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Untangling Refoulement and Non-Refoulement in the Judicial Response to the ‘Rwanda Policy’

Leonie Finke, Public Law / / Leave a Comment

On November 15, 2023, the Supreme Court of the United Kingdom (UKSC) held that the ‘Rwanda policy’ – the Secretary of State’s policy of redirecting people claiming asylum in the United Kingdom to Rwanda – was unlawful.1 An important factor in this decision was the finding that there was a real and substantial risk of refoulement,2 which both domestic and international law protect against. A highly complex case, the judicial response to the policy required a careful balancing of different authorities, obligations, evidence, and past case law at domestic, bilateral, and international levels. The decision has created uncertainty pertaining to the scope of non-refoulement as a principle in practice. Importantly, a definition of refoulement which pertains only to a return to an unsafe country of origin is erroneously used as a guide, instead of the principle of non-refoulement in international law, which extends to other removals. As such, the UKSC derivates from past international developments to the Refugee Convention to promote a more narrow standard, with both domestic and international implications.

Case Summary

Briefly, R v SSHD3 concerned a series of cases brought by individuals whose asylum claims had been designated as inadmissible by the Secretary of State for the Home Department (SSHD) in accordance with paragraphs 345A to 345D of the Immigration Rules.4 The UK had reached an agreement with the Government of Rwanda under which Rwanda would receive a number of such individuals to consider their asylum claims instead.5 In the courts’ assessments, a wide array of issues relating to the lawfulness of almost every stage of the policy’s proposed process were considered: from the initial evaluation by the SSHD upon an asylum seeker’s arrival in the UK through to the ultimate potential removal from Rwanda to another country.6

Overall, the Administrative Court of the King’s Bench Division of the High Court (‘the Administrative Court’) ruled that the SSHD generally had the authority to make the designation regarding whether individuals’ claims to asylum would be considered in the UK or in Rwanda. This designation included an assessment of the safety of a third country willing to accept the asylum seekers.7

Next, the Court of Appeal (CA) reversed the Administrative Court’s decision. They claimed, inter alia, that the Administrative Court had the authority to independently assess the relevant facts – in this case, evidence for or against judging Rwanda to be a safe third country – and that they should have included the UN High Commissioner for Refugees (UNHCR)’s findings as relevant to that question.8 The Court of Appeal found that, when considering, inter alia, the UNHCR’s findings as well as past failures to fulfil commitments to similar bilateral agreements, due to the risk of refoulement, Rwanda was not a safe third country.9

Ultimately, regarding the designation of Rwanda as a safe third country, the Supreme Court addressed three issues: (1) whether the Administrative Court had applied the wrong test; (2) whether the Court of Appeal had the right to interfere with the approach taken by the Administrative Court; (3) whether the Court of Appeal was entitled to determine for itself if Rwanda could be designated as a safe third country and whether their conclusion was correct.10 Though it did not reach a full conclusion on the first issue,11 the Supreme Court found that the Court of Appeal had the right to interfere and to conduct its own analysis on that query.12 It also affirmed the Court of Appeal’s finding that there was evidence of a substantial risk of refoulement, by which Rwanda could not be considered a safe third country under either applicable domestic or international law.13 There were two other issues related to the European Convention of Human Rights (ECHR)14 over which permission to appeal had been granted, but they were ultimately not addressed in length.15 Finally, in response to a cross-appeal brought by ASM (one of the claimants), the Supreme Court found that the Asylum Procedures Directive no longer functioned as retained EU law following the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020.16

Scoping Out Refoulement vs Non-Refoulement

The discourse among the Administrative Court, Court of Appeal, and Supreme Court involved the analysis of thousands of pages of evidence and was done relatively expeditiously.17 Their conclusion is therefore quite a remarkable feat. However, in digesting this particularly complicated situation, the decision can be distilled to the following: where there is a substantial risk of refoulement, understood by the courts as the return to a country of origin where there is risk of significant harm, the Rwanda policy is impermissible. Though the UKSC bases its rationale on the principle of non-refoulement as understood in UK domestic law, by focusing primarily on the harm of refoulement as defined above, it indicates a narrower application of the principle than has been established by customary international law.

First, there shall be an evaluation of non-refoulement and refoulement as understood by customary international law and the international law made domestic to the UK through various acts. Next, the definition and application of concepts in this case, whereby the UKSC applies a narrower definition than established in international law, shall be evaluated. Finally, the implications of this deviation shall be discussed.

