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DIPARTIMENTO DI SCIENZE POLITICHE
Corso di Laurea in Studi Internazionali (LM-52)
TESI DI LAUREA
National schemes of protection in selected EU Member States:
a critical discussion
CANDIDATA RELATORE
Alice Lacchei Prof. Marcello Di Filippo
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Abstract
The present work seeks to offer an analysis of national schemes of protection for vulnerable persons, by focusing on two main countries, the United Kingdom and Italy. The aim is to critically compare their national schemes of protection, which are added to protections regulated by EU asylum law and to understand their nature and function. Particularly, the evaluation is intended to bring out the reasons for granting such forms of protection and their potential international basis. Moreover, the study wants to show their scope and role in Italian and British asylum systems, without overlooking other EU Member States. Indeed, the present enquiry has revealed the need for referring also to other selected EU Member States, such as Denmark, Sweden and Germany, in order to stress the broad significance of these schemes of protection in the European Union context. Finally, the work attempts to draw attention to recent reforms adopted in the countries above mentioned, since they show some legal and political common trends.
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Summary
Introduction 5
Section 1
Schemes of protection in European Union Law 7
1.1 International Protection under the Geneva Convention and the New York Protocol 7
1.1.1 The evolution of refugee protection in international law until 1951 7 1.1.2 The Geneva Convention on Refugees and the New York protocol 11 1.1.3 Principle of non-refoulement according to the Geneva Convention 17
1.2 The principle of non-refoulement and the expansionist role of courts 24
1.2.1 The scope of the principle of non-refoulement in the international law 24 1.2.2 The expansionist role of the European Court of Human Rights 27
1.3 The Subsidiary Protection and the temporary protection 33
1.3.1 Complementary protection under international law 33
1.3.2 The EU Subsidiary Protection 37
1.3.3 The temporary protection 40
Section 2
National schemes of protection in EU Member States: legal basis, scope, evolution 45
2.1. A general overview of the trends in EU Member States 45
2.2 The case of the United Kingdom 49
2.2.1 The general context 49
2.2.2 The Humanitarian Protection 52
2.2.3 Discretionary Leave 56
2.2.4 The Restricted Leave 64
2.2.5 The leave outside the rules 66
2.3 The case of Italy 68
2.3.1 The general context 68
2.3.2 Humanitarian Protection before the 2018 reform 71
2.3.3 Humanitarian Protection and Italian Constitution 72
2.3.4 Humanitarian Protection and article 10 paragraph 3 of the Italian Constitution 77 2.3.5 Reasons for granting the residence permit on humanitarian grounds 79 2.3.6 The 2018 reform and the abolition of article 5 paragraph 6 of law no.286/1998 87
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2.4 Relevant national schemes of protection in other EU Member States 95
2.4.1 The case of Denmark 95
2.4.2 The case of Sweden 99
2.4.3 The case of Germany 100
2.5 The role of national protection schemes: a comparative evaluation 105
2.5.1 Reasons for granting a national protection 105
2.5.2 The trend of reforms 109
Conclusion 111
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Introduction
The present work aims to offer a deep analysis of national schemes of protection for vulnerable persons in some selected EU Member States, in order to stress their relevance in the European context. Since these national schemes of protection go beyond European Union Law and its harmonisation in asylum issues, the study seeks to understand how and why Member States integrate EU legislation in such subject. Particularly, it tries to highlight eventual international or national obligations leading some Member States to grant a form of protection beyond international protection under the 2011/95/UE Directive or temporary protection under the 2001/55/EC Directive.
In this respect, Section 1 – Schemes of protection in European Union Law is functional to make to emerge the scope of schemes of protection set out by international and European law. Thus, the aim of this section is to offer a necessary framework, wherein the issue of national schemes of protection addressed in Section 2 can be included.
For that purpose, it firstly focuses on refugee definition under the Geneva Convention and its principle of non-refoulement. Particularly, it seeks to address the evolution of refugee definition from the end of the 1st Word war to the elaboration of the 1951 Convention Relating to the Status of Refugees. Moreover, it analyses the scope of non-refoulement as defined in article 33 of the Geneva Convention, by dwelling on the main issues debated in legal literature.
Secondly, it pauses on the scope of non-refoulement as it has been extended by human rights law, in order to recognise those circumstances which are not covered by the 1951 Convention, however currently protected. Particularly, the work focuses on the role of international treaties but also international law enforcement bodies in expanding such principle. A special reference is made to the European Convention on Human Rights and to the jurisprudence of the European Court of Human Rights.
Consequently, the study passes to complementary forms of protection alongside refugee status under the Geneva Convention, which have emerged as a consequence of the non-refoulement extension. Particularly, the work will focus on the European context, by dwelling on the obligations of protection under the European Convention on Human Rights and EU complementary schemes of protection.
After defining all the circumstances covered by international and European asylum law, Section 2 – National schemes of protection in EU Member States: legal basis, scope, evolution addresses the key issue of the present work: national schemes of protection in some selected EU Member
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States. Firstly, the chapter offers an overview on that subject in order to stress its relevance in the European context. Secondly, it concentrates on two EU countries, the United Kingdom and Italy, by offering a comparative evaluation on their legal basis, scope and evolution, by underlying similarities and differences. These case studies have been selected for different reasons. Firstly, both countries have an interesting legislation and practice on national schemes of protection. Furthermore, a relevant number of residence permits based on such national schemes were issued in recent years. Moreover, both in the United Kingdom and Italy, reforms on the subject recently occur with the aim of restricting the reasons for granting a permit on humanitarian ground. Finally, both these national schemes of protection have some important references to international human rights law, particularly to the European Convention on Human Rights.
Although the analysis is mainly focused on the United Kingdom and Italy, the section seeks also to show the wider relevance of these national schemes of protection in other EU Member States, in order to stress that the issue has a broader scope than that one analysed in the present work. Thus, it may well be the starting point for further research on that subject. However, from the analysis of selected EU countries, and particularly of the United Kingdom and Italy, the work aims to trace some trends concerning the scope of domestic schemes of protection, the reasons for granting them and their national and international legal basis.
Finally, the work seeks to offer a critical comparative evaluation of selected national schemes of protection analysed, by particularly focusing on two main aspects. The first one concerns the reasons for granting such forms of protection and, consequently, their scope and eventual international basis. The second one refers to reform processes which interested Italy and the United Kingdom in recent years and which can bring out interesting trends.
