The External Dimension of the European Union Law in the Fields of Refuge and Asylum: A Study from the Perspective of Non-Refoulement

Abstract

This article analyses the problems posed by the externalization of migratory controls proposed within the framework of the external dimension of the European Union. The focus of the study is on the perspective of the principle of non-refoulement. The Geneva Convention on the Statute of Refugee of 1951 contains no article relating to the application ratione loci of the non-refoulement principle. It is obvious that such a principle becomes effective when the refugee is inside the receiving State or at its borders. This is the scenario evoked by the Geneva Convention. Recently, the extraterritorial application of the principle has been invoked when the control measures have been performed in the exercise of jurisdiction by the State parties of the Geneva Convention, though the refugees may be on the high seas. However, the extent of the obligation of non-refoulement is not so evident when the potential refugee is not yet outside his territory due to «externalized» migratory control measures. In such a case, the individuals subject to a measure of migratory control which impedes them departing from their own country could apply for a humanitarian visa or appeal to the right to leave, but with important limitations. After analyzing the most relevant jurisprudence of the ECtHR and to a lesser extent that of the CJUE, the article confirms the necessity of more precise legal answers than the ones in force as regards the compatibility between the external dimension of refugee and asylum of the EU and the principle of non-refoulement