Deportation with Assurances: Human Rights Barriers to Removal

DeportationDr Mariagiulia Giuffre researches into the challenges posed to national and international public policy by people excluded from the protection of the Refugee Convention and other migrants who are suspected of serious criminality, including terrorism, but who cannot be removed from the territory of the host State under human rights law. In particular, she analyses the instruments States use to transfer unwanted/unauthorized foreigners to undergo interrogation and trials abroad, and the focus of her research is on diplomatic assurances – whether framed or not within Memoranda of Understanding (MoUs) – and their reliability in the removal of the risk of ill-treatment in the receiving country. She questions the extent to which diplomatic assurances are able in principle to reduce the risk of refoulement, and whether they are effective in practice in preventing torture and ill-treatment upon removal In addressing these questions, the case law of international human rights bodies, such as the UN Human Rights Committee (HRC), the Committee against Torture, and the European Court of Human Rights (ECtHR) is analysed.

Dr Giuffre holds the view that, in principle, the content of diplomatic assurances does not seem to raise problems of incompatibility with refugee and human rights requirements. Notwithstanding, even if such assurances are considered legally permissible and are able in principle to reduce the risk of refoulement, they are not always effective in practice in preventing torture and ill-treatment. Moreover, given that the safety of return is a matter of fact, she argues that returning a person, with the assurance that she will not be tortured, to a country where torture is a systematic practice is highly problematic from a human rights and refugee law perspective. Therefore, States should refrain from relying on diplomatic assurances – whether framed or not within standardized MoUs – from countries that persist in the use of torture.

Dr Giuffre’s arguments on the topic have already been published in: ‘Access to Protection: Negotiating Rights and Diplomatic Assurances under Memoranda of Understanding’, in Gauci, J.P., Giuffré M. and Tsourdi, L., (eds.), (2015), ‘Exploring the Boundaries of Refugee Law: Current Protection Challenges’, Brill; and in ‘An Appraisal of Diplomatic Assurances One Year after Othman (Abu Qatada) v United Kingdom (2012)’, (2013) 2(2) International Human Rights Law Review.

Mariagiulia is also part of a two-year project funded by the Arts & Humanities Research Council (AHRC) and jointly convened by the Center for International Criminal Justice (Free University of Amsterdam, Netherlands) and the Refugee Law Initiative, University of London. The title of the project is ‘Undesirable and Unreturnable? Excluded Asylum-seekers and Other Migrants Suspected of Serious Criminality but Who Cannot Be Removed.’