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Section 1
Schemes of protection in European Union Law
1.1 International Protection under the Geneva Convention and the New York
Protocol
1.1.1 The evolution of refugee protection in international law until 1951
The contemporary protection regime has resulted from an historical and conceptual process starting after the 1st World War and coming to the signing of the 1951 Geneva Convention, while before 1919 the only protection regime for refugees was asylum granted by national States which maintained their discretion in authorising the refugees’ access and residence inside their territory. Different definitions of refugees and protection regimes developed during the period from 1919 to 1951 in order to deal with consequences of the two World Wars and influenced the final result of 1951 Convention. Indeed, as Perluss and Hartman point out, article 1A paragraph 2 is a coalescence of different approaches traceable in earlier definitions1. Particularly, they refer to Hathaway’s categorisation, which reveals three distinct trends in refugee definition from 1920 to 19502: the first one from 1920 to 1935, the second one from 1935 to 1939 and the last one from 1939 to 1950.
Specifically, according to Hathaway, during the first period from 1920 until 1935 refugees were defined in judicial terms as “persons outside their State of origins who have been effectively deprived of the formal protection of their government”3
. The second trend from 1935 to 1939 was characterised by a social approach since refugees were defined from a social perspective since social or political occurrences separated them from the State of origin. Finally, Hathaway reveals a third approach from 1939 to 1950, when refugees were defined in individualistic terms as “persons in search of an escape from perceived injustice or fundamental incompatibility with his home State”4
. According to Perluss and Hartman, these three approaches are traceable in the current definition of refuge proposed by Article 1A paragraph 2 of the Geneva Convention: the
1 Perluss, D., Hartman, J. F., Temporary refuge: emergence of a customary norm, Va. J. Int'l L., no. 26, 1985, pp.551.
2 Hathaway, J.C., The evolution of Refugee Status in International Law: 1920-1950, International and Comparative Law Quarterly, 33 no.2, 1984, pp.348-380.
3 Ivi., p.349; Holborn, L., L., The international Refugee Organization: A Specialized Agency of the United
Nations, Oxford University Press, 1956, pp.311.
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subjective fear refers to the individualistic approach, while the objectively determined factors to the social one and the lack of de jure protection by the country of origin to the judicial one5. For this reason, the historical background is useful to better understand the evolution of the regime of refugee protection and particularly the scope of the 1951 Convention.
The first action in favour of refugee protection was carried out by the Council of the League of Nations which established the office of High Commissioner of Refugees in 1921 to deal issues legal status relating to Russian refugees escaped after the 1917 Revolution. Moreover, in July 1922 the League drafted the Arrangement with regard to the Issue of Certificates of Identity to Russian Refugees which provided to Russian Refugees international travel documents6. This provision was extended to Armenian refugees in 1923 through a resolution adopted by the League of Nations Council. In 1926 a clear definition of Russian and Armenian refugees was inserted in the Arrangement relating to the issue of identity certificates to Russian and Armenian Refugees7, which inaugurated the national approach. Indeed, it defined refugees as Russian and Armenian citizens who have been deprived of the protection of their nation of origin and have not acquired any other nationality. The same definition was maintained in the Arrangement relating to the Legal Status of Russian and Armenian Refugees8, which granted to those people a clearly legal and personal status.
The nationality-based approach was extended to other national groups during the Intergovernmental Conference on 30 June 1928, when the League of Nations approved the Arrangement concerning the Extension to Other Categories of refugees of Certain Measures taken in favour of Russian and Armenian Refugees9. Therefore, the regime of protection granted to Russians and Armenians was also applied to Assyrians, Assyro-Chaldeans and assimilated refugees, Syrians or Kurds and Turkish refugees10. In addition, the Convention relating to the
5 Perluss, D., Hartman, J. F., Temporary refuge: emergence of a customary norm, cit., 1985.
6 League of Nations, Arrangement with regard to the Issue of Certificates of Identity to Russian Refugees,
5 July 1922, Treaty Series, Vol. XXX, 1922, No. 855, pp. 238-242.
7 League of Nations, Arrangement relating to the issue of identity certificates to Russian and Armenian
Refugees supplementing and amending the previous Arrangements dated July 5, 1922, and May 31, 1924,
12 May 1926, Treaty Series Vol. LXXXIX, No. 2004, pp. 48-52.
8 League of Nations, Arrangement relating to Legal Status of Russian and Armenian Refugees, 30 June 1928, Treaty Series, Vol. LVVVIV, 1929, No. 2005, pp. 55-61.
9 League of Nations, Arrangement concerning the Extension to Other Categories of refugees of Certain Measures taken in favour of Russian and Armenian Refugees, 30 June 1928, Treaty Series, Vol. LXXXIX, 1929, No. 2006, pp. 65-67.
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International Status of Refugees approved in 1933 extended the same protection to Spanish refugees11. To sum up, protection regimes of 1926, 1928 and 1933 were based on the criterion of ethnic and territorial origin and they required that “the applicant should not enjoy de jure international protection”12.
However, the Convention concerning the Status of Refugees coming from Germany signed on 10 February 1938 lead to a shift of perspective13. Although it maintained the national approach, it extended the protection to Germans who had been residing outside Germany or to stateless individuals if “in law or in fact, they do not enjoy the protection of the Government of the Reich”14
. Moreover, this Convention was accompanied by a Protocol signed in 1939 which extended the protection to refugees from Austria15. In order to assist refugees from Germany and Austria fleeing Nazi persecution, the Intergovernmental Committee on Refugees was created in July 1938. According to its mandate, it was responsible of persons still in their countries of origin needing of protection and assistance16. Moreover, the Committee’s refugee definition was focused on individualistic criteria of political opinion, religious belief and racial origin. The Committee’s mandate was extended in 1943 to Sudetes refugees and in 1946 to “those persons within the Committee’s mandate who are unwilling or unable to return to their country of nationality or of former habitual residence”17
. Beyond the Committee, another organisation included in its work the refugee protection: it was the United Nations Relief and Rehabilitation Administration (UNRRA), which was not originally created to provide assistance to refugees. However, in August 1945 UNRRA assistance was extended to post-war political refugees and a
11 League of Nations, Convention relating to the International Status of Refugees, 28 October 1933, Treaty Series, Vol. CLIX, 1933, No. 3663, pp. 201-217.
12 Hathaway, J.C., The evolution of Refugee Status in International Law: 1920-1950, International and Comparative Law Quarterly, 33.2, 1984, pp. 348-380.
13 League of Nations, Convention concerning the Status of Refugees coming from Germany and Annex, 10 February 1938, Treaty Series, Vol. CXCII, 1938, No. 4461, pp. 61-81.
