11a PDF

11A
REGIONAL ISHKAFEL COURT OF HUMAN RIGHTS
NALSAR UNHCR PUBLIC INTERNATIONAL LAW

MOOT COURT COMPETITION, 2022
CASE CONCERNING
The Nai’xan Refugees of the Republic of Alanor
THE DEMOCRATIC REPUBLIC OF NEW BALANAR

(APPLICANT)
v.
THE FEDERATION OF RAZZIL

(DEFENDANT)
MEMORIAL FOR APPLICANT

MEMORIAL ON BEHALF OF APPLICANT
TABLE OF CONTENTS
TABLE OF CONTENTS .......................................................................................................... II
LIST OF ABBREVIATIONS ................................................................................................. IV
INDEX OF AUTHORITIES..................................................................................................... V
STATEMENT OF JURISDICTION.................................................................................... XIII
SUMMARY OF FACTS ..................................................................................................... XIV
ISSUES RAISED ................................................................................................................ XVII
SUMMARY OF ARGUMENTS ...................................................................................... XVIII
ARGUMENTS ADVANCED ................................................................................................... 1
ISSUE I:THE DETENTION OF ASYLUM-SEEKERS BY RAZZIL VIOLATES

PRINCIPLES OF INTERNATIONAL LAW ................................................................... 1
A. The Detention Of Asylum Seekers Was Unlawful ..................................................... 1
B. The Detention Of Asylum Seekers Is In Violation Of Right To Life, Liberty And

Security ............................................................................................................................... 3
ISSUE II:RAZZIL’S CLOSURE OF BORDERS IN LIGHT OF A PUBLIC HEALTH

CRISIS VIOLATES THE PRINCIPLE OF NON-REFOULEMENT ........................... 7
A. Principle of Non-Refoulment is an absolute right against torture ............................... 7
B. Protection Under Human Rights Law .......................................................................... 11
C. Non-Refoulement in times of Emergency ................................................................. 12
ISSUE III:THE IMMIGRATION CONTROL BILL, 2019 CONTRAVENES

ARTICLE 31 OF THE REFUGEE CONVENTION AND RAZZIL’S OTHER
OBLIGATIONS UNDER INTERNATIONAL LAW .................................................... 16
A. Section 9 of the bill is in violation of Razzil’s obligations.......................................... 16
B. Section 20 of the bill is in violation of Razzil’s obligations ....................................... 20
ISSUE IV:THE COUNTRIES APART FROM RAZZIL IN THE ISHKAFEL UNION

DO NOT HAVE A DUTY TO SHARE THE RESPONSIBILITY TO OFFER
II
MEMORIAL ON BEHALF OF APPLICANT
PROTECTION TO THE ASYLUM-SEEKERS AND ADDRESS THE REFUGEE

CRISIS…………………………………………………………………………………….22
A. Razzil Has A Responsibility To Not Transfer Asylum-Seekers In States Where There

Is A Risk Of Violation Of Human Rights ........................................................................ 22
B. The Nai’xans Didn’t Apply For International Protection In Britannia & Wadia...... 24
C. Razzil Is Required To Grant Asylum On Humanitarian Grounds ............................ 25
PRAYER ............................................................................................................................... XX
III
MEMORIAL ON BEHALF OF APPLICANT [LIST OF ABBREVIATION]
LIST OF ABBREVIATIONS
Sr. No. Abbreviation Expansion

1. & and
Articles on Responsibility of States for Internationally
2. ARSIWA
Wrongful Acts
3. Art. Article
4. CJEU Court of Justice of European Union
5. ECtHR European Court of Human Rights
6. Ed. Edition
7. EXCOM Executive Committee
8. HRC Human Rights Commission
9. ICCPR International Covenant on Civil and Political Rights
International Covenant on Economic, Cultural and Social
10. ICESCR
Rights of 1966
11. ICJ International Court of Justice
12. IHrL International Human Rights Law
13. Ors Others
14. p Page number
15. para Paragraph
16. Refugee Convention Convention Relating to Status of Refugees of 1951
17. Refugee Protocol Protocol Relating to Status of Refugees of 1967
18. UDHR Universal Declaration of Human Rights of 1948
19. UK United Kingdom
20. UN United Nations
21. UNGA United Nations General Assembly
22. UNHCR United Nations Human Rights Commision
23. v Versus
24. VCLT Vienna Convention on the Law of Treaties of 1969
IV
MEMORIAL ON BEHALF OF APPLICANT [INDEX OF AUTHORITIES]
INDEX OF AUTHORITIES
ECtHR Cases
AA v Greece App No 12186/08 (ECtHR, 22 July 2010) ......................................................... 13

Abdolkhani and Karimnia v Turkey (No 2) App No 30471/08 (ECtHR, 27 July 2010). ........ 12
Aerts v Belgium App No 25357/94 (ECtHR, 30 July 1998) [46] ............................................ 12
Enhorn v Sweden App No 56529/00 (ECtHR, 10 December 2002) [42] ................................ 13
Lokpo and Touré v Hungary App No 10816/10 (ECtHR, 8 March 2012) [21]....................... 10
Lutsenko v Ukraine App No 6492/11 (ECtHR, 3 June 2012).................................................. 11
Mikolenko v Estonia App No 10664/05 (ECtHR 8 January 2010). ......................................... 12
ML And Others v Russia App nos 25079/19 and 18570/19 (ECtHR, 6 April 2021) ............... 20
MSS v Belgium and Greece [GC], App No 30696/09 (ECtHR, 21 January 2011)............ 24, 31
Muskhadzhiyeva et autres v Belgique App No 41442/07, (ECtHR,19 January 2010) [69]-[75]
.................................................................................................................................................. 13
NA v United Kingdom Application No 25904/07 (ECtHR, 6 August 2008) [115].................. 17
Othman (Abu Qatada) v United Kingdom App No 8139/09 (ECtHR, 17 January 2012) [235,
258]. ......................................................................................................................................... 18
Paposhvili v Belgium App No 41738/10 (ECtHR 13 December 2016)................................... 20
Paposhvili v Belgium Application no 41738/10 (ECtHR, 13 December 2016). ..................... 24
Saadi v the United Kingdom App No 13229/03 (ECtHR, 29 January 2008). ......................... 10
Soering v United Kingdom Application No 14038/88 (ECtHR, 7 July 1989). ........................ 24
TI v the United Kingdom Application no 43844/98 (ECtHR, 7 March 2000). ........................ 32
Vasileva v Denmark App No 52792/99 (ECtHR, 25 September 2003) [37]. .......................... 11
Treaties and Conventions
Convention on Rights of Children, E/CN.4/RES/1990/74 (7 March 1990). ........................... 13

Convention on the Elimination of All Forms of Discrimination Against Women, 18 December
1979, UNTS 34/180 ................................................................................................................. 14
Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22
April 1954) 189 UNTS 137 ..................................................................................................... 17
Convention for the Protection of Human Rights and Fundamental Freedoms (European
Convention on Human Rights, as amended) (hereinafter, ‘ECHR’), art 2 .............................. 12
V
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into
force 23 March 1976) 999 UNTS 171……………………………………………………...16
International Covenant on Economic, Social and Cultural Rights, 16 December 1966 .......... 14
Protocol Relating to the Status of Refugees (adopted 31 January 1967, entered into force 4
October 1967) 606 UNTS 267 ................................................................................................. 17
United Nations, ‘Convention Against Torture and Other Cruel, Inhumane or Degrading
Treatment or Punishment’ (enacted 10 December 1984, entered into force26 July 1987) 1465
UNTS 85 .................................................................................................................................. 21
Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III)
.................................................................................................................................................. 13
Vienna Convention on the Law of Treaties (United Nations) 1155 UNTS 331 ...................... 21
National Legislations
Human Rights Act 1998, art 3. ................................................................................................ 10

Immigration Act 1971, schedule 2, para 16(2). ....................................................................... 10
National Cases
A and Ors v Secretary of State for the Home Department [2004] UKHL 56. ......................... 12
Al-Kateb v Godwin [2004] HCA 37......................................................................................... 12
Kapoor and Ors v R [2012] 1 WLR 3569 [23]. ....................................................................... 29
R (Adimi) v Uxbridge Magistrates Court & Anr [2001] QB 667, 678. ................................... 26
R (ST (Eritrea)) v Secretary of State for the Home Department [2012] 2 AC 135 [30]. ......... 26
R v Secretary of State for the Home Department ex parte Limbuela [2005] UKHL 66. ......... 13
UN Documents
CAT, ‘General Comment No 4’ on the Implementation of Article 3 Of the Convention in The