(1) Non-Refoulement and Refoulement Defined in International Law

Art 33(1) of the 1951 Convention relating to the Status of Refugees – ‘the Refugee Convention’ – states that ‘no contracting state shall expel or return (“refouler”)18 a refugee’ to a country where their life or freedom is threatened due to their identity.19 Since then, through consistent state practice that in which a legally binding obligation is recognised (opinio juris), this principle of non-refoulement (“the principle”) has achieved the status of not only customary international law,20 but even jus cogens.21 In other words, not only are all states, even those which are not parties to the Refugee Convention or its 1967 Protocol,22 obligated to uphold the principle, but they must also do so without derogation.23 Importantly, as recognised within international law, the obligations imposed under the principle arises in relation to, at least, the entirety of Art 33(1), and not just the verb ‘refouler’.24 According to the UNHCR – which carries a special authority on this area of international cooperation and law25 – in a 2007 advisory opinion on the concept of non-refoulement, the wording of Art 33(1) was interpreted to mean that non-refoulement:

[Applies] not only in respect of return to the country of origin or, in the case of a stateless person, the country of former habitual residence, but also any other place where a person has reason to fear threats to his or her life or freedom related to one or more of the grounds set out in the 1951 Convention, or from where he or she risks being sent to such a risk.26

Importantly, as established by the 1969 Vienna Convention on the Law of Treaties, and consistently reaffirmed by international case law and other instruments, the surrounding documentation of the original convention as well as subsequent conventions, practices, and interpretations are relevant to the present interpretation of a convention or principle.27 Hence, the principle has also slowly broadened over time through international instruments – such as the International Covenant on Civil and Political Rights28 and Art 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment29 – caselaw, and consistent and widespread practice by states.30

(2) Non-Refoulement and Refoulement Defined in this Case

The legal frame established by the UKSC consists of international agreements, to which the UK is a party,31 domestic legislation that references and/or gives domestic effect to those international agreements32 – primarily the Refugee Convention and ECHR – and customary international law.33 Importantly, the UKSC explicitly states that the rationale behind the decision relies only on the former two sources of law.34 This is interesting, considering that States have generally treated the principle of non-refoulement as ‘binding’ and its role as a concept affirmed in domestic law.35

In its initial summary of the legal framework, the UKSC refers to the principle of non-refoulement as protecting against the ‘return to a country where … life or freedom would be threatened’.36 It then continues the rationale centred on ‘refoulement’, not non-refoulement.37 Regarding the risk of refoulement as reason to designate Rwanda an unsafe third country and, therefore, the ‘Rwanda policy’ as unlawful in its current form, the justices consistently and explicitly define refoulement as pertaining only to the return of an individual to their country of origin.38 Lord Justice Underhill is especially clear in the CA judgment:

Where an asylum-seeker comes to Rwanda from a country (“the third country”) other than their country of origin, their enforced return to the third country does not in itself constitute refoulement. It will, however, do so if the third country then expels them in such a way as they are compelled to return to their country of origin, where they fear persecution – i.e. indirect refoulement.39

This is interesting in two ways: Firstly, as an aside to the main argument, it has long been established via the discussions on the choice of language for the Refugee Convention and subsequent international law that non-refoulement is intended to protect against more than just persecution, such as a general context of violence.40 The above definition, as well as the courts’ general approach in this case, indicate a much more limited set of harms.

Secondly, until relatively recently, much of the legal framework used throughout did not seem to imply such a limited definition regarding the geographical parameters of refoulement. The laws that give domestic effect to the Refugee Convention41 do not directly address the point, defining the violative harms with reference to the Convention and mirroring the language used therein and/or in the 1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.42 Regarding the UK courts’ past interpretation of domestic legislation, R v SSHD and Ex p Bugdaycay expanded the scope of violative harms to include indirect refoulement.43

A narrowing of interpretation is also not immediately apparent in the integration of the ECHR into domestic law through the Human Rights Act 1998 and the Nationality, Immigration and Asylum Act 2002:44 refoulement is considered to fulfil the ill-treatment45 that Art 3 of the ECHR protects against, directly or indirectly.46 The UKSC interprets the initial extension by Soering v UK47 – in which an evaluation of the risk of ill-treatment was determined to include risks following removal to another country (NB, not return) – to mean that the risk of refoulement is one which can be transferred upon increasingly distant countries between the first ‘third country’ and the country of origin.48 However, following Soering, the cases of MSS v Belgium and Greece49 and Ilias v Hungary50 both centred on a question of refoulement to country of origin. Given the general practice of doing ‘no less, but certainly no more’ than the European Court of Human Rights51, these two cases may have informed the definition of refoulement used by the CA and UKSC. Beyond that, it is unclear where the CA – and subsequently the UKSC, sourced such a narrow definition of non-refoulement, especially given the developments to the Refugee Convention through state practice and case law in contrast to the ambiguous direction taken by the European Court for Human Rights.