14 Ivi., pp.1-2.
15 League of Nations, Additional Protocol Concerning the Status of Refugees Coming from Germany, 14 September 1939, Treaty Series, Vol. CXCVIII, 1939, No. 4634, pp. 142-145.
16 Simpson, J., Refugees: A Review of the Situation Since September 1938, vol. 1, Royal institute of international affairs, 1939, pp. 2-3.
17 Intergovernmental Committee on Refugees, Final Act of the Intergovernmental Conference on the
adoption of a travel document for Refugees and Agreement relating to the issue of a travel document to refugees who are the concern of the Intergovernmental Committee on Refugees, 15 October 1946, UNTS
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1946 directive specified they would have benefited from the protection if they demonstrated a concrete evidence of persecution, except for victims of the persecutory Nazi legislation18. A turning point in refugee regime of protection is the creation of the International Refugee Organisation, adopted by the UN General Assembly in December 1946, which offered the most detailed definition of refugee until 192019. According to the IRO, the term refugee applies to:
A person who has left, or who is outside of, his country of nationality or of former habitual residence, and who, whether or not he had retained his nationality, belongs to one of the following categories: (a) victims of the Nazi or fascist regimes or of regimes which took part on their side in the second world war, or of the quisling or similar regimes which assisted them against the United Nations, whether enjoying international status as refugees or not; (b) Spanish Republicans and other victims of the Falangist regime in Spain, whether enjoying international status as refugees or not; (c) persons who were considered refugees before the outbreak of the second world war, for reasons of race, religion, nationality or political opinion. […] [It] also applies to a person […] who is outside of his country of nationality or former habitual residence, and who, as a result of events subsequent to the outbreak of the second world war, is unable or unwilling to avail himself of the protection of the Government of his country of nationality or former nationality. […] [it] also applies to persons who, having resided in Germany or Austria, and being of Jewish origin or foreigners or stateless persons, were victims of Nazi persecution and were detained in, or were obliged to flee from, and were subsequently returned to, one of those countries as a result of enemy action, or of war circumstances, and have not yet been finally resettled therein. 4. The term "refugee" also applies to unaccompanied children who are war orphans or whose parents have disappeared, and who are outside their countries of origin. Such children, 16 years of age or under, shall be given all possible priority assistance, including, normally, assistance in repatriation in the case of those whose nationality can be determined.20
Furthermore, the Organisation protected displaced persons, defined as a person “who has been deported from, or has been obliged to leave his country of nationality or of former habitual residence, such as persons who were compelled to undertake forced labour or who were deported for racial, religious or political reasons”21.
18 United Nations Relief and Rehabilitation Administration, European Region Order 40(I), 3 July 1946. 19 Hathaway, J.C., The evolution of Refugee Status in International Law: 1920-1950, cit., 1984.
20 United Nations, Constitution of the International Refugee Organization, 15 December 1946, United Nations, Treaty Series, vol. 18, pp. 297-298.
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According to its mandate, refugees and displaced persons defined as follows became the concern of the IRO if they could not be repatriated or who “expressed valid objections”22
to returning to the country of origin. Specifically, valid objections were:
(i) persecution, or fear, based on reasonable grounds of persecution because of race, religion, nationality or political opinions, provided these opinions are not in conflict with the principles of the United Nations, as laid down in the Preamble of the Charter of the United Nations; (ii) objections of a political nature judged by the Organization to be "valid", as contemplated in paragraph 8 (a) G of the report of the Third Committee of the General Assembly as adopted by the Assembly on 12 February 1946. (iii) in the case of persons falling within the category mentioned in section A, paragraphs 1 (a) and 1 (c) compelling family reasons arising out of previous persecution, or, compelling reasons of infirmity or illness23.
These definitions remained valid until the signing of the Geneva Convention, which has influences from earlier schemes of protections just described, even though it brought fundamental news in the international refugee regime of protection.
1.1.2 The Geneva Convention on Refugees and the New York protocol
The 1951 Refugee Convention resulted from the work of the Ad Hoc Committee on Statelessness and Related Problems created by the ECOSOC Resolution 248 (IX) in 1949 with the aim to “consider the desirability of preparing a revised and consolidated convention relating to the international status of refugees and stateless persons and, if they consider such a course desirable, draft the text of such a convention”24
. The final aim was to implement articles 14 and 15 of the Universal declaration of Human rights25. Thus, after few months the Secretary-General proposed a preliminary draft convention based on earlier instruments to the Ad Hoc Committee26, which worked on the basis of this proposal by producing the Draft Convention Relating to the Status of Refugees. The draft was discussed in the Conference of Plenipotentiaries convened by the UNGA from 2 to 25 July 1951, leading to the adoption of the Convention Relating to the Status of Refugees on 28 July 1951 which represents an innovation on refugee protection in
22 Ivi., section C. 23 Ivi., section C, p.299.
24 United Nations Economic and Social Council, Resolution 248 (IX), 8 August 1949.
25 United Nations Ad Hoc Committee on Refugees and Stateless Persons, Ad Hoc Committee on Statelessness and Related Problems, First Session: Summary Record of the Second Meeting Held at Lake
Success, New York, 26 January 1950, E/AC.32/SR.2.
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international law. Indeed, it results to a specialist human rights treaty27 since it guarantees previsions ensured by the UDHR, ICCPR to the specific category of refugees by starting from human rights principles contained in the Universal Declaration of Human Rights and extending earlier instruments in order to create a new protection regime. Moreover, the category of refugee itself was modified and extended: on the basis of the article 1A of the Convention a refugee is any person:
(1) Has been considered a refugee under the Arrangements of 12 May 1926 and 30 June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the International Refugee Organization; Decisions of non-eligibility taken by the International Refugee Organization during the period of its activities shall not prevent the status of refugee being accorded to persons who fulfil the conditions of paragraph 2 of this section;
(2) As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. In the case of a person who has more than one nationality, the term “the country of his nationality” shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.
Article 1A paragraph 1 is in line with the earlier category-based approach since refugee is any person who had been considered a refugee under earlier arrangements or under the IRO Constitution,28 which are based on nationality and ethnic origins. Nevertheless, article 1A paragraph 2 is an expression of a different approach focused on the individual refugee applicant’s personal characteristic and convictions and for this reason marked by an examination of the merits of each applicant’s case. This approach is not revolutionary since it has been used since 1938 by the Intergovernmental Committee on Refugees even if in limited circumstances29. Indeed, although it contains not only the individual approach but all the three historical
27 McAdam, J., Complementary protection in international refugee law, Oxford University Press, 2007. 28 United Nations General Assembly, Convention Relating to the Status of Refugees, United Nations Treaty Series, vol. 189, 28 July 1951, Article 1A.