Context of Article 22(2017) [22] ............................................................................................. 18
CAT, General Comment No 4 (2017) on the Implementation of Article 3 Of the Convention in
The Context Of Article 22 [13]. ............................................................................................... 17
Convention on the Elimination of All Forms of Discrimination Against Women, art. 14(2), 18
December 1979, U.N.T.S. 34/180............................................................................................ 14
Convention on the Rights of the Child, art. 62, 7 March 1990, E/CN.4/RES/1990/ ............... 13
HRC, ‘General Comment 36’ on Right to Life (3 September 2019) UN Doc CCPR/C/GC/35.
.................................................................................................................................................. 13
VI
HRC, ‘General Comment No 15’ on The position of aliens under the Covenant [1].............. 12
HRC, ‘General Comment No 18’ on Non-discrimination (11 October 1989) [1] ................... 12
Office of Human Rights Commissioner HRC, ‘The Principle of Non-Refoulment’ (United
Nations Human Rights Commissioner, 2020)
<https://www.ohchr.org/sites/default/files/Documents/Issues/Migration/GlobalCompactMigr
ation/ThePrincipleNon-RefoulementUnderInternationalHumanRightsLaw.pdf> accessed 10
June 2022 ................................................................................................................................. 17
Office of the High Commissioner, ‘About Arbitrary Detention’ (UNHCR)
<https://www.ohchr.org/en/about-arbitrary-detention> accessed 9 June 2022. ...................... 11
Office of the High Commissioner, ‘Recommended Principles and Guidelines on Human Rights
at International Borders’ (UNHRC)
<https://www.ohchr.org/sites/default/files/Documents/Issues/Migration/OHCHR_Recommen
ded_Principles_Guidelines.pdf> accessed 10 June 2022......................................................... 18
Special Rapporteur on the Human Rights of Migrants, Mr. Jorge Bustamante, Annual Report
to the 11th Session of the Human Rights Council, UN Doc A/HRC/11/7, 14 May 2009 [43]14
UN Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons (13th
Meeting, 22 November 1951) A/CONF.2/SR.13 <www.refworld.org/docid/3ae68cdc8.html>
accessed 30 May 2022]. ........................................................................................................... 27
UN General Assembly, Responsibility of States For Internationally Wrongful Acts (28 January
2002) 56/83 (A/RES/56/83) ..................................................................................................... 23
UN, ‘Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women
Offenders (the Bangkok Rules)’ A/C3/65/L5 (6 October 2010) r 5 ........................................ 15
UNGA Res 2542(XXIV), Habitat: United Nations Conference on Human
Settlements, A/RES/31/109 (16 Decemner 1976) ................................................................... 14
UNGA Res 55/25 ‘Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and Children, Supplementing the United Nations Convention against Transnational
Organised Crime’ (adopted 15 November 2000) art 14. ......................................................... 29
UNGA, ‘Global Compact on Refugees’ A/RES/73/151 (adopted 17 December 2018) .......... 28
UNGA, Report of the International Law Commission (23 July 1999) UN Doc A/54/10. ...... 23
VII
UNHCR, ‘“Summary of Conclusions” Refugee Protection in International Law’

<www.alnap.org/system/files/content/resource/files/summary/erd-2848-summary.pdf>
accessed 28 May 2022 [255].................................................................................................... 26
UNHCR, ‘Advisory Opinion on the Extraterritorial Application of Non-Refoulement
Obligations under the 1951 Convention relating to the Status of Refugees and its 1967
Protocol’ (26 January 2007) <www.refworld.org/docid/45f17a1a4.html> accessed 9 June 2022
[11] ........................................................................................................................................... 19
UNHCR, ‘Article 31 of the 1951 Convention Relating to the Status of Refugees’ (July 2017)
PPLA/ 2017/01......................................................................................................................... 25
UNHCR, ‘Detention Guidelines’ <https://www.refworld.org/pdfid/503489533b8.pdf>
accessed 2 June 2022. .............................................................................................................. 11
UNHCR, ‘Draft Report of the Ad hoc Committee on Statelessness and Related Problems;
Proposed Draft Convention relating to the Status of Refugees’ UN Doc E/AC.32.L.38 (15
February 1950). ........................................................................................................................ 26
UNHCR, ‘Emergency Handbook’ <https://emergency.unhcr.org/entry/44308/best-interests-
procedure> accessed 11 June 2022 .......................................................................................... 18
UNHCR, ‘Guidance on Responding to Irregular Onward Movement of Refugees and Asylum-
Seekers’ (September 2019) <www.refworld.org/pdfid/5d8a255d4.pdf> accessed 5 June 2022
.................................................................................................................................................. 25
UNHCR, ‘Guidelines on Detention’ (2012)
<www.unhcr.org/publications/legal/505b10ee9/unhcr-detention-guidelines.html> accessed 19
May 2022 [3]............................................................................................................................ 11
UNHCR, ‘Handbook on Procedures and Criteria for Determining Refugee Status’
<www.unhcr.org/4d93528a9.pdf> accessed 25 May 2022 [95]. ............................................. 30
UNHCR, ‘Legal Considerations with Regard to The EU Commission’s Guidelines for Border
Management Measures to Protect Health and Ensure the Availability of Goods and Essential
Services’ (18 March 2020) <www.refworld.org/pdfid/5e7882484.pdf> accessed 27 May 2022
.................................................................................................................................................. 21
UNHCR, ‘Protection Training Manual for European Border and Entry Officials - 4. Identifying
Protection Needs in Group Arrivals’ <www.unhcr.org/publications/manuals/4d944f229/unhcr-
protection-training-manual-european-border-entry-officials-4-identifying.html> accessed 28
May 2022. ................................................................................................................................ 21
VIII
UNHCR, ‘Summary Conclusions on the Concept of "Effective Protection" in the Context of

Secondary Movements of Refugees and Asylum-Seekers’ (February 2003)
<www.unhcr.org/protection/globalconsult/3e5f323d7/lisbon-expert-roundtable-summary-
conclusions-concept-effective-protection.html> accessed 6 June 2022. ................................. 27
UNHCR, ‘UNHCR Observations on the Nationality and Borders Bill’ (October 2021)
<www.unhcr.org/uk/615ff04d4.pdf> accessed 28 May 2022 [4] ............................................ 28
UNHRC, ‘Report of the Special Rapporteur on Torture’ A/HRC/37/50 (26 February 2018). 18
United Nations High Commissioner for Refugees ‘Observations on the New Plan for
Immigration policy statement of the Government of the United Kingdom’ (May 2021)
<www.unhcr.org/uk/60950ed64.pdf> accessed 11 June 2022 ................................................ 25
United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990) ......... 14
Working Group on Arbitrary Detention ‘Opinion 45/2006’ UN Doc A/HRC/7/4/Add 1 ....... 12
Journals
Andre Renzaho, ‘Human Right To Food Security In Refugee Settings: Rhetoric Versus Reality’
47 Australian Journal Of Human Rights 8(1) (2002). .............................................................. 13
B Çalı, C Costello, S Cunningham ‘Hard Protection through Soft Courts? Non-Refoulement
before the United Nations Treaty Bodies’ (2020) German Law Journal 21(3) ....................... 18
Daniel Ghezelbash and Nikolas Feith Tan, ‘The End of the Right to Seek Asylum? COVID-19
and the Future of Refugee Protection’ (2021) International Journal of Refugee Law. ........... 22
Dr Ronan Cormacain, ‘Nationality and Borders Bill: A Rule of Law Analysis of Clauses 29 to
39’ (2022) Bingham Centre for the Rule of Law 16 ................................................................ 29
Helen Obregón Gieseken, ‘The Protection of Migrants Under International Humanitarian Law’
(2017) International Review of the Red Cross 99 [121-152]. ................................................. 20
Lehte Roots, ‘Burden Sharing and Dublin Rules – Challenges of Relocation of Asylum
Seekers’ 3(1) Athens Law Journal [7-20] ................................................................................ 31
Books
A Edwards and C Ferstman, ‘Humanizing Non-Citizens: The Convergence of Human Rights

and Human Security’, in A. Edwards and C. Ferstman (eds), Human Security and Non-
Citizens: Law, Policy and International Affairs (Cambridge: Cambridge University Press,
2010), ch 1 ................................................................................................................................. 1
IX
Hugh Kindred, International Law, Chiefly as Interpreted and Applied in Canada, (Toronto:
Emond Montgomery 2000, 6th ed) [130]............................................................................. 19
Malgosia Fitzmaurice, ‘The Practical Working of the Law of Treaties’ in Malcolm D Evans
(ed), International Law (4th edn, OUP 2014) 166, 179 ....................................................... 25
Michael Hass, International Human Rights: A Comprehensive Introduction 3 (2nd ed
Routledge Taylor & Francis group 2008). ........................................................................... 13
Olivier Corten and Pierre Klein, The Vienna Conventions on the Law of Treaties: A
Commentary (OUP 2011) 807.............................................................................................. 25
Phil Orchard, Protecting the Internally Displaced: Rhetoric and Reality (Routledge, 2018) . 21
Ruth Rubio-Marín, Human Rights and Immigration, (OUP 2014) ......................................... 22
UNHCR, Refugee Children: Guidelines on Protection and Care (1994), ch 7. ..................... 14
Other Authorities
‘Enforcement Instructions and Guidance’ (UK Government)