The narrow definition of refoulement subsequently affects how the principle of non-refoulement is applied by the courts to this case.

Applying Refoulement

At a first glance, the rationale of the judgments in R v SSHD seems to affirm the importance of non-refoulement in both domestic and international law. However, upon further investigation it becomes clear that they impose an overly narrow interpretation of the legal framework by using refoulement, defined narrowly, as the sole harm relevant to that question.

(1) Application in Reference to the Refugee Convention

First, when discussing its interpretation of Art 33 (1) of the Refugee Convention, the CA and UKSC alludes only to ‘return to the country’ of original persecution or threatened persecution, failing to clarify that Art 33(1) covers other harms.52 However, domestic law directly referencing and setting limits ‘in accordance with’53 the Refugee Convention should have been interpreted to include not just refoulement, as defined by the courts, but at least Art 33(1) in its entirety. It is interesting that even though it has been established historically that consensus among foreign jurisprudence is key to interpreting international conventions that do not have a supranational court,54 foreign jurisprudence appears to be given less importance in this case when discussing the Refugee Convention.

To that point, the UNHCR’s claim specific to this case, that no asylum seekers should be sent to Rwanda, was based on the policy’s violation of the Refugee Convention.55 Despite the UNHCR claims pertaining to more than just issues of refoulement to country of origin, the UKSC narrows their use of the UNHCR to that issue alone. It is interesting that despite the recognition of the UNCHR’s special authority on ‘interpretation and application of the Refugee Convention’,56 the organisation’s explicit extension of non-refoulement beyond a return to country of origin was not given that same ‘considerable weight’57.

Thus, the UKSC should have recognised harms extending beyond those which would arise from returning the asylum seeker to their country of origin. To distinguish refoulement as separate from the set of harms which Art 33(1) protects indicates an artificial hierarchy of protections.

(2) Application in Reference to the ECHR

Second, the court narrows the interpretation of Art 3 of the ECHR to similarly create an artificial separation of refoulement from the other harms protected under the principle of non-refoulement. The UKSC understood refoulement to exist as one possible condition under the ill-treatment, indicative of a principle excluding other harms protected by Art 3.58 However, other cases – even those cases specifically focusing on the risk of return to the country of origin59 – suggest that the principle be placed on par with Art 3 rights rather than as a subset.60 Under this view, contrary to the Courts’ position, Soering’s extension of protections beyond the first country could itself be the application of non-refoulement, as defined broadly.61

Admittedly, it seems to be a consistent trend that cases where the sole or primary claim was about a threatened or potential return to a country of origin tended to define harm the most narrowly.62 However, where the claim is only related to the risk of ill-treatment in the country of origin, an evaluation of risks in the country of origin and of the risk of the individual being returned thereto, directly or indirectly, can be considered a complete evaluation. Where the claim also involves ill-treatment not related to the country of origin, as offered here in multiple skeletal arguments,63 to apply that same limited evaluation is a essentially Blackburn’s ‘quantifier shift fallacy’ – — that is, the action of erroneously generalising from a specific case to a principle that includes alternative circumstances.64 Furthermore, rather than to maintain a consistent limit, which the UKSC seems to have interpreted to exist, those cases still tended to incrementally expand the harms protected by the concept,65 with ‘the protection of human rights’ as a core function.66

The cases and secondary sources of law discussing the extension of the principle of non-refoulement within ECHR Art 3 obligations beyond refoulement, as defined, are left out of the legal framework, despite them being relevant to the issues discussed. Including them, even if only to disagree with them or distinguish this case as requiring a dissimilar approach, would have added clarity to the degree to which this decision represents engagement with both, or only one, of the concepts.