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approaches traced by Hathaway as mentioned before30, article 1A paragraph 2 embodies a universal refugee definition.
The Convention excludes certain categories from the guarantees derived from refugee status according to article 1F which sets out that:
The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations31.
Moreover, the Convention limited the access to refugee status to other categories because of its temporary limitation contained in article 1A paragraph 2. In fact, the definition of refugee could be traced back only to persons who had a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion as a result of events occurring before 1 January 1951. Will have to wait the Colloquium organized in Italy in April 1965 to rehash the extension of refugee’s definition according to the Convention. The Draft Protocol resulting from the Colloquium on the Legal Aspects of Refugee Problems formed the basis of the New York Protocol Relating to the Status of Refugees which aimed to guarantee “that equal status should be enjoyed by all refugees covered by the definition in the [1951] Convention irrespective of the dateline 1 January 1951”. For this reason, article 1 of the Protocol delated the temporal limitation present in article 1A paragraph 2 of the 1951 Convention32. Therefore, the standard definition of refugee according to the Geneva Convention as amended by the 1967 Protocol is:
30 As was mentioned previously, Hathaway (1984) traces the evolution of refugee status arguing that it can be divided in three stages: the first one from 1920 until 1935 where refugees were defined in judicial terms, the second one between 1935 and 1939 where refugees were defined from a social perspective and the last one from 1938 until 1950 which is characterised by individualist standards.
31 United Nations General Assembly, Convention Relating to the Status of Refugees, cit., 1951, article 1F. 32 United Nations General Assembly, Protocol Relating to the Status of Refugees, 31 January 1967, United Nations, Treaty Series, vol. 606, p. 267, Article 1. The Article states that: 1. The States Parties to the present Protocol undertake to apply Articles 2 to 34 inclusive of the [1951] Convention to refugees as hereinafter defined. 2. For the purpose of the present Protocol, the term “refugee” shall...mean any person within the definition of Article 1 of the [1951] Convention as if the words “As a result of events occurring before 1 January 1951 and...” and the words “...as a result of such events’, in Article 1A(2) were omitted”.
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Any person who owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it33.
Although the temporal limitation was abolished in 1967, the scope of this provision continued to be partially limited by a spatial limitation. In fact, it must not be forgotten that the 1951 Convention also gave to Contracting States the possibility of limiting their obligations under the Convention to persons who had become refugees as a result of events occurring in Europe. Particularly, Article 1B of the 1951 Convention states that:
1. For the purposes of this Convention, the words “events occurring before 1 January 1951” in Article 1, Section A, shall be understood to mean either (a) “events occurring in Europe before 1 January 1951”; or (b) “events occurring in Europe and elsewhere before 1 January 1951”; and each Contracting State shall make a declaration at the time of signature, ratification or accession, specifying which of these meanings it applies for the purposes of its obligations under this Convention.
2. Any Contracting State which has adopted alternative (a) may at any time extend its obligations by adopting alternative (b) by means of a notification addressed to the Secretary‑General of the United Nations.
At the time of writing some State parties to the 1951 Convention adhere to alternative (a)34. As the Handbook on procedures and criteria for determining refugee status notices, refugees frequently obtain asylum in some of these countries and they are not normally accorded refugee status under the 1951 Convention35.
Article 1A (2) has been subjected to a broad interpretation, in particular from the United Nation High Commissioner for Refugees (UNHCR) created in 1950 in order to protect and provide humanitarian assistance to refugees and other persons of concerns, such as internal displaced persons. Indeed, the UNHCR Handbook on procedures and criteria for determining refugee
33 United Nations General Assembly, Convention Relating to the Status of Refugees, cit., 1951, Article 1A para.2.
34 United Nations High Commissioner for Refugees, Handbook on procedures and criteria for
determining refugee status and guidelines on international protection under the 1951 convention and the 1967 protocol relating to the status of refugees, Annex IV, February 2019, HCR/1P/4/ENG/REV. 4.
These States are Congo, Madagascar, Monaco and Turkey. 35 Ivi., p.28.
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status36 is a fundamental tool to correctly interpret the Convention and the scope of its provisions. The Handbook deepens different crucial issues such as those referred to the definition of well-founded fear of persecution, reasons of persecution and territorial scope. Since all these issues are opened to different interpretations, soft law produced by UNHCR offer a crucial contribution to understand refugee status in international law.
Firstly, UNHCR gives its interpretation of well-founded fear of persecution. Although the term “persecution” has an ambiguous definition in international law, according to the Convention “it may be inferred that a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution”37
. Moreover, according to UNHCR other serious violations of human rights for the same reasons would also constitute persecution, depending on the circumstances of each case38. In addition, certain measures not in themselves constituting persecution but combined with various elements involved, may produce a well-founded fear of persecution on “cumulative ground”. On depends on specific circumstances, including the particular geographical, historical and ethnological context39. Persecution is generally connected to actions perpetuated by the authorities of a country even though sections of the population may also be considered agents of persecution if they are tolerated by the authorities or if authorities refuse or are unable to offer an effective protection to the applicant40.
Moreover, the definition of well-founded fear involves a subjective and an objective element in the person applying for the refugee status according to the Convention. Indeed, the applicant’s statements have to be considered and evaluated on the bases of credibility. As UNHCR states:
It will be necessary to take into account the personal and family background of the applicant, his membership of a particular racial, religious, national, social or political group, his own interpretation of his situation, and his personal experiences – in other words, everything that may serve to indicate that the predominant motive for his application is fear. Fear must be reasonable. Exaggerated fear, however, may be well‑founded if, in all the circumstances of the case, such a state of mind can be regarded as justified41.
36 Ivi. 37 Ivi., p.21. 38 Ibidem. 39 Ibidem. 40 Ivi., p.22. 41 Ivi., p.19.
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To fulfil the objective element, the applicant’s statement has to be viewed in the context of the background situation in order to comply with the standards of credibility42. Particularly, the subjective element of fear has not been contradicted by the actual situation of the country of origin.
Secondly, UNHCR offers a useful interpretation of the reasons of persecution under the Geneva Convention, which are race, religion, nationality, membership of a particular social group and political opinion according to article 1A paragraph 2. Some of these reasons may create ambiguities as UNHCR argues. Indeed, it affirms it is the case of the term “nationality” which is not to be understood only as “citizenship” but also as a membership of an ethnic or linguistic group. For this reason, it can overlap with the term “race”, generating ambiguities and difficulties in the interpretation. In general, according to UNHCR, persecution on the basis of nationality consists of persecution against national, ethnic and linguistic minorities43.
