The new ministerial direction number 90 and the risk to the fundamental concept, non-refoulement

“Without the principle of non-refoulement there would be no effective system of international protection” Prof Guy Goodwin-Gill the University of New South Wales

The principle of non-refoulement under international human rights law
Under international human rights law, the principle of non-refoulement guarantees that no one should be returned to a country where they would face torture, cruel, inhuman or degrading treatment or punishment and
other irreparable harm. This principle applies to all migrants at all times, irrespective of migration status.
What is the principle of non-refoulement? The principle of non-refoulement forms an essential protection
under international human rights, refugee, humanitarian and customary law. It prohibits States from transferring or removing individuals from their jurisdiction or effective control when there are substantial grounds for
believing that the person would be at risk of irreparable harm upon return, including persecution, torture, illtreatment or other serious human rights violations. Under international human rights law the prohibition of
refoulement is explicitly included in the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (CAT) and the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED). In regional instruments the principle is explicitly found in the Inter-American
Convention on the Prevention of Torture, the American Convention on Human Rights, and the Charter of Fundamental Rights of the European Union. International human rights bodies, regional human rights courts, as
well as national courts have guided that this principle is an implicit guarantee flowing from the obligations to
respect, protect and fulfil human rights. Human rights treaty bodies regularly receive individual petitions concerning non-refoulement, including the Committee Against Torture, the Human Rights Committee, the Committee on the Elimination of Discrimination Against Women and the Committee on the Rights of the Child.
What is the scope of the principle of non-refoulement? The prohibition of refoulement under international
human rights law applies to any form of removal or transfer of persons, regardless of their status, where there
are substantial grounds for believing that the returnee would be at risk of irreparable harm upon return on
account of torture, ill-treatment or other serious breaches of human rights obligations. As an inherent element
of the prohibition of torture and other forms of ill-treatment, the principle of non-refoulement is characterised
by its absolute nature without any exception. In this respect, the scope of this principle under relevant human
rights law treaties is broader than that contained in international refugee law. The prohibition applies to all
persons, irrespective of their citizenship, nationality, statelessness, or migration status, and it applies wherever a State exercises jurisdiction or effective control, even when outside of that State’s territory.
The prohibition of refoulement has been interpreted by some courts and international human rights mechanisms to apply to a range of serious human rights violations, including torture, and other cruel, inhuman or
degrading treatment, flagrant denial of the right to a fair triali
, risks of violations to the rights to lifeii
, integrity
and/or freedom of the personiii
, serious forms of sexual and gender-based violenceiv
, death penalty or death
rowv
, female genital mutilationvi
, or prolonged solitary confinementvii
, among others. Some courts and some
international human rights mechanisms have further interpreted severe violations of economic, social and
cultural rights to fall within the scope of the prohibition of non-refoulement because they would represent a
severe violation of the right to life or freedom from torture or other cruel, inhuman or degrading treatment
or punishment. For example, degrading living conditionsviii, lack of medical treatmentix
, or mental illnessx have
been found to prevent return of persons.
Heightened consideration must also be given to children in the context of non-refoulement, whereby actions
of the State must be taken in accordance with the best interests of the child. In particular, a child should not
be returned if such return would result in the violation of their fundamental human rights, including if there is
a risk of insufficient provision of food or health services.

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