Furthermore, implicitly, the UKSC’s approach is narrower than even the CA’s. Though the CA defined refoulement conservatively, it did, generally, address risk of refoulement with risk of other ECHR Art 3 breaches within the same issues, a choice which at least implicitly supports a somewhat broader principle.67 The review of evidence by the UKSC did not include a discussion of this engagement with Art 3 rights,68 and, ultimately, the UKSC did not use it to come to a conclusion.69 In outlining refoulement as a distinctly separate issue, with a different constellation of underlying sources and obligations, the UKSC’s understanding of the principle of non-refoulement may be of an even more limited scope than that of the CA. Given the thorough detail with which other points of scope are communicated in the rationale,70 the absence of any clarification to the contrary supports that interpretation.

(3) Application to the Evidence

Third, the discussion of the evidence further muddles matters. Within the analysis, the evidence used to establish a real risk of refoulement includes past examples from the UNHCR and the Israel-Rwanda agreement, both of which include cases of refoulement and cases of removal to countries that were ultimately unsafe.71 Concerning the Israel-Rwanda agreement, hundreds of cases of removal to other countries – primarily Uganda – were cited, while far fewer cases of threatened refoulement (per the Court’s definition) were reported.72 In regards to the review of the other evidence presented by the UNHCR, the difference among the various opinions on which reported figures from the evidence were included further obfuscates what specific cases were considered more or less relevant.73 Considering the point made that identifying systemic issues in a policy requires consistent risk going beyond individual cases,74 the relatively small number of cases that were explicitly considered refoulement in comparison to removal violative of Art 33(1) of the Refugee Convention or Art 3 of the ECHR would suggest that the latter was significant in its contribution to the courts’ evaluation of risk. Importantly, however, the application of such cases could also be understood as being the closest available evidence to predict the risk of interest.75 In light of their narrow interpretation and application of refoulement, the CA or UKSC should have clarified which of these two functions the evidence served.

Implications

Why is it important to know whether a decision was made on the basis of refoulement, as defined by the courts, or non-refoulement, as a broader principle? One reason is that it affects the evaluation of risk: for example, consider a refugee from country of origin A, who travelled to country C through country B and is now being evaluated for removal to country D. If the principle extends to removal to any country that is unsafe, any evaluation of risk would equate to the risk of the person being moved from country D to any country considered to be unsafe. If, on the other hand, the principle is limited to a ‘return’ to a previous country, only the risk of removal to countries A or B, directly or indirectly, from country D need to be considered. Or, under an even more narrow interpretation, if the principle only considers ‘return’ to the country of origin to be relevant, an even higher threshold of risk is established. A narrower interpretation does not conclusively mean that the same or similar evaluations are not made – they may simply fall under a different issue or claim. However, by the non-derogable – jus cogens – nature of the principle, harms within its scope tend to take priority or require greater scrutiny. Given the severity of the harms indicated to exist under the broader international principle, it would not be unreasonable to tend towards a more cautious, protective stance – i.e. this broader definition – when making a decision that has enormous impact on the livelihoods of the individuals in question. Indeed, that is generally the approach taken within international law.76

Both domestically and internationally, this decision could have implications for future application of law related to the principle of non-refoulement.

First, domestically, a decision by the Supreme Court carries weight,77 especially in the relatively nascent realm of human rights law in the domestic sphere.78 Within English law, through case law, non-refoulement appears to be emerging as a concept at least partially distinct from Art 33 of the Refugee Convention.79 Thus, the manner by which the UKSC first grounds its argument in the principle as defined by the Convention (and its related development) only to then focus solely on refoulement invites a future where non-refoulement is understood to mean only ‘not refoulement’.

To that end, is not the inherent discordance of refoulement and non-refoulement not being equal opposites also something to be cautious of? Indeed, even beyond the difference between the principle and the verb, there is also arguably a lack of consensus on whether the verb ‘refouler’ in Art 33(1) of the Refugee Convention means ‘return’ or something broader.80 The UKSC’s simplification to a determination on refoulement as ‘return’ – and without acknowledgement of the other actions covered by ‘expel’ in Art 33(1) and in the language of subsequent instruments and cases – reflects the complexity of the claims brought in this case, many of which were intertwined with one another and made reaching comprehensive conclusions difficult. Furthermore, as much as non-refoulement, as a principle, has now grown beyond ‘not-refoulement’, does that make other claims – such as Art 4, 9, or 13 claims in the ECHR – redundant in such a way as to complicate and make inconsistent the analysis of multiple claims? This may have partially informed the courts’ choice to separate refoulement from the other harms indicated under the principle of non-refoulement.