Furthermore, the membership of a particular social group may be an ambiguous and wide category. UNHCR defines it as a group which “comprises persons of similar background, habits or social status”44. In particular, the social group “is defined: (1) by an innate, unchangeable characteristic, (2) by a past temporary or voluntary status that is unchangeable because of its historical permanence, or (3) by a characteristic or association that is so fundamental to human dignity that group members should not be compelled to forsake it”45
. This category includes for example gender-based persecutions or persecutions based on sexual orientation46.
Finally, the fears “refers not only to persons who have actually been persecuted, but also to those who wish to avoid a situation entailing the risk of persecution”47
. Apart when entire groups have been displaced under circumstances indicating that members of the group could be considered
42 Ibidem. 43 Ivi., p.24. 44 Ivi., p.24.
45 United Nations High Commissioner for Refugees, Guidelines on international protection:
“Membership of a particular social group” within the context of Article 1A (2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, 7 May 2002, HCR/GIP/02/02, p.3.
46 United Nations High Commissioner for Refugees, Guidelines on international protection no.9: Claims
to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A (2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, 23 October 2012,
HCR/GIP/12/01.
For more information about gender-based violence see: UNHCR, Violenza sessuale e di genere nei
confronti di rifugiati, rimpatriati e sfollati interni. Linee guida per la prevenzione e la risposta, May
2003. See on the website: https://www.unhcr.it/wp-content/uploads/2016/01/3sgbv_italiano__1_.pdf. 47 Ivi., p.20.
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individually as refugees, the evaluation of the subjective and objective element must be based on applicant’s own personal situation.
1.1.3 Principle of non-refoulement according to the Geneva Convention
The 1951 Geneva Convention is the most important international legal instrument which guarantee a form of protection for refugees as defined by the Convention itself. It addresses fundamental issues, as the juridical status of refugees and the respective rights and obligations of refugees and contracting States48. Particularly, it protects refugees from illegal expulsions through article 32 and 33 which lay down obligations for State parties. Particularly, article 32 states that:
1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.
2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority.
3. The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary.49
Expulsion restrictions have been adopted in national laws of many States and have been taken into account in judicial decisions50. However, even if refugees can be expelled in accordance with article 32 of 1951 Convention, a State party cannot return an individual to the country in which his or her life or freedom may be threatened. Indeed, article 33 of the Geneva Convention guarantees the principle of non-refoulement:
48 Lauterpacht, E., Bethlehem, D., “The scope and the content of the principle of non-refoulement: Opinion”, in Refugee protection in international law: UNHCR’s global consultations on international
protection, 2003, pp. 87-177.
49 United Nations General Assembly, Convention Relating to the Status of Refugees, cit., 1951, article 32. 50 House of Lords, Bugdaycay v. Secretary of State for the Home Department,1 AC 514 (HL), 19 February 1987; Federal Court of Appeal (Canada), Barrera v. Canada, 99 DLR (4th) 264, 1992; Austrian Supreme Court, Expulsion of an Alien, 20 October 1958, 28 ILR, 1963, p.310; High Court (UK Queen's Bench Division), R v. Immigration Appeal Tribunal, ex p. Musisi, Imm [1984] AR 175, 1 November 1984.
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No Contracting State shall expel or return ('refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion51.
Although the Geneva Convention does not guarantee the right of asylum intended as the right of entry and residence52, article 33 obliges States parties to allow the entry and residence of a refugee who cannot be expelled or returned to a country where there is a risk of persecution53. Nevertheless, States can expel or return him or her to a safe country54. On this regard, it is important to stress the relevance of the indirect refoulement, which consists in the removal to a third country from which the individual may then be removed to the country in which he faces a real risk persecution55. When these circumstances occur and the State party cannot expel or return a refugee, it must accept the refugee on their territories in order not to violate it56.
The legal relationship between article 33 paragraph 1 and article 1A paragraph 1 is evident since the entitlement to the protection of non-refoulement is conditioned to the criterion of well-founded fear valid for article 1. Although the definition in article 33 differs form that in article 1A paragraph 1, the travaux préparatoires of the Convention showed as the term persecution and threat for life or freedom were used interchangeably57. Indeed, the expression has left room of interpretation, so much that some scholars, by taking into account the developments in both UNHCR's mandate and in the international law of human rights, have defined the threat for life and freedom “well-founded fear of persecution, or where there are substantial grounds for believing that he or she would be in danger of torture, inhuman or degrading treatment or punishment if returned to a particular country”58
. Other scholars include in the definition of treat of freedom non-derogable rights set out by the ICCPR or rights which cannot be suspended for
51 United Nations General Assembly, Convention Relating to the Status of Refugees, cit., 1951, article 33 para. 1.
52 Rescigno, F., Il diritto di asilo, Carrocci Editore, Roma, 2011.
53 Di Filippo, M., “L’ammissione di cittadini stranieri”, in Calamia, M, Di Filippo, M., Gestri, M.,
Immigrazione, Diritto e Diritti: profili internazionalistici ed europei, Ch. IV., CEDAM, 2014, pp.
81-122. 54 Ivi.
55 Di Filippo, M., “L’ammissione di cittadini stranieri”, cit., 2014. 56 Ivi.
57 Grahl-Madsen, A., Commentary on the Refugee Convention 1951: Articles 2-11,13-37, UNHCR Division of International Protection, Geneva, 1997, pp.231–232.
58 Gill, G.S., McAdam, J., “Non-refoulement in the 1951 Refugee Convention”, in Goodwin-Gill, G.S., McAdam, J., The Refugee in International Law, Part 2, Ch. 5, Oxford University Press, 2007, pp. 201-277.
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national emergency59. Thus, article 33 has to be interpreted by including in the definition of threat for life and freedom all threats of fundamental human rights accepted at the international level60.
Moreover, referring to the territorial application of non-refoulement as defined in article 33 paragraph 1, it is important to underline that it prohibits refoulement of refugees in any manner whatsoever to the country of persecution, including extradition, expulsion, and deportation. Instead, a debate has occurred referring to border rejection, since traditionally article 33 of the Convention applies to persons who are already entered the country. A teleological interpretation leads to include such circumstance within the scope of article 33 of the Geneva Convention, since a ban of entrance needs a previous evaluation of the risk caused by the rejection in order to avoid a violation of non-refoulement61. In addition, the duty of the State party exists beyond
the national territory of the State, at border posts, in international zones, at transit points, and in all places where a State exercises authority or control over a territory or individuals62. Finally, some scholars argue that, although non-refoulement cannot apply if the person is not outside his or her country, when a State party cooperates with that country in order to avoid arrivals on its territory, it is possible to demonstrate an interpretation in bad faith of the Convention63.