<https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_
data/file/307995/Chapter55.pdf> accessed 8 June 2022. ..................................................... 10
45th International Labour Conference, ‘Workers’ Housing Recommendation’ (28 June 1961).
.............................................................................................................................................. 14
Alice Edwards, ‘Back to Basics: The Right to Liberty and Security of Person and ‘Alternatives
to Detention’ of Refugees, Asylum-Seekers, Stateless Persons and Other Migrants’ (Legal
and Protection Policies Research Series, UNHCR, April 2011)
<https://www.unhcr.org/4dc949c49.pdf> accessed 1 June 2022. ........................................ 11
American Immigration Lawyers Association, ‘ICE Announces Alternative Detention Program’
(18 June 2004) <www.aila.org/infonet/ice-announces-alternative-detention-program>
accessed 9 June 2022............................................................................................................ 11
Amnesty International, ‘Human Rights Developments and Violations’ (1 October 1997)
<www.refworld.org/docid/3ae6a9bb0.html> accessed 11 June 2022 ................................. 21
Aneurin Brewer, ‘An analysis of the Nationality and Border Bill’ (21 July 2021)
<www.lawgazette.co.uk/commentary-and-opinion/an-analysis-of-the-nationality-and-
borders-bill/5109298.article> accessed 21 May 2022. ........................................................ 30
Asylum Information Database, ‘The implementation of the Dublin III Regulation in 2020’
(September 2021) <https://asylumineurope.org/wp-
content/uploads/2021/09/AIDA_Dublin-Update-2020.pdf > accessed 3 June 2022 ............. 3
X
Dr Ronan Cormacain, ‘Nationality and Borders Bill: A Rule of Law Analysis of Clauses 29 to
39’ (Bingham Centre for the Rule of Law, 2022)
<https://binghamcentre.biicl.org/documents/136_nationality_and_border_bill_report_part_
1.pdf> accessed 9 June 2022 [9] .......................................................................................... 27
Dublin Regulation III, art 2(e) ................................................................................................. 33
European Parliament and Council, Directive 2013/33/Eu 2013 .............................................. 22
EXCOM Conclusion No 15 (XXX) Refugees without an Asylum Country 1979, para. (h) (iv).
.............................................................................................................................................. 27
EXCOM Conclusion No 15 (XXX), Refugees without an Asylum Country, 1979. ................ 25
Executive Committee Conclusion No 39 (XXXVI) on Refugee Women and International
Protection ............................................................................................................................. 15
Home Office, ‘Applications from Abroad: Policy’ (20 September 2011)
<https://www.gov.uk/government/collections/asylum-decision-making-guidance-asylum-
instructions> accessed 25 May 2022.................................................................................... 30
I-ACmHR, ‘Human Rights of Migrants, International Standards and the Return Directive of
the EU’ Resolution No 03/08 (25 July 2008)....................................................................... 11
ICRC, ‘Note on the Protection of Migrants in the Face of the COVID-19 Pandemic’ (20 April
2020)
<www.icrc.org/en/download/file/117261/public_note_on_the_protection_of_migrants_in_t
he_face_of_the_covid-19_pandemic_08.04.2020.pdf> accessed 10 June 2022 ................. 23
International Law Commission, ‘Peremptory Norms of General International Law (Jus
cogens)’ <https://legal.un.org/ilc/guide/1_14.shtml> accessed 11 June 2022. .................... 21
Joshua Malidzo Nyawa, ‘The Principle of Non-Refoulment; An Inherent Obligation on A
State’ (14 October 2017) <https://joshuamalidzonyawa.wordpress.com/2017/10/14/the-
principle-of-non-refoulment-an-inherent-obligation-on-a-state/> accessed 26 May 2022 .. 19
Legislative Decree 286/1998 (Italy) art 19(1) ......................................................................... 18
Legislative Decree No 1350 of 2017 (Peru) ............................................................................ 18
Maurits Dolmans, Byron Spring et al, ‘UK: COVID-19: The Effect on Refugees’ (Cleary
Gottlieb Steen & Hamilton LLP, 4 May 2020) <www.mondaq.com/uk/government-
measures/926878/covid-19-the-effect-on-refugees> accessed 12 June 2022. ..................... 23
MICHAEL HASS, INTERNATIONAL HUMAN RIGHTS: A COMPREHENSIVE INTRODUCTION 3 (2nd
ed. Routledge Taylor & Francis group 2008). ..................................................................... 13
XI
OAU, Convention Governing Specific Aspects of Refugee Problems in Africa 1001 UNTS 45
(entered into force 20 June 1974). ........................................................................................ 18
OECD, ‘The Impact of Coronavirus (COVID-19) On Forcibly Displaced Persons in
Developing Countries OECD’ (15 June 2020) <www.oecd.org/coronavirus/policy-
responses/the-impact-of-coronavirus-covid-19-on-forcibly-displaced-persons-in-
developing-countries-88ad26de/> accessed 29 May 2022 .................................................. 20
Organization of American States, ‘American Convention on Human Rights, "Pact of San Jose",
Costa Rica’ (enacted 22 November 1969, entered into force 18 July 1978) (hereinafter,
‘Inter-American Convention on Human Rights’) ................................................................ 18
Other Cases of Different Jurisdictions
Abubacarr Jawo v Bundesrepublik Deutschland [GC], C-163/17 (19 March 2019) .............. 31
Bundesrepublik Deutschland v Kaveh Puid, C-4/11 (14 November 2013) ............................. 33
Caso Familia Pacheco Tineo v Estado Plurinacional de Bolivia, IACtHR Series C No 272 22
Chahal v United Kingdom (1996) 23 EHRR 413. ................................................................... 16
D v United Kingdom (1997) 24 EHRR 423 ............................................................................. 16
European Roma Rights Centre (ERRC) v Greece Complaint No 15/2003 (ECSR, 8 December
2004) [24]. ............................................................................................................................ 14
Foucha v Louisiana 504 US 71 (1992) [80] ............................................................................ 12
HRC, A v Australia (Communication No 560/1993) UN Doc CCPR/C/59/D/560/1993. ....... 11
HRC, Ali Aqsar Bakhtiyari and Roqaiha Bakhtiyari v. Australia, Communication No
1069/2002 UN Doc CCPR/C/79/D/1069/2002. ................................................................... 15
HRC, Bakhtiyari v. Australia Comm No 1069/2002 UN Doc CCPR/C/79/D/1069/2002. ..... 14
HRC, C v Australia Comm No 900/1999 UN Doc CCPR/C/76/D ......................................... 20
HRC, Van Alphen v The Netherlands (Communication No 305/1988) UN Doc
CCPR/C/39/D/305/1988 [5.8]. ............................................................................................. 11
IACtHR, Advisory Opinion OC-21/14 (19 August 2014) [229] ............................................. 20
K v Bundesasylamt [GC], C-245/11 (6 November 2012) ........................................................ 33
Nationality Decrees issued in Tunis and Morocco (Advisory Opinion) 1922 PCIJ Ser B No 2
[24] ....................................................................................................................................... 12
NS v Secretary of State for the Home Department and ME and Others v Refugee Applications
Commissioner & Minister for Justice, Equality and Law Reform [GC] C-411/10 and C-
493/10 (21 December 2011) ................................................................................................. 33
XII
MEMORIAL ON BEHALF OF APPLICANT [STATEMENT OF JURISDICTION]
STATEMENT OF JURISDICTION
It is hereinafter most respectfully submitted that the applicant has exercised its erga omnes
obligations and brought an action against the defendant before the Hon’ble Court pursuant to
Article 331 of the European Convention of Human Rights.
Therefore, pursuant to Article 32(1)2 of the ECHR read with Article 33, this Hon’ble Court has
jurisdiction over the present case.
1
“Any High Contracting Party may refer to the Court any alleged breach of the provisions of the Convention
and the Protocols thereto by another High Contracting Party.”
2
“The jurisdiction of the Court shall extend to all matters concerning the interpretation and application of the
Convention and the Protocols thereto which are referred to it as provided in Articles 33, 34, 46 and 47.”
XIII
MEMORIAL ON BEHALF OF APPLICANT [SUMMARY OF FACTS]
SUMMARY OF FACTS
[THE ISHKAFEL CONTINENT]

Ishkafel is a continent which comprises a group of 18 democratic countries having varying
socio-economic backgrounds and political structures. Of these 18 countries, 12 countries
including Razzil are located in the western part of Ishkafel, while the remaining 6 countries are
in the eastern part. The eastern countries have a long history of being colonized by some of the
powerful western countries who fought among themselves to control these eastern countries.
This resulted in the Treaty of Ancram dividing the east into six countries including Alanor and
New Balanar. Eventually after an era of war and mass migration, these countries got
independence in 1942. However, some of the countries since have remained active conflict
zones due to their complex history and ethnic composition owing to years of mass migration.
[NAI’XANS: A MINORITY IN ALANOR]

Alanor has been the hotspot for the majority of ethnic conflicts of different degrees due to
large-scale internal migration as well as fallacious border demarcations which impacted ethnic
composition in the country. The Clans of Minnerva and Kessaj are the dominant clans while
the clans of Shai and Nai’x are the other two clans in Alanor that find very little influence in
the country’s politics. Nai’x clan has been particularly has been always regarded as outsiders
by the rest of Alanor despite having lived there for generations. Nai’xans majorly based in the
state of Mangix have been often left ignored by the Government. They have been kept out of
the purview of government schemes on housing, education, and health and find it difficult to
find jobs in government departments. Despite their repeated requests for increased
representation, the government has side-lined them.
[NAI’XANS’ UPRISING]
In 1999, Ajax a young Nai’xan activist, publicly started discussing the problems of the
Nia’xans and lobbied for their rights. He subsequently gained popularity amongst the Nai’xans.
In December 2000, he wrote an article depicting the conditions of Nai’xans in a popular
newspaper column. Following this, young Nai’xan men were sensitized who organized
themselves into the Nai’x Peoples’ Liberation Movement (NPLM). NPLM was initially
involved in sensitizing Nai’xans of their rights, lobbying politicians and Alanor’s government
for better policies. The NPLM in 2006 decided to undertake more compelling measures and
elected Zeke Thrall as their Supreme Leader. A peaceful protest of about 1,000 Nai’xans was
XIV
organised outside the Governor’s Palace in Juno to request him to take urgent measures for the
betterment of his people. The Governor refused to meet the gathering and sent a battalion of
2000 armed para-military troops which started beating them with batons. Many protesters,
seeing this as a disproportionate response, fought back. About 570 protesters were injured, and
at least 237 died in the clash.
[THE FLEEING OF NAI’XANS FROM ALANOR]