With so many different sources of international law lending their voice to the chorus, it is plausible to expect the UKSC to be inclined to create some clarity in the domestic realm. But that may be the primary crux of the issue: even if the original claim focused mainly on the ECHR, in making refoulement the primary focus, the UKSC drew in these other voices. The language of the relevant domestic law is overwhelmingly bound to the Refugee Convention and, therefore, to the principle of non-refoulement, not just refoulement. To divorce one from the other means making unequal the various harms contained within the principle. It also means fundamentally opposing the humanitarian intent of the Refugee Convention and the subsequent law expanding the principle.81

Second, the nature of customary international law is such that state practice is an important determining factor, not only for a principle being considered customary international law, but also for its evolution over time.82 Even if the principle were not customary international law, past state practice is relevant for future interpretation of treaties.83 Thus, both in terms of customary international law – which the court underemphasises – and obligations to treaties the UK is party to – which the court does explicitly recognise as an important factor –,84 the decision could itself be considered an artefact of non-refoulement, even if only as a breach or derivation thereof.85 The outcome matters because it affects not just domestic law, but also the shape of the principle as international law. Though it did acknowledge its importance to the general legal framework and general practices of the UK,86 the UKSC made it clear that this case was not decided on the basis of customary international law or further developments to the Refugee Convention.87 Though perhaps a response to the broader question of how domestically sovereign human rights issues can remain within the current global landscape —88 regardless, for the reasons given above, this decision does not exist independent of international law.

Conclusion

The dissonance between the UKSC’s definition of refoulement and the principle of non-refoulement, and the effect of the limited nature of the former imposing limitations on the latter via the rationale used throughout, threatens the broad application of the cited legal framework as established by customary international law and previous case law in the European Court of Human Rights and domestic sphere. Given that it is likely for similar cases to appear in the coming years and how central this point was in the decision, the UKSC should have been far clearer in how it arrived at its definition and why it should differ from the developments to the Refugee Convention through broad state practice and case law. Its limitation of prohibition of refoulement to preclude only return to country of origin suggests a violation of longstanding practices and current standards of interpretation of international law.

To quote Lord Hope in JS (Sri Lanka):

There is always a risk, as one court after another seeks to formulate the principles that are to be applied in the interpretation of an international instrument, of making things worse, not better. A misplaced word here or there can make all the difference between an interpretation that will be respected internationally because it accords with the true purpose of the instrument and one that will not.89

The importance of this phenomenon is largely in regard to the asylum seeker who faces a risk of ill-treatment under the principle of non-refoulement but who does not face a risk of refoulement to their country of origin. Will they be protected? The conflation of the two concepts in this case is not definitive, but it lays the groundwork for a more limited response to that question.