Furthermore, the principle of non-refoulement is not strictly restricted to refugees. Indeed, it applies also to asylum seekers and therefore rejection at the frontier will be incompatible with article 33 paragraph 1 too64. This is especially due to the humanitarian aims of the Convention and the declaratory and non-constitutive nature of the refugee status recognition65. The General Assembly has stressed this concept condemning “all acts that pose a threat to the personal security and well-being of refugees and asylum-seekers, such as refoulement…”66. Therefore, article 33 is extended also to persons who have not yet been formally recognized as refugees according to article 1 paragraph 2 of the Convention as happened for article 31 of the same Convention. Particularly, it denies states to “impose penalties, on account of their illegal entry
59 Hathaway, J.C., The Rights of Refugees in International Law, Cambridge University Press, 2005. 60 Lenzerini, F., Asilo e diritti umani: l’evoluzione del diritto di asilo nel diritto internazionale, Giuffrè Editore, Milano, 2009.
61 Di Filippo, M., L’ammissione di cittadini stranieri”, cit., 2014. 62 Ivi.
63 Salerno, F., “L’obbligo internazionale di non-refoulement dei richiedenti asilo”, in Favilli, C.,
Procedure e garanzie del diritto di asilo, Padova, 2011, pp.3-34.
64 Lauterpacht, E., Bethlehem, D., “The scope and the content of the principle of non-refoulement: Opinion”, cit., 2003, para. 82.
65 Di Filippo, M., “L’ammissione di cittadini stranieri”, cit., 2014.
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or presence, on refugees who […] enter or are present in their territory without authorization…”67
. Since all refugees who enter and are present illegally in a State not have been formally recognizes as refugee by that State, the Convention implicitly extends its mandate to refugees not recognised yet. The same appreciation must apply to article 33 paragraph 1 of the Convention68. Moreover, the UNHCR Executive Committee the principle of non-refoulement acts “irrespective of whether or not individuals have been formally recognized as refugees”69
. To sum up, the protection guaranteed by article 33 paragraph 1 of the 1951 Convention is extended to refugees defined by article 1A paragraph 2 irrespective of whether or not they have been formally recognized as refugees. For this reason, non-refoulement under the article 33 paragraph 1 will apply both to refugees and asylum seekers70.
According to article 33, non-refoulement is not an absolute principle since it can be derogated if the provision is claimed by a refugee “whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country”.71 Indeed, national security and public order have long been recognized as reasons for derogation according to the Convention, but also national immigration laws and State practice72. With regard to non-refoulement according to the 1951 Convention, differences between exceptions article 33 paragraph 2 and exceptions in article 1F shall be considered73. Firstly, article 1F excludes certain persons from the refugee status as defined by the Convention, while article 33 paragraph 2 from the return to the country of origin. Secondly, the provisions differ since article 33 paragraph 1 indicates a higher threshold than article 1F and includes a threat from the person after his access to the host territory and not a commission of some act in the past
67 United Nations General Assembly, Convention Relating to the Status of Refugees, cit., 1951, article 31. 68 Lauterpacht, E., Bethlehem, D., “The scope and the content of the principle of non-refoulement: Opinion”, cit., 2003, para.93.
69 UNHCR Executive Committee, Non-refoulement Conclusion, no. 6 (XXVIII) 1977, 28th session, contained in United Nations General Assembly doc. 12A (A/32/12/Add.112), October 1977.
70 Lauterpacht, E., Bethlehem, D., “The scope and the content of the principle of non-refoulement: Opinion”, cit., 2003, para.99.
71 United Nations General Assembly, Convention Relating to the Status of Refugees, cit., 1951, article 33 para. 2.
72 Lauterpacht, E., Bethlehem, D., “The scope and the content of the principle of non-refoulement: Opinion”, cit., 2003, para.169.
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as74. Moreover, article 33 paragraph 2 does not specify where and when the crime in question must have been committed, while article 1F concerns a crime committed outside the country of refuge prior to admission75.
In addition, as regards the scope of the provision, it should be noted that the term “national security” is not clearly defined in immigration and refugee legislation and it remains ambiguous. Hathaway argues that article 33 paragraph 2 permits refoulement “where a refugee’s presence or actions give rise to an objectively reasonable real possibility of directly or indirectly inflicted substantial harm to the host State’s most basic interests, including the risk of an armed attack on its territory or its citizens, or the destruction of its democratic institutions”76
. On the contrary, Lauterpacht and Bethlehem point out the State must demonstrate reasonable grounds for demonstrating that a refugee is a threat for the country’s security and the threat must be very high77. According to Goodwin-Gill, the two scholars adopted the same approach of the Australian courts, which correctly considers the danger caused by the individual, rather than the classification of the crime by giving attention to the circumstances in which it was been committed78. Furthermore, application of article 33 paragraph 2 must consider the principle of proportionality, by taking into account different factors such as the seriousness of the danger, the likelihood of that danger and its imminence, whether the danger to the security of the country would be eliminated or significantly alleviated by the removal of the individual concerned, the nature and seriousness of the risk to the individual from refoulement and whether other avenues consistent with the prohibition of refoulement are available and could be followed79.
Finally, academic debate discusses whether or not article 33 of the 1951 Convention has to be consider a customary norm and there is not unanimity on such issue. UNHCR argues that States’ practice shows an acceptance of the principle of non-refoulement as part of customary international law and they explain cases of refoulement by trying to offer additional clarifications
74 Lauterpacht, E., Bethlehem, D., “The scope and the content of the principle of non-refoulement: Opinion”, cit., 2003, para.147.
75 Ivi., para.148.
76 Hathaway, J.C., The Rights of Refugees in International Law, cit, 2005, p.346.
77 Lauterpacht, E., Bethlehem, D., “The scope and the content of the principle of non-refoulement: Opinion”, cit., 2003, para.168-169.
78 Goodwin-Gill, G.S., McAdam, J., The refugee in international law, Oxford University Press, 2007, p.346.
79 Lauterpacht, E., Bethlehem, D., “The scope and the content of the principle of non-refoulement: Opinion”, cit., 2003, para. 178.