September 2006 to April 2007 was an unfortunate event for Nai’xans. There was a general
sentiment of contempt against them. The police regularly started patrolling their settlement to
arrest anyone they thought was linked to the protest or NPLM. To escape the hardships, about
2,500 Nai’xans fled the country and entered the western countries Britannia and Wadia, which
share borders with Alanor, to seek asylum. However, their life in these countries was also
deplorable. Of the Nai’xans who fled, around 1000 refugees transited to Razzil, where these
refugees were initially welcomed by the government. Meanwhile further atrocities were
committed in the next two years in Alanor against the Nai’xans. Fearing for their lives, in
January 2019, about 800 Nai’xans escaped Alanor and entered Britannia and Wadia. Of these,
170 Nai’xans presented themselves before the Wadian and Britannian RSDA while the
remaining 630 Nai’xans entered into Razzil by foot on February, 2019 as Razzil was considered
a developed country having strong asylum laws.
[DETENTION OF ASYLUM SEEKERS BY RAZZIL]

At the border, the 630 Nia’xans that entered Razzil claimed to be asylum-seekers fleeing from
persecution in Alanor. The Razzilian Asylum Claims Department however moved them to a
newly constructed detention facility in the southern suburbs of Moria. In the next few weeks,
another 400 Nai’xans fled Alanor, and passed through Wadia and Britannia to claim asylum in
Razzil. They were also moved to the southern suburbs of Moria. Several media outlets and
NGOs reported the abhorrent conditions in Razzil’s Abaddon Detention Centre. The reports
claimed centre lacked basic health facilities and houses over 2,000 immigrants from different
countries. There was barely any food or water, families were split and allocated different cells,
and the people who were relieved from the centre reported the use of torture techniques during
investigation and screening procedures.
[THE DISPUTE RELATING TO ASYLUM SHARING RESPONSIBILITY]

Meanwhile, of the 120 people who claimed asylum in Britannia, there were reports of
deportation of 27 refugees to Alanor where they were met with severe and inhumane custodial
XV
torture and later shot dead by the government agents. The Razzilian Government claimed that
according to the WIAR, Razzil has no obligation to process their asylum application. It stated
that the 630 requests of asylum-seekers are bound to be processed by Britannia and Wadia,
since according to the WIAR, it is the duty of the first country of asylum to process these
applications. However, Britannia and Wadia responded to that that they have no responsibility
towards the asylum-seekers as they used their territory merely as a transit route and did not
apply for asylum there, but applied for it only in Razzil.
[PUBLIC HEALTH CRISIS IN RAZZIL]

In March 2019, a virus named Klobe Virus spread in the Zarda state in Razzil which further
escalated to the other parts of the country. Owing to the quick spread of the virus, the
Government of Razzil on April 18 declared a national emergency until further notice and closed
all the internal and external borders. On April 19, the countries bordering Razzil including
Britannia, Wadia also came out with a notification banning international travel and closing
their borders as a precautionary measure. During this period, around 300 Nai’xan asylum-
seekers from Alanor also reached Razzil’s borders on foot at midnight on April 18. However,
they were turned back at the borders, and told that the borders will be closed till further notice
due to the Klobe Virus. When they attempted to return to Wadia, through which they had
entered Razzil, Wadian border security also refused to take them citing Klobe Virus. This left
the asylum-seekers trapped and stranded at the borders between the two countries without
adequate shelter, food or water.
[THE ILLEGAL IMMIGRATION CONTROL BILL]

Meanwhile, on May 5, 2019, the Razzilian Government introduced a new bill in the Parliament
titled the Illegal Immigration Control Bill, 2019. Section 9 of the bill reinterpreted Article 31(1)
of the Refugee Convention in the sense that a refugee was not to be taken to come to Razzil
directly if they stopped in an intermediate country where they could have reasonably sought
protection. It considered the presence of such refugees as unlawful. Section 20 of the bill further
provided for penalising such refugees. Owing to this unfortunate turn of events against the
Nai’xan asylum-seekers, New Balanar, another eastern country exercised its erga omnes
obligations and brought an action against Razzil before the Regional Ishkafel Court of Human
Rights (“RICtHR”).
XVI
MEMORIAL ON BEHALF OF APPLICANT [ISSUES RAISED]
ISSUES RAISED
-I-
WHETHER THE DETENTION OF ASYLUM SEEKERS BY RAZZIL VIOLATES PRINCIPLES OF
INTERNATIONAL LAW?
- II -
WHETHER RAZZIL’S CLOSURE OF BORDERS IN LIGHT OF PUBLIC HEALTH CRISIS VIOLATES THE
PRINCIPLE OF NON-REFOULMENT?
- III -
WHETHER THE ILLEGAL IMMIGRATION CONTROL BILL, 2019 INTRODUCED BY RAZZIL
CONTRAVENES ARTICLE 31 OF THE REFUGEE CONVENTION AND RAZZIL’S OTHER OBLIGATIONS
UNDER INTERNATIONAL LAW?
- IV -
WHETHER THE COUNTRIES APART FROM RAZZIL IN THE ISHKAFEL UNION HAVE A DUTY TO
SHARE THE RESPONSIBILITY TO OFFER PROTECTION TO THE ASYLUM-SEEKERS AND ADDRESS
THE REFUGEE CRISIS?
XVII
MEMORIAL ON BEHALF OF APPLICANT [SUMMARY OF ARGUMENTS]
SUMMARY OF ARGUMENTS
-I-
The Applicant submits that the detention of asylum seekers by Razzil is in violation of
international law because the same was not authorised by domestic law. Further, even if the
same would have been authorised by law it was arbitrary as it was neither necessary nor
proportional to the deprivation of human rights that it has caused.
Further, the detention violates the right to life, liberty and security of the asylum
seekers. These rights are guaranteed under Article 2 and Article 5 of the ECHR to all people
irrespective of their immigration status. It is also submitted that the ancillary rights to right to
life such as right to food and right to housing were also compromised in the detention centre.
Moreover, the special circumstances of women and children in the detention centre were not
take care of and hence lead to a greater violation of right to life, liberty and security.
- II -
It is submitted that closure of borders by Razzil, in the light of sudden change in

circumstances is in violation of the non-refoulement principle. The same is because principle
of non-refoulement in and absolute right of the asylum seekers against torture. Further, the
states are also obligated to protect such people who are fleeing away from torture and
persecution in all circumstances under international law human rights framework.
Additionally, non-refoulment is a basic human right even in times of emergency as

States cannot derogate from their non-refoulement obligations even in cases of public health
emergencies. Non-refoulement in the times of emergency is endorsed by various global
organisations and Razzil’s policy of refoulement, hence, is in violation of such directions issued
by various international organisations.
- III -
Applicant submits that Razzil’s Illegal Immigration Control Bill, 2019 is in violation
of Article 31 of the Refugee Convention and Razzil’s obligations under International law
because both Section 9 and Section 20 of the said bill are inconsistent with Razzil’s obligations
under internal law and the refugee Convention. The said provisions not only narrow down the
scope of Article 31 of the Refugee Convention but also are against the fundamental principles
XVIII
MEMORIAL ON BEHALF OF APPLICANT [SUMMARY OF ARGUMENTS]
on which the Refugee Convention is based, such as international cooperation and creation of
new penal offences.
- IV -
It is submitted that the countries apart from Razzil in the Ishkafel Union do not have an
obligation to share the burden of the Nai’xan asylum seekers coming to Razzil. Razzil,
therefore, cannot enforce such a duty because it has responsibility to not transfer any asylum
seekers to any such country where there is risk of refoulement or violation of the human rights
guaranteed in the ECHR. Further, the Nai’xans had not applied for international protection in
either Britannia or Wadia. Additionally, Razzil is obligated to grant asylum to the fleeing
Nai’xans on humanitarian grounds.
XIX
MEMORIAL ON BEHALF OF APPLICANT [ARGUMENTS ADVANCED]
ARGUMENTS ADVANCED
ISSUE I: THE DETENTION OF ASYLUM-SEEKERS BY RAZZIL VIOLATES

PRINCIPLES OF INTERNATIONAL LAW
The Detention of asylum seekers violates principles of international law because the detention
of the asylum seekers was unlawful [A.] and the same was in violation of right to life, liberty
and security of the asylum seekers [B.].
THE DETENTION OF ASYLUM SEEKERS WAS UNLAWFUL
Detention of asylum seekers is unlawful as it violates the principles of international law

because firstly, detention was not authorised by law [1.], and secondly, detention was arbitrary
[2.].
1. DETENTION WAS NOT AUTHORISED BY LAW
Article 3 of the Human Rights Act is key in protecting asylum seekers if they face the risk of
torture, harm or death.3 Any deprivation of liberty not in conformity with national law is
unlawful under international law.4 In the present instance, Razzil can only detain an illegal
entrant if there are reasonable grounds for suspecting that a person is someone in respect of
whom directions may be given5 and the same has to be for a reasonable period of time and only
if there is a realistic possibility of removal.6
Although national legislation is the primary consideration for determining the lawfulness of
detention, it is not always the decisive element in assessing the justification of deprivation of
liberty.7 In particular, a specific factor that needs to be considered is the underlying purpose of
preventing persons being deprived of their liberty arbitrarily.8 The same is contended in the
subsequent sections.
2. DETENTION WAS ARBITRARY
3
Human Rights Act 1998, art 3.
4
Saadi v the United Kingdom App No 13229/03 (ECtHR, 29 January 2008).
5
Immigration Act 1971, schedule 2, para 16(2).
6
‘Enforcement Instructions and Guidance’ (UK Government)
<https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/307995/Cha
pter55.pdf> accessed 8 June 2022.
7
Lokpo and Touré v Hungary App No 10816/10 (ECtHR, 8 March 2012) [21].
8
ibid.
1
Any detention that is arbitrary is unlawful and violative of Article 5 of the ECHR.9
‘Arbitrariness’ is not to be equated only with ‘against the law’ but must be interpreted broadly
to include elements of inappropriateness, injustice and lack of predictability.10 This means that
detention must not only be lawful but reasonable in all the circumstances.11 Consequently,
Razzil’s detention of the asylum seekers is unlawful under international law because it is
unnecessary [a.] and disproportionate [b.].
a. It was not necessary
The detention of asylum seekers must be a measure of last resort, 12 and any detention which is
not necessary is unlawful under international law. 13 States are obligated to justify their use of
detention in each individual case14 by establishing that other lesser intrusive means of
achieving the said objective were unavailable.15
In the present case, detention was not used as the measure of last resort. There were other
alternative measures available, which were less intrusive, and could have been exercised before
detaining the asylum seekers. Such alternative measures include, community release, setting
up designated residences, electronic tagging, home curfew etc.16 For example, the United States
has announced its Alternative Detention program in 2004 which had used the system of
electronic tagging for the migrants whose cases were pending.17 Hence, detention in the present
case was not the measure of last resort.
b. It was not proportional
Proportionality requires that a balance be struck between the importance in a democratic

