43
4.2
Convention against Torture
The prohibition of expulsion or return (non-refoulement) in Article 3 of the 1984 Convention against Torture which has been ratified by all EU Member States22 also provides that the expulsion or return of a person where there is a real risk of torture is a violation of the convention. However, the implementation of the 1984 Convention against Torture, including non-refoulement on the grounds of Article 3 is not under a judicial or administrative organization’s supervision. Besides, there is no indication that the non-refoulement obligation in the 1984 Convention against Torture is considered a norm of jus cogens or an erga omnes. The non-refoulement in Article 3 of the 1984 Convention against Torture is not as absolute as the ECHR. 4.3
Directive 2008/115/EC (Return Directive)
Finally, the Member State is also required to respect the principle of non-refoulement in EU law. A 1(F) excluded asylum seeker who has no legal permit to remain in the country of Refugee would become an illegally staying third-country national. To control and regulate illegally staying third-country nationals, the EU has adopted common rules on common standards and procedures in the Member States for returning illegal-staying third-country nationals in the Directive 2008/115/EC (hereafter, Return Directive) and all Member States are bound by it except the UK and Ireland.23 Based on human rights protection, Article 5 of the Return Directive provides that the Member States shall respect the principle of non-refoulement in all cases when implementing this Directive.24 The Member States shall not derogate its obligation to human rights law by implementing the removal measures. In other words, the Member States must ensure that any return of non-EU nationals, including 1(F) excluded asylum seekers, would not put them in danger. The excluded asylum seeker could seek a remedy before the CJEU if the country of Refugee fails to respect the common standards set in the Return Directive or other EU law. To some extent, Article 5 of the Return Directive thus constitutes a requirement, albeit less absolute, for the EU Member States to not return those excluded asylum seekers if there are reasons to believe such removal could result in a violation of the Return Directive (Lut, 2016). A dilemma for the country of Refugee is that although excluded asylum seekers are not qualified for international protection; the country of Refugee may not be able to return excluded asylum seekers because of the principle of non-refoulement in the ECHR, Convention against Torture and the Return Directive of EU law. In the Netherlands, there are 40 excluded asylum-seekers among 250 illegally residing excluded persons are unreturnable on the grounds of Article 3
high burden of proof required to demonstrate a real risk of a flagrant denial of justice if he were deported to Jordan. 22 See Article 3(1) ‘No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture’. 23 See preamble paragraph 26 of the Return Directive. All EU States except the UK and Ireland are bound by the Return Directive and are obligated to transpose the directive into municipal law. Four Schengen associated countries- Switzerland, Norway, Iceland and Liechtenstein- also take part in this Directive. The Return Directive came into force on 24 December 2014 and all Member States shall comply with it and transpose the common standards into national law. 24 See Article 5 of the Return Directive