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or sustaining the person returned is not a refugee80. The consistent number of scholars argue that non-refoulement is a customary norm, such as for example, Goodwin-Gill who argues that “no formal or informal opposition to the principle of non-refoulement is to be found, and where objection has been made on occasion to the protection and assistance activity of UNHCR, it has been founded on a challenge to the status as refugees of the individuals involved”81. This position is also shared by Lauterpacht and Bethlehem, who retain the essential content of the principle of non-refoulement as a customary norm in a refugee context is defined as follows:
1. No person seeking asylum may be rejected, returned, or expelled in any manner whatever where this would compel him or her to remain in or to return to a territory where he or she may face a threat of persecution or to life, physical integrity, or liberty. Save as provided in paragraph 2, this principle allows of no limitation or exception. 2. Overriding reasons of national security or public safety will permit a State to derogate from the principle expressed in paragraph 1 in circumstances in which the threat does not equate to and would not be regarded as being on a par with a danger of torture or cruel, inhuman or degrading treatment or punishment and would not come within the scope of other non-derogable customary principles of human rights. The application of these exceptions is conditional on strict compliance with due process of law and the requirement that all reasonable steps must first be taken to secure the admission of the individual concerned to a safe third country82.
This definition of non-refoulement in international law is a result of interpretations of article 33 paragraph 1 of the Geneva Convention. To sum up, they argue that that principle binds States, their subdivisions, organs and other persons exercising governmental authority. Moreover, the State must be considered responsible when the conduct in question is attributable to it wherever this occurs83. In addition, according to them, refoulement occurs when the return exposes refugees and asylum seekers to a threat of persecution, a real risk of torture or cruel, inhuman or degrading treatment or punishment, or a threat to life, physical integrity, or liberty. Finally, it
80 United Nations High Commissioner for Refugees, The principle of Non-refoulement as a Norm of
Customary International Law: Response to the Question Posed to UNCHR by the Federal Constitutional Court of the Federal Republic of Germany in Cases 2 BvR 1938/99 and 1954/93, 31 January 1994, para.
5. See on the website: https://www.refworld.org/docid/437b6db64.html. 81 Ivi., pp.346-347.
82 Lauterpacht, E., Bethlehem, D., “The scope and the content of the principle of non-refoulement: Opinion”, cit., 2003, para.219.
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may occur also if they will be removed to a territory from which they would be in danger of being returned to a territory where they would be at risk84.
On the contrary, some scholars argue that international practice does not confirm such view. Particularly, he believes that there is not sufficient evidence to retain non-refoulement as part of customary international law85. Particularly, he affirms that “it is simply disingenuous to assert that there is presently a universal duty of non-refoulement that is substantively in line with the provisions of Art. 33 and which is own to all refugees, by all countries”86. On this regard, he claims that as state practice shows, refoulement continue to be practised against refugees in most parts of the world87. Moreover, it is not sufficient to demonstrate that most countries have accepted some non-refoulement obligations to sustain a universal duty for all States, especially considering the existence of several relevant States which are not parties of the Geneva Convention or its Protocol88. Finally, Hathaway argues that the scope of non-refoulement is highly variable, and for this reason “does not afford the basis for even a common opinio juris, much less for general respect of that norm in practice”89
.
Clearly, the debate is more heated for what concern non-refoulement as developed beyond article 33 of the Geneva Convention. Although Hathaway claims the content of non-refoulement under the human rights context, he sustains that human rights treaties provides a fundamental support to the duties of non-refoulement set out by the Geneva Convention90. On the contrary, other scholars, such as Lauterpacht and Bethlehem, argue that the principle of non-refoulement as a customary norm resulted not only from the 1951 Geneva Convention, but also to instruments created in the context of human rights in general91. Indeed, it is also the outcome of a sum of international instruments provided by human rights law, which enshrine the respect of the principle of non-refoulement in different ways from article 33 of the 1951 Convention. For this reason, an analysis of these instruments shall offer a comprehensive overview of the principle and guarantees expected to refugees and asylum seekers according to international law.
84 Ibidem.
85 Hathaway, J.C., The Rights of Refugees in International Law, cit., 2005, p.363. 86 Ivi., p.367.
87 Ivi., p.364. 88 Ivi., p.365. 89 Ibidem. 90 Ivi., p.368.
91 Lauterpacht, E., Bethlehem, D., “The scope and the content of the principle of non-refoulement: Opinion”, cit., 2003.
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1.2 The principle of non-refoulement and the expansionist role of courts
1.2.1 The scope of the principle of non-refoulement in the international law
As a result of provisions contained in human rights instruments, Lauterpacht and Bethlehem offer a more complex definition of non-refoulement as a customary norm, by going beyond the Geneva Convention and by referring to the human rights context. According to them, the content of non-refoulement as a customary norm is the following:
(a) No person shall be rejected, returned, or expelled in any manner whatever where this would compel him or her to remain in or return to a territory where substantial grounds can be shown for believing that he or she would face a real risk of being subjected to torture or cruel, inhuman or degrading treatment or punishment. This principle allows of no limitation or exception.
(b) In circumstances which do not come within the scope of paragraph 1, no person seeking asylum may be rejected, returned, or expelled in any manner whatever where this would compel him or her to remain in or to return to a territory where he or she may face a threat of persecution or a threat to life, physical integrity, or liberty. Save as provided in paragraph 3, this principle allows of no limitation or exception.
(c) Over riding reasons of national security or public safety will permit a State to derogate from the principle expressed in paragraph 2 in circumstances in which the threat of persecution does not equate to and would not be regarded as being on a par with a danger of torture or cruel, inhuman or degrading treatment or punishment and would not come within the scope of other non-derogable customary principles of human rights. The application of these exceptions is conditional on the strict compliance with principles of due process of law and the requirement that all reasonable steps must first be taken to secure the admission of the individual concerned to a safe third country92.
According to this definition, the corollary of the principle of non-refoulement in human rights context in general is identified as the prohibition of torture, cruel, inhuman or degrading treatment or punishment. This principle comes especially from three main international instruments, the 1984 Convention against Torture, the 1966 International Covenant on Civil and Political Rights and the 1950 European Convention on Human Rights, which altogether play an important role in protecting non-Convention refugees from expulsion.
Firstly, article 3 of the Convention against Torture is an explicit guarantee of non-refoulement since it states that “no States parties shall expel. return (“refouler”) or extradite a person to
92 Lauterpacht, E., Bethlehem, D., “The scope and the content of the principle of non-refoulement: Opinion”, cit., 2003, para.253.