society of securing the immediate fulfilment of the obligation in question and the public policy
objectives of limiting or denying the right in question.18
9
Lutsenko v Ukraine App No 6492/11 (ECtHR, 3 June 2012).
10
Office of the High Commissioner, ‘About Arbitrary Detention’ (UNHCR) <https://www.ohchr.org/en/about-
arbitrary-detention> accessed 9 June 2022.
11
HRC, Van Alphen v The Netherlands (Communication No 305/1988) UN Doc CCPR/C/39/D/305/1988 [5.8].
12
UNHCR, ‘Guidelines on Detention’ (2012) <www.unhcr.org/publications/legal/505b10ee9/unhcr-detention-
guidelines.html> accessed 19 May 2022 [3].
13
HRC, A v Australia (Communication No 560/1993) UN Doc CCPR/C/59/D/560/1993.
14
I-ACmHR, ‘Human Rights of Migrants, International Standards and the Return Directive of the EU’
Resolution No 03/08 (25 July 2008).
15
Alice Edwards, ‘Back to Basics: The Right to Liberty and Security of Person and ‘Alternatives to Detention’
of Refugees, Asylum-Seekers, Stateless Persons and Other Migrants’ (Legal and Protection Policies Research
Series, UNHCR, April 2011) <https://www.unhcr.org/4dc949c49.pdf> accessed 1 June 2022.
16
UNHCR, ‘Detention Guidelines’ <https://www.refworld.org/pdfid/503489533b8.pdf> accessed 2 June 2022.
17
American Immigration Lawyers Association, ‘ICE Announces Alternative Detention Program’ (18 June
2004) <www.aila.org/infonet/ice-announces-alternative-detention-program> accessed 9 June 2022.
18
Vasileva v Denmark App No 52792/99 (ECtHR, 25 September 2003) [37].
2
In this context, it has been held disproportionate to continue to detain someone where there is
no ‘real and tangible’19 or ‘reasonably foreseeable’20 prospect of removal. The inability to
return the individual may be for any reason, such as statelessness,21 risk of torture,22 or because
the individual or country of origin refuses to cooperate with the return.23 There must be a
connection between the ground of permitted deprivation of liberty and the place and conditions
of detention.24
In the present instance, Nai’xans have been residing in Razzil peacefully. There is no proven
instance of them creating havoc, committing illegal activities, or doing anything which is
disturbing the public order of Razzil. Hence, the fatal living conditions they were subjected to
were disproportionate.
THE DETENTION OF ASYLUM SEEKERS IS IN VIOLATION OF RIGHT TO LIFE, LIBERTY AND

SECURITY
ECHR guarantees right to life,25 and liberty and security26 for everyone respectively. A state’s
discretion in controlling entry to its territory is subject to limits stemming from international
human rights guarantees.27 The right to liberty and security of person is a fundamental human
right28 and it applies to all human beings, regardless of immigration or other status.29
In Abdolkhani and Karimnia v. Turkey, it was held that the detention of refugees for three
months in the basement of police headquarters amounted to a violation of Article 3 of the
ECHR.30 In another case, A.A. v. Greece, in which a violation of Article 3 was found on
account of the detention of an asylum-seeker in squalid conditions in a Greek detention
19
Report of Working Group on Arbitrary Detention (n 8).
20
Al-Kateb v Godwin [2004] HCA 37.
21
Working Group on Arbitrary Detention ‘Opinion 45/2006’ UN Doc A/HRC/7/4/Add 1, [10].
22
A and Ors v Secretary of State for the Home Department [2004] UKHL 56.
23
Mikolenko v Estonia App No 10664/05 (ECtHR 8 January 2010).
24
Aerts v Belgium App No 25357/94 (ECtHR, 30 July 1998) [46]; Enhorn v Sweden App No 56529/00
(ECtHR,10 December 2002) [42].
25
Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human
Rights, as amended) (hereinafter, ‘ECHR’), art 2.
26
ECHR, art 5.
27
Nationality Decrees issued in Tunis and Morocco (Advisory Opinion) 1922 PCIJ Ser B No 2 [24]; A Edwards
and C Ferstman, ‘Humanizing Non-Citizens: The Convergence of Human Rights and Human Security’, in A.
Edwards and C. Ferstman (eds), Human Security and Non-Citizens: Law, Policy and International Affairs
(Cambridge: Cambridge University Press, 2010), ch 1.
28
Foucha v Louisiana 504 US 71 (1992) [80].
29
HRC, ‘General Comment No 18’ on Non-discrimination (11 October 1989) [1]; HRC, ‘General Comment No
15’ on The position of aliens under the Covenant [1].
30
Abdolkhani and Karimnia v Turkey (No 2) App No 30471/08 (ECtHR, 27 July 2010).
3
centre.31 Moreover, place and conditions of detention also violated right to life and liberty of
the asylum seekers.32
In the instant case, it was unimaginable for asylum seekers to have optimal quality of life with
liberty, equality and means to fulfil basic cultural, economic and social needs.33 As stated
above, there is barely any food and water for the people residing in the detention centre.34 There
is overcrowding in the dingey prisons of the detention centre.35 This is a cause of serious
concern considering the new virus that is spreading at a rapid speed in Razzil.36 Moreover, the
condition of women and children are equally terrible with them facing sexual atrocities.37
Right to life also includes right to food [1.], right to housing [2.].38 Furthermore, special
circumstances of children [3.] and women [4.] were not taken care of in the detention centre
which also amounted to infringement of their life liberty and security.
1. DEPRIVATION OF RIGHT TO FOOD
The human right to food obligates States to ensure that every asylum seeker has access to
nutritious food to maintain the physical health and physiological well-being.39 States have a
responsibility to fight diseases and malnutrition by providing adequate food, clothing, housing,
medical40 and social services facilities. 41 Further, in R v. Secretary of State,42 it was held that
the government’s policy of waiting until an asylum seeker’s destitution had reached the
standard of inhuman or degrading treatment before reinstating support was itself in breach of
Article 3 ECHR.
In the present case, there persisted abhorrent conditions in Razzil’s Abaddon Detention Centre.
It is reported that there is barely any food or water for all the immigrants and asylum seekers
31
AA v Greece App No 12186/08 (ECtHR, 22 July 2010).
32
Enhorn v Sweden App No 56529/00 (ECtHR, 10 December 2002) [42]; Muskhadzhiyeva et autres v Belgique
App No 41442/07, (ECtHR,19 January 2010) [69]-[75].
33
Michael Hass, International Human Rights: A Comprehensive Introduction 3 (2nd ed Routledge Taylor &
Francis group 2008).
34
Moot Proposition [38].
35
ibid.
36
37
38
HRC, ‘General Comment 36’ on Right to Life (3 September 2019) UN Doc CCPR/C/GC/35.
39
Andre Renzaho, ‘Human Right To Food Security In Refugee Settings: Rhetoric Versus Reality’ 47 Australian
Journal Of Human Rights 8(1) (2002).
40
Convention on Rights of Children, E/CN.4/RES/1990/74 (7 March 1990) art 24(2)(c) [hereinafter, CRC].
41
Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (hereinafter,
‘UDHR’), art 25(1).
42
R v Secretary of State for the Home Department ex parte Limbuela [2005] UKHL 66.
4
in the centre.43 Therefore, this is in blatant violation of right to food protected under
international law.
2. DEPRIVATION OF RIGHT TO HOUSING
Housing is a necessary social service promised to a human being for maintenance of a bare
minimum standard of living.44 Article 11(1) of ICESCR contemplates right to housing as a
necessary human right.45 The right to adequate housing46 is likely to be of particular relevance
to asylum seekers and migrants. Housing must be habitable, clean, providing sufficient space,
protecting against the elements and disease, and must be accessible to those entitled to it.47
In the present case, Razzil’s Abaddon Detention Centre houses over 2600 immigrants and
asylum seekers. The conditions inside the centre are so deplorable that as many as 15-20
individuals are stuffed into dingy prison cells that cannot accommodate more than 2 or 3
people.48 Further, it is also reported that people inside the detention centre are subjected to
extreme temperatures and are compelled to walk around naked.49 This, therefore, is in clear
violation of right to housing as enshrined in international law framework.
3. SPECIAL CIRCUMSTANCES OF CHILDREN
Minors who are asylum-seekers should not be detained.50 This requires that all possible
alternatives, including unconditional release, need to be considered prior to detention.51 In the
case of incarceration of children, detention must be conducted in accordance with the law,
during the briefest appropriate period and respecting the principles of exceptionality, temporal
determination and last resort.52 In Bakhityari v. Australia, the children had suffered
demonstrable, documented and on-going adverse effects of detention up until the point of their
43
Moot Proposition, [39].
44
UDHR, art 25(1).
45
International Covenant on Economic, Social and Cultural Rights, 16 December 1966, art 11(1) (hereinafter,
ICESCR].
46
UDHR, art 25(1).; Convention on the Elimination of All Forms of Discrimination Against Women, 18
December 1979, UNTS 34/180 art 14(2); CRC, art 27(3); UNGA Res 2542(XXIV), Habitat: United Nations
Conference on Human Settlements, A/RES/31/109 (16 Decemner 1976); 45th International Labour Conference,
‘Workers’ Housing Recommendation’ (28 June 1961).
47
European Roma Rights Centre (ERRC) v Greece Complaint No 15/2003 (ECSR, 8 December 2004) [24].
48
49
ibid.
50
UNHCR, Guidelines on Detention [6].
51
HRC, Bakhtiyari v. Australia Comm No 1069/2002 UN Doc CCPR/C/79/D/1069/2002.
52
Special Rapporteur on the Human Rights of Migrants, Mr. Jorge Bustamante, Annual Report to the 11th
Session of the Human Rights Council, UN Doc A/HRC/11/7, 14 May 2009 [43]; United Nations Rules for the
Protection of Juveniles Deprived of their Liberty (1990), rr 1, 2; Standard Minimum Rules for the
Administration of Juvenile Justice (the Beijing Rules) (1985), r 17(b); UNHCR, Refugee Children: Guidelines
on Protection and Care (1994), ch 7.
5
release and as a result, the HRC concluded that their detention had not been guided by the best
interests of the child.53
In the present case too, the children are subjected to appalling situations where they do not have
sufficient nutritious food or clean drinking water. Children usually have weaker immune
systems,54 and situations like these are in violation of international law. Moreover, there is
overcrowding of prison cells which makes the bad situation worse. Therefore, compelling
children to live in such detention centres is in violation of their rights.
4. SPECIAL CIRCUMSTANCES OF WOMEN
Special requirements and conditions unique to women asylum seekers were not taken care of,
which led to the deprivation of right to life, liberty and security of women. In the present case,
women have been subjected sexual violence in the detention centre.55
The same is in violation of international law as all states are required to take appropriate
measures to guarantee that women and girls are protected from violence or threats to their
physical safety or exposure to sexual abuse or harassment in the detention centres.56
Although detention was an avoidable pursuit in the present instance, however, where detention
is unavoidable for women asylum-seekers, facilities and materials are required to meet
women’s specific hygiene needs.57 It is also required that the use of female guards and warders
should be promoted.58 Further, all staff assigned to work with women detainees should receive
training relating to the gender-specific needs and human rights of women.59 Furthermore, as a
general rule, detention of pregnant women and nursing mothers, who both have special needs,
should be avoided.60 Considering that women have been sexually exploited, possibility of them
getting/being pregnant cannot be discounted. Therefore, the same has caused a violation of
their life, liberty and security.
53
HRC, Ali Aqsar Bakhtiyari and Roqaiha Bakhtiyari v. Australia, Communication No 1069/2002 UN Doc
CCPR/C/79/D/1069/2002.
54
Simon, A Katharina et al “Evolution of The Immune System in Humans from Infancy to Old Age” (National
Library of Medicine, 22 December 2015) <www.ncbi.nlm.nih.gov/pmc/articles/PMC4707740/> accessed 9 June
2022.
55
56
Executive Committee Conclusion No 39 (XXXVI) on Refugee Women and International Protection.
57
UN, ‘Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders (the
Bangkok Rules)’ A/C3/65/L5 (6 October 2010) r 5.
58
ibid, r 19.
59
ibid, r 33(1).
60
UNHCR, Guidelines on Detention, guideline 8.
6
ISSUE II: RAZZIL’S CLOSURE OF BORDERS IN LIGHT OF A PUBLIC

