Sequencing Refugee, Human Rights and Removal Constraints in Comparative Law: Non-Refoulement and National Security

Abstract

This article examines how States may pursue their national security and immigration control objectives within the parameters of the principle of non-refoulement. It identifies three legal layers that are often conflated in public debate: the 1951 Refugee Convention, notably Articles 1F and 33; human-rights obligations, notably Article 3 of the Convention against Torture (CAT) and Article 7 of the International Covenant on Civil and Political Rights (ICCPR); and domestic rules on detention, removal, procedural fairness and judicial review. Recent developments have highlighted the significance of this distinction. The UK’s Rwanda litigation highlights the legal significance of chain-refoulement risk; Australia’s NZYQ litigation shows the constitutional limits of detention when removal is not reasonably foreseeable; India’s 2025 deportation instructions and ongoing Rohingya litigation illustrate the challenges of applying refugee-law principles in a non-party system; and Pakistan’s continuing Afghan returns demonstrate the importance of individualised risk assessment under CAT and the ICCPR even outside the Refugee Convention. The article concludes that security is a legitimate governmental objective, but one that does not displace separate and potentially absolute non-refoulement obligations. This contribution provides a structured comparative model, which can be used to determine at each step of a removal decision which legal rule is applicable, which factual finding is required and which remedial option is still available.