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another State where there are substantial grounds for believing that he would be in danger of being subjected to torture”93
. This principle differs from non-refoulement guaranteed by the Geneva Convention since it is non-derogable and it does not permit exceptions. Indeed, the Committee against Torture argues that “the nature of the activities in which the person concerned engaged cannot be a material consideration when making a determination under the article 3 of the Convention”94
. Article 3 refers only to torture as defined in article 1 of the Convention and it cannot apply in case of cruel, inhuman or degrading treatment or punishment. In addition, according to the definition of torture in article 195, it includes only acts carried out or acquiesced in by the State and excludes acts perpetrated by private organizations or individuals. Moreover, in order to determine the existence of “substantial grounds for believing that he would be in danger of being subjected to torture”96, there would be “gross, flagrant or mass violation of human rights” and the individual must prove that he or she would be individually at risk of torture if returned97. Finally, as article 33 of the Geneva Convention, article 3 of the 1984 Convention of Torture forms the basis of a general rule of law98. On the contrary, non-return to cruel, inhuman or degrading treatment or punishment as customary international law is more
93 United Nations General Assembly, Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, 10 December 1984, United Nations, Treaty Series, vol. 1465, p. 85,
article 3.
94 United Nations Committee Against Torture, Tapia Paez v. Sweden, Comm. no.39/1996, UN doc. CAT/C/18/D/39/1996, 29 April 1996, para. 14.5.
95 Torture as defined in article 1 of the Convention against Torture includes those acts “by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining form him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions”.
96 United Nations General Assembly, Convention against Torture and Other Cruel, Inhuman or
Degrading Treatments and Punishments, cit., 1984, article 3.
97 United Nations Committee Against Torture, Alan v. Switzerland, Comm. no. 21/1995, UN doc. CAT/C/16/D21/1995, 8 May 1996, para.11.5; United Nations Committee Against Torture, Chipana v.
Venezuela, Comm. no. 110/1998, UN doc. CAT/C/21/D/110/1998, 10 November 1998, para. 6.3; United
Nations Committee Against Torture, TA v. Sweden, Comm. no. 226/2003, UN doc. CAT/C/34/D/226/2003, 27 May 2005, para.7.2.
98 Lauterpacht, E., Bethlehem, “The scope and the content of the principle of non-refoulement: Opinion”,
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controversial99. However, it is guaranteed by international instruments as article 7 ICCPR and article 3 of 1950 European Convention on Human Rights.
Article 7 ICCPR states that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”100. This provision is non-derogable as the Human Rights Committee argued in the General Comment 20 in 1992101. In the same General Comment, the Committee specified that “States parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement”102. Article 7 ICCPR covers also cruel, inhuman and degrading treatments and punishments differently from article 3 of the Convention against Torture and it does not require the action was carried out directly or indirectly by the State or with its acquiescence. Moreover, the Human Rights Committee has affirmed that the norm does not “consider it necessary to draw up a list of prohibited acts or to establish sharp distinctions between the different kinds of punishment or treatment; the distinctions depend on the nature, purpose and severity of the treatment applied”103
.
Finally, according to the Human Rights Committee, the principle of non-refoulement shall apply in case of a real risk of violation of any rights stated by the 1966 Covenant104, since it argues that non-refoulement includes all those situations “when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise”105. The Committee has also not excluded that return leading to separation from the family could constitute cruel, inhuman or degrading treatment, even if it has not been established yet by any cases106. Moreover, as
99 Goodwin-Gill, G.S., McAdam, J., “Non-refoulement in the 1951 Refugee Convention”, cit., 2007. 100 United Nations General Assembly, International Covenant on Civil and Political Rights, United Nations, Treaty Series, vol. 999, p. 171, article 7.
101 United Nations Human Rights Committee, General Comment no.20: Article 7 (Prohibition of Torture,
or Other Cruel, Inhuman or Degrading Treatment or Punishment), 44th session, 10 March 1992. See on
the website: https://www.refworld.org/docid/453883fb0.html. 102 Ivi., para.9.
103 Ivi., para.4.
104 Goodwin-Gill, G.S., McAdam, J., “Non-refoulement in the 1951 Refugee Convention”, cit., 2007. 105 United Nations Human Rights Committee, CCPR General Comment no.15: The position of Aliens
under the Covenant, 27th session, 11 April 1986, para. 5.
See on the website: https://www.refworld.org/docid/45139acfc.html.
106 United Nations Human Rights Committee, Canepa v. Canada, Comm. no. 558/1993, UN doc. CCPR/C/59/D/558/1993, 3 April 1993, para. 11.2.
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Goodwill-Gill points out, article 7 ICCPR was applied to protect procedural rights and guarantee an effective remedy in accordance to article 2(3) of the Covenant107.
1.2.2 The expansionist role of the European Court of Human Rights
As mentioned before, the European Convention on Human Rights represents a fundamental instrument of protection from refoulement, so much that Lambert considers it the “best option” to appeal against asylum seekers’ expulsion108
. This is particularly because the jurisprudence of the European Court of Human Rights is binding for States parties of the Convention and it has led to a scope’s expansionism of the principle by going beyond article 33 of 1951 Convention. Generally, the Court applies the principle of non-refoulement referring to article 3, which holds that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment”109. The norm imposes positive obligations to States which are obliged to protect persons from state agents and third persons110. In addition, in accordance with its extraterritorial effect, it obliges states to protect individuals from torture, inhuman or degrading treatment or punishment, by refraining from extraditions or expulsions to countries where these conducts are expected111. Even if the Convention does not directly refer to the principle of non-refoulement, the European Court of Human Rights has interpreted the principle to be implied in the article since Soering v. UK case112. On that occasion, the Court states that extradition of an individual to a State where there is a real risk of torture or inhuman or degrading treatment or punishment is prohibited by article 3113. As Greenman argues, the decision was based on five main considerations: according to article 1 ECHR, States are obliged to ensure to everyone within their jurisdiction the ECHR rights and freedom and they are responsible under article 3 for the consequences of extradition suffered outside a state’s jurisdiction; the Convention must be interpreted on the bases of its nature, its object and purpose; article 3 is non-derogable and its codification is a fundamental
107 Goodwin-Gill, G.S., McAdam, J., “Non-refoulement in the 1951 Refugee Convention”, cit., 2007. 108 Lambert, H., Protection against Refoulement from Europe: human rights law comes to the rescue, International and Comparative Law Quarterly, 1999.
109 Council of Europe, European Convention for the Protection of Human Rights and Fundamental
Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5, article 3.
110 Röhl, K., Fleeing violence and poverty: non-refoulement obligations under the European Convention
of Human Rights, UNHCR, New issues in Refugee Research, Working Paper no.111, January 2005.
111 Ivi.
112 European Court of Human Rights, Soering v. the United Kingdom [Plenary] (merits, just satisfaction), Application no. 14038/88, 7 July 1989, para.86-88, ECHR A-161.
113 Greenman, K., A castle built on sand? Article 3 ECHR and the Source of Risk in Non-refoulement
