Regional Asst./Dep Rep (Protection) and/or Snr. Regional Protection Officer at the regional office (if applicable); or The Snr. Regional Legal Advisor in the respective UNHCR regional bureau, covering the respective country region, who in turn will liaise as required with the parent unit at UNHCR DIP.
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