HEALTH CRISIS VIOLATES THE PRINCIPLE OF NON-REFOULEMENT
Closure of borders by Razzil in any circumstances violates the Principle of Non- Refoulment.
The applicant would contend this on the following heads: firstly Principle of Non Refoulment
is an absolute right against torture [A.], secondly, it is protected under the Human Rights Law
[B.], and thirdly Non-refoulment is a right even in times of emergency [C.].
A. PRINCIPLE OF NON-REFOULMENT IS AN ABSOLUTE RIGHT AGAINST TORTURE
Under the International human rights law, the principle of non-refoulement guarantees that no
one should be returned to a country where they would face torture, cruel, inhuman or degrading
treatment or punishment and other irreparable harm.
This principle applies to all migrants at all times, irrespective of migration status. Under
international human rights law the prohibition of refoulement is explicitly included in the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(CAT) and the International Convention for the Protection of All Persons from Enforced
Disappearance (ICPPED).
The principle of non-refoulment is read with Article 3 of the ECHR which prohibits extradition,
expulsion and deportation of individuals does not permit any exception. In Chahal v. United
Kingdom61 and D v. United Kingdom62 derogation even where there is a public emergency and
protection under the principle of non- refoulement is considered absolute and unqualified.
Non-refoulement is a fundamental principle of international refugee law and international

human rights law, which places an obligation on States to not expel or return a refugee to a
place where they face persecution. This principle is enshrined not only under Article 33(1) of
the Refugee Convention but also Article 663 and 764 of the ICCPR. States have often tried to
evade this obligation by insisting that it only extends to refugees within the territory of the
State.
61
Chahal v United Kingdom (1996) 23 EHRR 413.
62
D v United Kingdom (1997) 24 EHRR 423.
63
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March
1976) 999 UNTS 171 (hereinafter, ‘ICCPR’), art 6
64
ICCPR, art 7.
7
In the present case, Razzil was trying to deport migrants to the place where they were inherently
facing torturous practices and inhumane behaviour.
This principle enshrined in Article 33 of the 1951 Convention65, which is also binding on States
Party to the 1967 Protocol66. Article 33(1) 67
of the 1951 Convention provides that no
Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the
frontiers of territories where his [or her] life or freedom would be threatened on account of his
[or her] race, religion, nationality, membership of a particular social group or political opinion.
European Court of Human Rights has found that the principle of non-refoulement applies if a
person is not individually targeted, but where the threat comes from ‘the most extreme cases
of general violence, where there is a real risk of ill-treatment [or violations of the right to life]
simply by virtue of an individual being exposed to such violence on return.68
It is important to note that the Nai’xans were facing violence and ill-treatment in Alanor, to
escape which they were trying to take refuge with Razzil.69
States have a legal obligation under International Human Rights Law to respond to the
protection needs of migrants, including a particular duty of care to migrants in vulnerable
situations.70 A human rights-based approach to migration governance that include the
following actions could have been alternatively used by Razzil to fulfil the obligations:
1. Identification and assessment of protection needs. States should put in place mechanisms
71
and allocate resources to ensure that the IHRL protection needs of all migrants can be
assessed individually and with due process, as a complement to asylum determination
mechanisms. This should include the specific protections owing to migrants in vulnerable
situations, for example: migrants at risk of torture or irreparable harm requiring protection from
refoulement;
65
Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189
UNTS 137 (hereinafter, ‘Refugee Convention’) art 33.
66
Protocol Relating to the Status of Refugees (adopted 31 January 1967, entered into force 4 October 1967) 606
UNTS 267 (Protocol).
67
Refugee Convention 1951, art 33(1).
68
NA v United Kingdom Application No 25904/07 (ECtHR, 6 August 2008) [115].
69
70
Office of Human Rights Commissioner HRC, ‘The Principle of Non-Refoulment’ (United Nations Human
Rights Commissioner, 2020)
<https://www.ohchr.org/sites/default/files/Documents/Issues/Migration/GlobalCompactMigration/ThePrinciple
Non-RefoulementUnderInternationalHumanRightsLaw.pdf> accessed 10 June 2022.
71
CAT, General Comment No 4 (2017) on the Implementation of Article 3 Of the Convention in The Context
Of Article 22 [13].
8
The Convention on the Rights of the Child requires States to establish mechanisms for the
“robust individual assessment and determination of the best-interests of the child72 before any
decision is taken to return a child73, in order to ensure the child’s proper care and enjoyment of
rights. The Special Rapporteur on Torture has recommended States establish mechanisms to
identify victims of torture “through adequate screening” and independent medical evaluation.74
Peru’s migration law incorporates non-refoulement under IHRL by granting residency to