  1. R (on the application of AAA and ors) v The Secretary of State for the Home Department (UNHCR Intervening) [2023] UKSC 42, [2023] 1 WLR 4433 [2], [149]. ↩︎
  2. This concept will be explained more below. As the variation in its definition is one of the subjects of this paper, the UKSC’s definition can momentarily be used: the return of a person to their country of origin where they face the risk or threat of persecution or some similar danger. ↩︎
  3. R v SSHD [2022] EWHC 3230 (Admin), [2022] All ER (D) 59; R v SSHD [2023] EWCA Civ 745, [2023] 1 WLR 3103; and R (on the application of AAA and ors) (n 1). ↩︎
  4. Immigration Rules (HC 395, as amended, 2022). See also Immigration Act 1971, s 3; and R (on the application of AAA and ors) (n 1) [3]. ↩︎
  5. R v SSHD EWCA Civ (n 3) [16-28]; and R (on the application of AAA and ors) (n 1) [1]. ↩︎
  6. R v SSHD EWCA Civ (n 3) [53]-[72]. ↩︎
  7. Please note that this is a very broad summary of the Administrative Court’s judgment, kept brief for the sake of pace in this piece. See R v SSHD EWHC (n 3) in full; R v SSHD EWCA Civ (n 3) [1-2], [35]-[52]. ↩︎
  8. R v SSHD EWCA Civ (n 3) [8], [13], [87]-[88]; R v SSHD UKSC (n 1) [34]-[35] ↩︎
  9. R v SSHD EWCA Civ (n 3) [13], [89]-[105], [109]-[110], [144]-[286]; R (on the application of AAA and ors) (n 1) [15], [36]. ↩︎
  10. R (on the application of AAA and ors) (n 1) [37]. ↩︎
  11. ibid [39]-[41]. ↩︎
  12. ibid [42]-[72]. ↩︎
  13. ibid [73]-[105]. ↩︎
  14. Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR). ↩︎
  15. R (on the application of AAA and ors) (n 1) [17], [106]. ↩︎
  16. ibid [107]-[148]. ↩︎
  17. R v SSHD EWCA Civ (n 3) [1], [35], [484]; and R (on the application of AAA and ors) (n 1) [43]. ↩︎
  18. NB for this discussion, the words ‘expel’ or ‘removal’, and ‘return’ are not interchangeable. ↩︎
  19. Convention relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (Refugee Convention), art 33(1). See also R v SSHD UKSC (n 1) [5], [20]; and Protocol Relating to the Status of Refugees (adopted 31 January 1967, entered into force 4 October 1967) 606 UNTS 267 (Protocol). ↩︎
  20. ‘Declaration of States parties to the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees’ Ministerial Meeting of States Parties (Geneva 12 December-13 December 2001) UN Doc HCR/MMSP/2001/09 (2001 Declaration), as cited in UNHCR ‘Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol’ (26 January 2007) (UNHCR ‘Advisory Opinion’): ‘the principle of non-refoulement, whose applicability is embedded in customary international law.’ See also UNHCR, ‘The Principle of Non-Refoulement as a Norm of Customary International Law, Response to the Questions posed to UNHCR by the Federal Constitutional Court of the Federal Republic of Germany in cases 2 BvR 1938/93, 2 BvR 1953/93, 2 BvR 1954/93’ REF (31 January 1994), paras 1, 3, 5-8 (UNHCR ‘Amicus Curiea’); Jean Allain, ‘The jus cogens nature of non-refoulement’ (2001) 13 Int J Refugee Law 533; UNHCR, ‘Introductory Note to the Convention and Protocol Relating to the Status of Refugees’ (December 2010) (UNHCR ‘Introductory Note’) in Refugee Convention (n 19); and R (on the application of AAA and ors) (n 1) [25]. ↩︎
  21. Sir Elihu Lauterpracht and Daniel Bethlehem, ‘The scope and content of the principle of non-refoulement: Opinion’ in Erika Feller, Volker Türk, and Frances Nicholson (eds), Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (Cambridge University Press, 2003) paras 195, 197-216. See also Allain (n 20). ↩︎
  22. Refugee Convention (n 19); and Protocol (n 19). ↩︎
  23. Allain (n 20); and UNHCR ‘Introductory Note’ (n 20) ↩︎
  24. ibid. ↩︎
  25. Lauterpracht and Bethlehem (n 21) para 20. ↩︎
  26. UNHCR ‘Advisory Opinion’ (n 20) para 7. ↩︎
  27. Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 Art 31-32 (Vienna Convention on the Law of Treaties). See also Lauterpracht and Bethlehem (n 21) paras. 40-47. ↩︎
