1. definition
  2. examples and/or illustrations
  3. other useful sources
  4. bibliography


No Contracting state shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, member- ship of a particular social group or political opinion.”Convention and Protocol Related to the Status of Refugees (1951) United nations High Commissioner of Refugees (UNHCR), retrieved from: http://www1.umn.edu/humanrts/instree/v1crs.htm

It is, therefore, illegal in international law to deny someone access to protection in a host country if they are seeking safety from being persecuted for not having done something necessarily criminal but based on aspects of their identity which is a fundamental freedom protected under human rights law. Specifically in the Canadian context, the principle of non-refoulement is further protected in the Immigration and Refugee Protection Act, Section 115 (1) stating that:

“A protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment.”

Immigration and Refugee Protection Act, Statute of Canada (2001, c.27) Retrieved from the Department of Justice Canada website: http://laws-lois.justice.gc.ca/eng/acts/I-2.5/FullText.html

“The principle of non-refoulement is often referred to as the cornerstone of international protection. This principle, as enshrined in the 1951 Convention relating to the Status of Refugees, has acquired the status of customary international law, meaning that it has become binding on all States, regardless of whether or not they are signatories to the 1951 Convention. All countries must respect the principle of non-refoulement, which includes:

  • Not returning asylum seekers or refugees to a place where their life or liberty would be at risk;
  • Not preventing asylum seekers or refugees- even if they are being smuggled or trafficked- from seeking safety in a country, if there is a chance of them being returned to a country where their life or liberty would be at risk;
  • Not denying access to their territory to people fleeing persecution who have arrived at their border (access to asylum)

The principle of non-refoulement could therefore apply if a trafficking victim fears persecution or other serious harm in his or her country of origin, for example in the form of retrafficking, reprisals from traffickers or criminal networks, ostracism, social exclusion or discrimination to an extent that would amount to persecution, harassment, threats, or intimidation. It is not uncommon for victims of trafficking to fear intimidation or discrimination by the authorities.”



Examples and/or Illustrations

At a point during the Rwandan Genocide in 1995, 50 000 displaced Rwandan refugees were refused entry to Tanzanian, after an attack a refugee camp in Burundi. Tanzania closed its border as a means to protect national security as the refugees which had arrived the previous year were beginning to become a threat. Specifically Tanzania claimed that, “Protecting and assisting refugees has brought new risks to national security, exacerbated tensions between states and caused extensive damage to the environment.”  This was an unparalleled moment where a country expressed concern on the overwhelming amount of refugees having negative social implications on the host country. Tanzanian officials justified restriction of refoulement on “self-preservation” and “necessity” for the country from the vast number of entries of refugees which, due to one incident, where now seen as causing a problem.

Boed, R. (2000). State of Necessity as a Justification for Internationally Wrongful Conduct. Yale Human Rights and Development Journal, 3(1), 1-44.

Further, the Canadian Charter of Rights and Freedoms in Section 2, 7, 9, 11, 12 and 15 grants protection of rights to everyone, every person and every individual, including non-Canadian citizens in Canada, rights which can be used to further justify the use of the principle of non-refoulement.

Constitution Act, Canadian Charter of Rights and Freedoms (1982) Retrieved from the Department of Justice Canada website: http://laws-lois.justice.gc.ca/eng/const/page-15.html


Other Useful Sources

Primary source on the execution of the non-refoulement principle is outlined in The 1951 United Nations Convention Related to the Status of Refugees, Section 1. When applicable in Canada, Sections 2, 7, 9, 11, 12 and 15 of the Canadian Charter of Rights and Freedoms for non-citizens seeking safety. The equivalent Canadian Legislation, which outlines rights of refugees is the Immigration and Refugee Protection Act, under section 115 which outlines refugee protection under non-refoulement. However, if there is speculation of wanting to escape criminal charges from the origin state and those criminal charges are not in accordance with the principles of fundamental justice in Canadian jurisdiction, the Extradition Act is designated under Section 3.1(b), “the conduct of the person, had it occurred in Canada, would have constituted an offence punishable in Canada.” Only under those conditions can refoulement occur where it is in the best interest of the safety of the nation which refoulement is being requested to extradite a refugee to the country where the offence occurred for prosecution.

Constitution Act, Canadian Charter of Rights and Freedoms (1982) Retrieved from the Department of Justice Canada website: http://laws-lois.justice.gc.ca/eng/const/page-15.html

Extradition Act, Statute of Canada (1999, c.18) Retrieved from the Department of Justice Canada website: http://laws-lois.justice.gc.ca/eng/acts/E-23.01/index.html

Case Law

Mr. Suresh came to Canada from Sri Lanka and was denied immigration to Canada by the Canadian Security Intelligence Services because he was assumed to be conspiring with the terrorist organization of the Tigers of Tamil Eelam. It was a recognized fact that people of this organization are subject to torture in Sri Lanka, Mr. Suresh was on the deportation list despite being a clear violation of his Section 7, Charter right to life, liberty and security of the person. Additionally, subjecting Mr. Suresh to deportation back to Sri Lanka where he would be tortured, would be a violation of the international agreement outlined in the Refugee Convention, Section 33(2) that a refugee is entitled to plea non-refoulement on threat of deportation from a host country. It is only if the refugee is charged of a serious crime in the host country that deportation can be obligatory, however even in such a case the seriousness of said crime has to outweigh the protection of an individuals rights. Ultimately, government agents considered Mr. Suresh a “danger to the security of Canada” and in order to be exonerated of this status of being a threat, he put Canadian officials on trial.

Suresh v. Canada (Minister of Citizenship and Immigration), Supreme Court of Canada. (2002)    Retreived from the Canadian Legal Information Institute website: http://www.canlii.org/en/ca/scc/doc/2002/2002scc1/2002scc1.pdf

            The Németh family came to Canada and sought refugee status because of alleged in justices occurring in their home country of Hungary, the couple and their children ultimately became permanent residents in Canada. After some time, the Hungarian authorities requested Canada to extradite on charges of fraud, however, the Németh’s requested protection under non-refoulement because of the perceived threat of having their human rights violated upon extradition. Under the Extradition Act, there are certain conditions under which the minister of justice cannot forcefully extradite a refugee, specifically under section 44(1)(b) combined with the inability to revoke non-refoulement protection.

Németh v. Canada, Supreme Court of Canada. (2010) Retrieved from the Canadian Legal Information Institute website:http://www.canlii.org/en/ca/scc/doc/2010/2010scc56/2010scc56.pdf