Abstract
This paper argues that expulsion decisions in the United Kingdom are sometimes at variance with the very important non-refoulement obligations in international law and raises fundamental issues of concern. However, recent legal developments in the Strasbourg jurisprudence and the Court of Justice of the European Union seem to halt this trend of the vanishing relevance of non-refoulement obligations-a Daniel has come to judgment. This paper, applying the documentary analysis methodology argues that except this nascent development is maintained and sustained, non-refoulement obligations may still remain ‘theoretical and illusory rather than practical and effective’. The bottom line is that a State is not excused from its human rights obligations by transferring, returning or removing a migrant to another State even on the basis of agreement without actually determining whether there will be violations of the individual’s rights under international refugee law or international human rights law. It has therefore been shown that there is overwhelming evidence pointing to the establishment of non-refoulement as a norm of customary international law with wide acceptance by the international community of the prohibition of torture and cruel, inhuman and degrading treatment, as jus cogens.
Highlights
It is trite to say that States under well-established principles of international law have the right to control the ingress and egress of non-nationals into its territory’[1] enjoying as it had over time, the exercise of discretion to exclude such non-nationals as the State may deem necessary [2]
This paper argues that expulsion decisions in the United Kingdom are sometimes at variance with the very important non-refoulement obligations in international law and raises fundamental issues of concern
In the light of the above analysis, there is overwhelming evidence pointing to the establishment of non-refoulement as a norm of customary international law with wide acceptance by the international community of the prohibition of torture and cruel, inhuman and degrading treatment, as jus cogens
Summary
It is trite to say that States under well-established principles of international law have the right to control the ingress and egress of non-nationals into its territory’[1] enjoying as it had over time, the exercise of discretion to exclude such non-nationals as the State may deem necessary [2]. Lauterpacht and Bethlehem argue that the principle of nonrefoulement has acquired the status of customary international law and noted that the customary status of both the prohibition of torture and of cruel, inhuman or degrading treatment or punishment is clear [4]. As it is, the right not to be tortured or subjected to inhuman or degrading treatment is an unqualified right that can never be balanced against competing considerations. It is submitted that except this nascent development is maintained and sustained, non-refoulement obligations may still remain ‘theoretical and illusory rather than practical and effective’ International Journal of Law and Society 2020; 3(1): 20-31 development will depend on further juridical developments as it concerns medical conditions of non-nationals facing expulsion in the United Kingdom at the time of this writing
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