  28. International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 2, 6, and 7. See also United Nations Human Rights Committee ‘General comment no. 31 [80], The nature of the general legal obligation imposed on States Parties to the Covenant’ (26 May 2004) CCPR/C/21/Rev.1/Add. 13, para 12. ↩︎
  29. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85 (UNCAT), Art 3(1): ‘No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture’. See also Lauterpracht and Bethlehem (n 21) paras 230-238. ↩︎
  30. Lauterpracht and Bethlehem (n 21) paras 79, 85-86, 112-121. See also Declaration on Territorial Asylum (Dec 1967) A/RES/2312 (XXII); and Organization of Africa Unity Convention Governing the Specific Aspects of Refugee Problems in Africa (adopted 10 September 1969, entered into force 20 June 1974) 1001 UNTS 45. ↩︎
  31. R (on the application of AAA and ors) (n 1) [5], [19]-[26]. See also ECHR (n 14) Art 3; Refugee Convention (n 19) Art 33; ICCPR (n 28) Art 2, 6, and 7; and UNCAT (n 29) Art 3(1). ↩︎
  32. R (on the application of AAA and ors) (n 1) [5], [27]-[33]. See also Asylum and Immigration Appeals Act 1993, s 2; Human Rights Act 1998, s 6; Nationality, Immigration and Asylum Act 2002, ss 82(1), 84(1), 94(8); and Asylum and Immigration (Treatment of Claimants etc) Act 2004, sch 3 para 17. ↩︎
  33. R (on the application of AAA and ors) (n 1) [19], [25]. See also previous sources on non-refoulement as customary international law (n 20). ↩︎
  34. R v SSHD UKSC (n 1) [25]. ↩︎
  35. UNHCR ‘Amicus Curiea’ (n 20), para 6, 8; UNHCR ‘Advisory Opinion’ (n 20) para 15. See also Lauterpracht and Bethlehem (n 21) paras 194, 218. ↩︎
  36. R (on the application of AAA and ors) (n 1) [5] (emphasis added). ↩︎
  37. For example: R (on the application of AAA and ors) (n 1) [17]: ‘We shall accordingly focus primarily on the grounds concerning (1) refoulement and (2) retained EU law.’ ↩︎
  38. For example: R v SSHD EWCA Civ (n 3) [2], [146]; and R v SSHD UKSC [42], [86], [94], [96], [105]. ↩︎
  39. R v SSHD EWCA Civ (n 3) para 146 footnote 3. ↩︎
  40. Lauterpracht and Bethlehem (n 21) paras 128-135. See also UNCAT (n 29) Art 3(1); UNHCR. ‘Note on Non-Refoulement (Submitted by the High Commissioner)’ (23 August 1977) EC/SCP/2 para 4; and Lauterpracht and Bethlehem (n 21) paras 89-99, 122-143. ↩︎
  41. Primarily Asylum and Immigration Appeals Act 1993 (n 32) s 2; Nationality, Immigration and Asylum Act 2002 (n 32), s 82(1), 84(1), 94(8); and Asylum and Immigration Act 2004 (n 32), sch 3 para 17. ↩︎
  42. UNCAT (n 29) Art 3(1). ↩︎
  43. Bugdaycay v Home Secretary [1987] AC 514, as cited in R (on the application of AAA and ors) (n 1) [20]. ↩︎
  44. Human Rights Act 1998 (n 32), s 6; and Nationality, Immigration and Asylum Act 2002 (n 32), s 94(1), 94(7). ↩︎
  45. ECHR (n 14) Art 3: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’. ↩︎
  46. R (on the application of AAA and ors) (n 1) [6], [24], [28], [42], [106]. See also R v SSHD EWCA Civ (n 3) [29]. ↩︎
  47. Soering v United Kingdom [1989] 11 EHRR 439. ↩︎
  48. R (on the application of AAA and ors) (n 1) [23]-[24], [105]. ↩︎
  49. MSS v Belgium and Greece [2011] 53 ECHR 108. See also R (on the application of AAA and ors) (n 1) [24]. ↩︎
  50. Ilias v Hungary [2019] 47 EHRR 6. See also R (on the application of AAA and ors) (n 1) [24], [44]. ↩︎
  51. Lord Brown in R (Al-Skeini and Others) v Secretary of State for Defence [2007] UKHL 26; [2008] 1 AC 152 [106], as cited in Hélène Tyrrell, Human Rights in the UK and the Influence of Foreign Jurisprudence (1st edn, Bloomsbury Publishing Plc 2018) 141. See also Tyrrell 47-48. ↩︎
  52. R (on the application of AAA and ors) (n 1) [20]. ↩︎
  53. Nationality, Immigration and Asylum Act 2002 (n 32), s 94(8)(b); and Asylum and Immigration Act 2004 (n 32), sch 3 paras 17(c), 19. ↩︎
  54. Tyrrell (n 51) 67-71, 148-150, 154-162. ↩︎
  55. R v SSHD EWCA Civ (n 3) [6]-[7]. ↩︎
  56. R (on the application of AAA and ors) (n 1) [65]. ↩︎
  57. Al-Sirri v Secretary of State for the Home Department [2012] UKSC 54; [2013] 1 AC 745, para 36, as cited in R (on the application of AAA and ors) (n 1) [65]: in regard to understanding the Refugee Convention, the UNHCR ‘should be accorded considerable weight’. ↩︎
