Deportation with Assurances and Human Rights

Abstract

A foreign national maybe considered irremovable for various administrative and practical reasons. One significant category comprises those persons who cannot be deported due to human rights concerns in the country to which they would be returned.Nonetheless,such persons may in principle be deemed undeserving of refugee protection in the host state, or otherwise undesirable, including on the basis of alleged serious crimes committed prior to their arrival or due to public safety concerns arising from their conduct after arrival.They thus end up to be trapped in a legal and‘status’ limbo. The aim of this article is to investigate whether diplomatic assurances on the fair and human treatment of the deportee would be able in principle to reduce the risk of refoulement, and whether they are effective in practice in preventing torture and ill-treatment in the receiving country. In addressing this issue, it explores the case law of international human rights bodies showing how diplomatic assurances are generally upheld as one factor amongst many in the assessment of the risk, rather than trusted at face value. However, given that the safety of return is a matter of fact, this article questions the possibility of returning a person, with the assurance he/she will not be ill-treated, to a country where torture is notoriously practiced. Moreover, it argues that devolving upon diplomats and political acts the protection of fundamental rights in security-related deportations would also defend the maintenance of a regime of exceptionalism for people suspected of serious criminality and who cannot be removed from the territory of the host state