Removal to the country of origin or former habitual residence
29.
In determining the significance, if any, of diplomatic assurances in situations
involving the removal of a refugee to the country which he or she fled, it is necessary to
distinguish between cases where the person concerned is protected against refoulement
under Article 33(1) of the 1951 Convention and those in which one of the exceptions
provided for in Article 33(2) of the 1951 Convention is applicable. 48
30.
Diplomatic assurances should be given no weight when a refugee who enjoys
the protection of Article 33(1) of the 1951 Convention is being refouled, directly or
indirectly, to the country of origin or former habitual residence. 49 The reason for this is
that the country of refuge has already made a determination in the individual case and
has recognized the refugee to have a well-founded fear of being persecuted in the
country of origin. Once the country of refuge has made this finding, it would be
fundamentally inconsistent with the protection afforded by the 1951 Convention for the
sending State to look to the very agent of persecution for assurance that the refugee will
be well-treated upon refoulement. 50
31.
If the competent authorities of the host State have determined that a refugee
comes within the scope of one of the exceptions of Article 33(2) of the 1951
Convention, he or she does not benefit from protection against refoulement under
international refugee law. However, this does not affect the sending State’s obligations
under human rights law. In assessing whether the person’s removal on the basis of
diplomatic assurances would be in keeping with applicable human rights standards, the
sending State would need to conduct an assessment along the lines set out above at
paragraphs 20–26.
Removal to a country other than the country of origin or former habitual residence
32.
Under Article 32 of the 1951 Convention, the host State may expel a refugee
who is lawfully in the territory to a country other than the country in relation to which a
well-founded fear of persecution has been established. However, this may be
undertaken only on grounds of national security or public order, 51 and only in pursuance
of a decision reached in accordance with due process of law. 52
Convention. Refugee status as determined in one State Party should only be called into question
by another State Party in exceptional cases when it appears that the person manifestly does not
fulfil the requirements of the 1951 Convention, e.g. if facts become known indicating that the
statements initially made were fraudulent or showing that the person concerned comes within
the terms of an exclusion provision of the 1951 Convention. See Executive Committee,
Conclusion No. 12 (XXIX) – 1978 on the Extraterritorial Effect of the Determination of
Refugee Status, at paragraph (g). See also UNHCR, Note on the Extraterritorial Effect of the
Determination of Refugee Status under the 1951 Convention and the 1967 Protocol Relating to
the Status of Refugees, EC/SCP/9, 24 August 1978.
48
See above at paragraphs 11–14.
49
See UNHCR, Suresh Factum, above footnote 13, at paragraph 51.
50
See UNHCR, Suresh Factum, above footnote 13, at paragraph 52.
51
Article 32(1) of the 1951 Convention.
52
Article 32(2) of the 1951 Convention. Articles 32(2) and (3) of the 1951 Convention also
provide for minimum procedural safeguards which must be observed. See also above
footnote 18.
13
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