  58. See above discussion of the Courts’ interpretation of Soering (n 47) ↩︎
  59. See, for example, Ahmed v Austria [1996] 24 EHRR 278. ↩︎
  60. ibid paras 39-41; and TI v United Kingdom [2000] INLR 211, 136 BILS 3D-190. ↩︎
  61. Soering v UK (n 47). This would also mean that MSS v Belgium and Greece (n 49) carries a similar recognition for the principle of non-refoulement. See also Lauterpracht and Bethlehem (n 21) paras 204-205. ↩︎
  62. TI v UK (n 60); MSS v Belgium and Greece (n 49); and Ilias v Hungary (n 50). ↩︎
  63. R v SSHD EWCA Civ (n 3) [2], [5], [11]. ↩︎
  64. ‘quantifier shift fallacy’, The Oxford Dictionary of Philosophy (2nd edn, Oxford University Press 2008). ↩︎
  65. For example: TI v UK (n 60) expanding the principle to include more indirect removal to general situations of danger and ill-treatment. ↩︎
  66. Stafford v UK (2002) 35 EHRR 32 para 68, as cited in Tyrrell (n 51) 143-144. ↩︎
  67. R v SSHD EWCA Civ (n 3) [13(iv)], [13(vi)], [92], [106], [287]-[292]. ↩︎
  68. R (on the application of AAA and ors) (n 1) [106]. ↩︎
  69. R (on the application of AAA and ors) (n 1) [149]. ↩︎
  70. See, for example, the discussion on scope of the language in the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 in R (on the application of AAA and ors) (n 1) [107-148]. ↩︎
  71. R (on the application of AAA and ors) (n 1) [60-65], [74], [85]-[90]. ↩︎
  72. R (on the application of AAA and ors) (n 1) [95-97]. See also R v SSHD EWCA Civ (n 3) [47(v)], [101]-[102], [152-153]. ↩︎
  73. R v SSHD EWCA Civ (n 3) [96-97], [151-152], [500], [502]; cf R (on the application of AAA and ors) (n 1) [85-87], [89], [96]. This is also a potential limitation to the argument presented in this paper: the additional sources and arguments not made available in reports could very much impact the focus of the UKSC. Still, regardless of which arguments were given the most airtime, the differences in definitions and applications presented herein are subtle but not intangible, and it is unlikely that the consistency in difference was unintentional. ↩︎
  74. R v SSHD EWCA Civ (n 3) [502] ↩︎
  75. R (on the application of AAA and ors) (n 1) [101-105]. ↩︎
  76. Lauterpracht and Bethlehem (n 21) paras 115-121. ↩︎
  77. Graeme Cowie, ‘Commons Library Research Briefing: The UK Supreme Court’ (Number 09536, House of Commons Library 2022) <https://commonslibrary.parliament.uk/research-briefings/cbp-9536/&gt; accessed 29 February 2024, especially 10-11. ↩︎
  78. Tyrrell (n 51) 1, 41, 47, 132-133. ↩︎
  79. For example: R (on the application of AAA and ors) (n 1) [24], [28]. ↩︎
  80. Lauterpracht and Bethlehem (n 21) para 78; UNHCR ‘Advisory Opinion’ (n 20) para 27. ↩︎
  81. Lauterpracht and Bethlehem (n 21) para 31; UNHCR ‘Advisory Opinion’ (n 20) para 29. ↩︎
  82. Vienna Convention on the Law of Treaties (n 27), Art 31(3); and UNHCR ‘Advisory Opinion’ (n 26) para. 14. ↩︎
  83. ibid. See also Tyrrell (n 51) pg 149 on Brice Dickson, Human Rights and Human Rights and the United Kingdome Supreme Court (Oxford University Press, 2013): ‘The House of Lords often looked at … other sources of its own motion, especially when interpreting treaties the effectiveness of which depended on the same interpretation being adopted by all States Parties to the treaty’. ↩︎
  84. R (on the application of AAA and ors) (n 1) [26]. See also Allain (n 20) ↩︎
  85. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits) [1986] ICJ 14 [186]. ↩︎
  86. R (on the application of AAA and ors) (n 1) [5], [19]. ↩︎
  87. R (on the application of AAA and ors) (n 1) [25] ↩︎
  88. For example:, Tyrrell (n 51) 7, 67-71. ↩︎
  89. R (JS (Sri Lanka)) v Secretary of State for the Home Department [2010] UKSC 15; [2011] 1 AC 184 [41], as cited in Tyrrell (n 51) 153. ↩︎

Leonie Finke

BSc Neuroscience and International Studies (University of Pittsburg) ’23, MSc International Social and Public Policy (LSE) ’24 and Notes Editor of the LSE Law Review Editorial Board 2023-24

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