“foreigners in the country, who do not qualify for asylum or refugee status, [but] who face a
life-threatening situation or one of great vulnerability in the event that they leave Peru.” 75
2. Mechanisms for entry and stay based on human rights protection grounds. States should
establish mechanisms76 for entry and stay for those migrants who are considered to have
protection needs prohibiting their return under IHRL77, including where based on non-
refoulement, as well as, inter alia, the rights to health, family life, best interests of the child,
and torture rehabilitation. Such mechanisms could include administrative and legislative
78
mechanisms to grant legal status to migrants who cannot return, states should therefore
develop or strengthen discretionary mechanisms for entry and stay based on a migrant’s
individual circumstances including practical reasons79.
States’ non-refoulement obligations with respect to refugees are also found in regional treaties
of Africa 80 and America.81
72
CRC, art 11.
73
UNHCR, ‘Emergency Handbook’ <https://emergency.unhcr.org/entry/44308/best-interests-procedure>
accessed 11 June 2022.
74
UNHRC, ‘Report of the Special Rapporteur on Torture’ A/HRC/37/50 (26 February 2018).
75
Legislative Decree No 1350 of 2017 (Peru).
76
UNHRC, ‘Report of the Special Rapporteur on Torture’ A/HRC/37/50 (26 February 2018) [40].
77
CAT, ‘General Comment No 4’ on the Implementation of Article 3 Of the Convention in The Context of
Article 22(2017) [22].
78
Office of the High Commissioner, ‘Recommended Principles and Guidelines on Human Rights at
International Borders’ (UNHRC)
<https://www.ohchr.org/sites/default/files/Documents/Issues/Migration/OHCHR_Recommended_Principles_Gu
idelines.pdf> accessed 10 June 2022.
79
Legislative Decree 286/1998 (Italy) art 19(1).
80
OAU, Convention Governing Specific Aspects of Refugee Problems in Africa 1001 UNTS 45 (entered into
force 20 June 1974).
81
Organization of American States, ‘American Convention on Human Rights, "Pact of San Jose", Costa Rica’
(enacted 22 November 1969, entered into force 18 July 1978) (hereinafter, ‘Inter-American Convention on
Human Rights’).
9
The prohibition of refoulement has been interpreted by some courts and international human
rights mechanisms to apply to a range of serious human rights violations82, including torture,
and other cruel, inhuman or degrading treatment, flagrant denial of the right to a fair trial83,
serious forms of sexual and gender-based violence, death penalty or death row , female genital
mutilation , or prolonged solitary confinement , among others.
Within the framework of the 1951 Convention/1967 Protocol, the principle of non-refoulement
constitutes an essential and non-derogable component of international refugee protection. The
central importance of the obligation not to return a refugee to a risk of persecution is reflected
in Article 42(1) of the 1951 Convention and Article VII(1) of the 1967 Protocol, The General
Assembly has called upon States to respect the fundamental principle of non-refoulement,
which is not subject to derogation.
1. UNDER INTERNATIONAL CUSTOMARY LAW
The Statute of the International Court of Justice lists “international custom, as evidence of a
general practice accepted as law”, as one of the sources of law which it applies when deciding
84
disputes in accordance with international law. For a rule to become part of customary
international law, two elements are required: consistent State practice and opinio juris85, that
is, the understanding held by States that the practice at issue is obligatory due to the existence
of a rule requiring it. UNHCR is of the view that the prohibition of refoulement of refugees, as
enshrined in Article 33 of the 1951 Convention and complemented by non-refoulement
obligations under international human rights law, satisfies these criteria and constitutes a rule
of customary international law.
82
B Çalı, C Costello, S Cunningham ‘Hard Protection through Soft Courts? Non-Refoulement before the United
Nations Treaty Bodies’ (2020) German Law Journal 21(3).
83
Othman (Abu Qatada) v United Kingdom App No 8139/09 (ECtHR, 17 January 2012) [235, 258].
84
Statute of the International Court of Justice, art 38(1)(b).
85
Hugh Kindred, International Law, Chiefly as Interpreted and Applied in Canada, (Toronto: Emond
Montgomery 2000, 6th ed) [130].
10
Moreover, exercising its supervisory function, UNHCR has closely followed the practice of
Governments in relation to the application of the principle of non-refoulement86, both by States
Party to the 1951 Convention and/or 1967 Protocol and by States which have not adhered to
either instrument. In UNHCR’s experience, States have overwhelmingly indicated 87 that they
accept the principle of non-refoulement as binding, as demonstrated, inter alia, in numerous
instances where States have responded to UNHCR’s representations by providing explanations
or justifications of cases of actual or intended refoulement, thus implicitly confirming their
acceptance of the principle.
In the present scenario, there is no viable justification for deportation as given by the authorities
of Razzil and hence, they have clearly violated an absolute jus cogens right of the migrants,
B. PROTECTION UNDER HUMAN RIGHTS LAW
International Human Rights Law provides an important protection framework applying equally
to all migrants and protects all civil, political, economic, social and cultural rights under the
two Covenants, including a number of universally binding and non-derogable norms such as
the principle of non-refoulement. IHRL therefore establishes obligations which States are
bound to respect, protect and fulfil including, in some cases, protection from return.
The migrants currently fleeing Alanor faces acute economic crises, or lacking access to
fundamental rights such as health, education or family; migrants facing abuse, violence and
exploitation as they move and stay; and migrants seeking protection from other serious human
rights violations.
States further have a legal obligation under IHRL to respond to the protection needs of
migrants88, including a particular duty of care to migrants in vulnerable situations.89
86
UNHCR, ‘Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the
1951 Convention relating to the Status of Refugees and its 1967 Protocol’ (26 January 2007)
<www.refworld.org/docid/45f17a1a4.html> accessed 9 June 2022 [11].
87
Joshua Malidzo Nyawa, ‘The Principle of Non-Refoulment; An Inherent Obligation on A State’ (14 October
2017) <https://joshuamalidzonyawa.wordpress.com/2017/10/14/the-principle-of-non-refoulment-an-inherent-
obligation-on-a-state/> accessed 26 May 2022.
88
Helen Obregón Gieseken, ‘The Protection of Migrants Under International Humanitarian Law’ (2017)
International Review of the Red Cross 99 [121-152].
89
OECD, ‘The Impact of Coronavirus (COVID-19) On Forcibly Displaced Persons in Developing Countries
OECD’ (15 June 2020) <www.oecd.org/coronavirus/policy-responses/the-impact-of-coronavirus-covid-19-on-
forcibly-displaced-persons-in-developing-countries-88ad26de/> accessed 29 May 2022.
11
In M.L. And Others v. Russia90, The Court took consideration of the matter that human rights
are violated in North Korea and decided the admissibility and just satisfaction of the case. It is
understood that a state cannot send the parties to another state where human rights are violated
even doing the exception of the non-refoulment.
1. SCOPE OF NON REFOULMENT
The prohibition of refoulement under IHRL applies to any form of removal or transfer of
persons, regardless of their status, where there are substantial grounds for believing that the
returnee would be at risk of irreparable harm upon return on account of torture91, ill-treatment
or other serious breaches of human rights obligations. In this respect, the scope of this principle
under relevant human rights law treaties is broader than that contained in international refugee
law.92 The prohibition applies to all persons, irrespective of their citizenship, nationality,
statelessness, or migration status, and it applies wherever a State exercises jurisdiction or
effective control, even when outside of that State’s territory.93
An explicit non-refoulement provision is contained in Article 394 of the 1984 Convention

Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which
prohibits the removal of a person to a country where there are substantial grounds for believing
that he or she would be in danger of being subjected to torture.95 Therefore, Razzil has
derogated from it obligations under IHRL.
C. NON-REFOULEMENT IN TIMES OF EMERGENCY
Non-refoulment is a basic human right even in times of emergency as States cannot derogate
from their non-refoulement obligations even in cases of public health emergencies. The
applicant would like to contend this on these facets; firstly, Alternatives Prescribed to denial of
Entry [1.] secondly, Against the interim guidelines of UNHRC with case studies [2.].
1. ALTERNATIVES PRESCRIBED TO DENIAL OF ENTRY
90
ML And Others v Russia App nos 25079/19 and 18570/19 (ECtHR, 6 April 2021).
91
HRC, C v Australia Comm No 900/1999 UN Doc CCPR/C/76/D; Paposhvili v Belgium App No 41738/10
(ECtHR 13 December 2016); IACtHR, Advisory Opinion OC-21/14 (19 August 2014) [229].
92
Amnesty International, ‘Human Rights Developments and Violations’ (1 October 1997)
<www.refworld.org/docid/3ae6a9bb0.html> accessed 11 June 2022.
93
Phil Orchard, Protecting the Internally Displaced: Rhetoric and Reality (Routledge, 2018).
94
United Nations, ‘Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or
Punishment’ (enacted 10 December 1984, entered into force26 July 1987) 1465 UNTS 85, art 3.
95
UNHCR, ‘Protection Training Manual for European Border and Entry Officials - 4. Identifying Protection
Needs in Group Arrivals’ <www.unhcr.org/publications/manuals/4d944f229/unhcr-protection-training-manual-
european-border-entry-officials-4-identifying.html> accessed 28 May 2022.
12
As per Article 53 of the VCLT, the realization of any right that bars the fulfilment of a jus
cogens norm is prohibited under international law. 96 Therefore, the jus cogens norm of non-
97
refoulement would override any right of sovereignty that States might enjoy under the UN
Charter and any obligation States might owe to their citizens or the international community to
prevent the international spread of disease.
In its Legal Considerations on the recent European Commission’s Guidelines98, the UNHCR
stressed that alternative solutions to denial of entry must be considered such as isolation or
quarantine to ‘enable authorities to manage the arrival of asylum-seekers in a safe and orderly
manner, while respecting the right to asylum and the principle of non-refoulement.’ This
recommendation is also in line with the provisions of EU asylum law. Article 13 of the
Reception Directive 99
establishes that ‘Member States may require medical screening for
applicants on public health grounds.’ This can be regarded as a specific measure compatible
with the Member States need to fight the pandemic.
Nonetheless, in no way does it allow derogation from the obligations established in Article
17(2) of the Reception Directive,100 requiring that Member States ensure that material reception
conditions provide an adequate standard of living for applicants, which guarantees their
subsistence and protects their physical and mental health.
Furthermore, it is necessary to prove the increased burden of the fulfilment of the objects and
purposes of the Refugee Convention since the obligation of non-refoulement under Article 33
of the refugee convention is hindered by a pandemic.101 The issue here concerns the threshold
of ‘excessively burdensome and unreasonable’ to fulfil the objects and purposes of the Refugee
Convention. To assess the threshold, the obligations under the Refugee Convention shall be
‘so radically transformed that the affected party can no longer be reasonably expected to fulfil
it.102
96
Vienna Convention on the Law of Treaties (United Nations) 1155 UNTS 331 (hereinafter, ‘VCLT’) art 53.
97
International Law Commission, ‘Peremptory Norms of General International Law (Jus cogens)’
<https://legal.un.org/ilc/guide/1_14.shtml> accessed 11 June 2022.
98
UNHCR, ‘Legal Considerations with Regard to The EU Commission’s Guidelines for Border Management
Measures to Protect Health and Ensure the Availability of Goods and Essential Services’ (18 March 2020)
<www.refworld.org/pdfid/5e7882484.pdf> accessed 27 May 2022.
99
European Parliament and Council, Directive 2013/33/Eu 2013, art 13.
100
European Parliament and Council, Directive 2013/33/Eu 2013, art 17.
101
Daniel Ghezelbash and Nikolas Feith Tan, ‘The End of the Right to Seek Asylum? COVID-19 and the Future
of Refugee Protection’ (2021) International Journal of Refugee Law.
102
Ruth Rubio-Marín, Human Rights and Immigration, (OUP 2014).
13
In Tineo Family v. Bolivia,103 the Inter-American Court of Human Rights articulated procedural
safeguards that States Parties must meet before they can expel or deport an asylum-seeker. The
State must allow an asylum-seeker an adequate and individualized analysis of their application,
must assesses that individual’s personal circumstances, and in the case of an unfavourable
decision must have the right to review before a competent authority.
2. AGAINST THE INTERIM GUIDELINES OF DIFFERENT GLOBAL ORGANISATIONS
The World Health Organization published Interim guidance for refugee and migrant health in
relation to COVID-19.104 Supporting the need for an international response to a pandemic like
situation, the UNHCR reminds states of their ordinary course obligations with regard to persons
seeking international protection and warns against sending such individuals “into “orbit” in
search of a State willing to accept them”.105
The ICRC, in its Note on the Protection of Migrants in light of the COVID-19 Pandemic,
ascertained that the opening of channels for asylum seekers towards international protection
should be guaranteed.106
The law on State responsibility has progressed in light of the ARSIWA adopted under United
Nations General Assembly Resolution.107 Article 2 of the ARSIWA provides the criteria to
determine the presence of an internationally wrongful act, which requires that the conduct: (a)
is attributable to the State under international law; and (b) constitutes a breach of an
international obligation. 108
a. Invoking Force Majeure
The respondents may invoke the principle of force majeure in the present scenario. However,
The ILC declared that force majeure is invokable to justify involuntary, or at least
103
Caso Familia Pacheco Tineo v Estado Plurinacional de Bolivia, IACtHR Series C No 272.
104
World Health Organization, ‘Interim Guidance for refugee and migrant health in relation to COVID-19 in
WHO European Union’ (25 March 2020) <www.euro.who.int/__data/assets/pdf_file/0008/434978/Interim-
guidance-refugee-and-migrant-health-COVID-19.pdf> accessed 13 June 2022.
105
Maurits Dolmans, Byron Spring et al, ‘UK: COVID-19: The Effect on Refugees’ (Cleary Gottlieb Steen &
Hamilton LLP, 4 May 2020) <www.mondaq.com/uk/government-measures/926878/covid-19-the-effect-on-
refugees> accessed 12 June 2022.
106
ICRC, ‘Note on the Protection of Migrants in the Face of the COVID-19 Pandemic’ (20 April 2020)
<www.icrc.org/en/download/file/117261/public_note_on_the_protection_of_migrants_in_the_face_of_the_covi
d-19_pandemic_08.04.2020.pdf> accessed 10 June 2022.
107
UN General Assembly, Responsibility of States For Internationally Wrongful Acts (28 January 2002) 56/83
(A/RES/56/83).
108
ibid, art 2.
14
unintentional, conduct. its involuntary element distinguishes force majeure from situations of
distress or necessity109. A circumstance of force majeure shall satisfy the following:
(a) act in question must be brought about by an irresistible force or an unforeseen event:
(b) beyond the control of the State concerned; and
(c) materially impossible in the circumstances to perform the obligation.
Even if we consider that the first facet of the satisfaction stands true at some point, the pandemic
was not beyond the control of the state as they could employ reasonable measures to screen,
distance and identify refugees on case to case basis and it was not materially impossible for the
state to perform its obligations mentioned under the refugee convention, UNHCR guidelines
and ARISWA. The International Health Regulation provides various measures under Article
31 encompassing medical examinations and possibly additional health measures, including
mandatory quarantine with public health observation.
In M.S.S. v. Belgium and Greece110, an asylum seeker initially from Afghanistan contested
Belgium’s verdict was returned the appellant to Greece where he first arrived. The Court held
that Belgium had dishonoured Article 3 of the Convention by sending the applicant to Greece
where the applicant was subject to derogatory living conditions.
Moreover, according to the case of Paposhvili v. Belgium111, even if a refugee has a serious
illness and if he was allowed to go back to his country of origin, he would have faced inhuman
derogatory treatment, the host state cannot return that person. Hence, obligation of ‘non-
refoulement’ is upheld in such a case as well. The Court reached similar conclusions other
cases including Soering v. UK 112where the right to not be refouled is considered absolute by
the European Court of Human Rights. Stating all that is above, Razzil has violated the Right
of Non-Refoulment by closing its borders for the oncoming refugees.
109
UNGA, Report of the International Law Commission (23 July 1999) UN Doc A/54/10.
110
MSS v Belgium and Greece [GC], App No 30696/09 (ECtHR, 21 January 2011).
111
Paposhvili v Belgium Application no 41738/10 (ECtHR, 13 December 2016).
112
Soering v United Kingdom Application No 14038/88 (ECtHR, 7 July 1989).
15
ISSUE III: THE IMMIGRATION CONTROL BILL, 2019 CONTRAVENES

ARTICLE 31 OF THE REFUGEE CONVENTION AND RAZZIL’S OTHER
OBLIGATIONS UNDER INTERNATIONAL LAW
The Immigration Control Bill, 2019 contravenes Article 31 of the Refugee Convention and
Razzil’s other obligations under International law as Section 9 of the Bill is in violation of
Razzil’s obligations [A.], and, Section 20 of the Bill is in violation of Razzil’s obligations [B.].
A. SECTION 9 OF THE BILL IS IN VIOLATION OF RAZZIL’S OBLIGATIONS
Section 9 of the Immigration Control Bill contravenes article 31 of the Refugee Convention,
the Refugee Protocol, 1967 and Razzil’s other obligations under international law as it unduly
narrows the proper scope of article 31 of refugee convention as a matter of international law
[1.], and it is inconsistent with the principle of international cooperation on which the refugee
system is premised [2.].
1. IT UNDULY NARROWS THE PROPER SCOPE OF ARTICLE 31 OF REFUGEE CONVENTION AS A

MATTER OF INTERNATIONAL LAW.
Article 31 of the VCLT sets out the general rule of interpretation. The overarching principle is
that a treaty has to be interpreted in good faith.113 The centrality of Article 31 to the purposes
and scheme of the 1951 Refugee Convention has to be borne in mind.114 On this, the UNHCR
has also observed that States may be deemed to lack good faith if they seek to avoid their
obligations under the Convention.
Following this interpretative approach, Article 31 of the Refugee Convention prohibits States
Parties from imposing penalties on such refugees who have entered their territory illegally,
while coming from a territory where their life or freedom was threatened. The phrase ‘coming
directly’ in Article 31(1) does not exclude passage through a “safe”, intermediate country or
mandates an asylum-seeker to claim asylum in the first safe country. 115
Since the 1951 Convention was drafted when air travel was inaccessible to most refugees,
travel by land and stopping in intermediate countries was inevitable. A simply, literal or a
113
VCLT, art 31(1); Malgosia Fitzmaurice, ‘The Practical Working of the Law of Treaties’ in Malcolm D Evans
(ed), International Law (4th edn, OUP 2014) 166, 179; Olivier Corten and Pierre Klein, The Vienna
Conventions on the Law of Treaties: A Commentary (OUP 2011) 807.
114
UNHCR, ‘Article 31 of the 1951 Convention Relating to the Status of Refugees’ (July 2017) PPLA/ 2017/01.
115
EXCOM Conclusion No 15 (XXX), Refugees without an Asylum Country, 1979.
16
geographical interpretation of “directly” would have undermined the application of Article

31(1)116. Thus, there is no as such requirement in international refugee law to seek protection
in the first “safe” country. As long as the persecuted refugees are still in flight and have not
sought protection elsewhere, the requirement of “coming directly” is satisfied.
The idea is that the “directness” of travel needs to be looked in the context in which such travel
takes place i.e., by circuitous routes, over land or by sea, with interruptions in intermediate
countries to, for example, to gather funds or seek ways to move forward. In recognition of the
complex nature of these journeys, reasonable periods of “transit” should be seen as distinct
from de facto settlement in an intermediary country and should not necessarily be regarded as
negating the “directness” of the journey.117
The provisions of the 1951 Convention, including Article 31, has to be interpreted generously
and purposively118, as has been held in its landmark judgment in Adimi, where the court in
United Kingdom introduced the following factors to interpret “coming directly”: 1) the length
of stay in the intermediate country; 2) the reason for the delay; 3) whether or not the refugee
sought or found protection de jure or de facto.119
Following an analysis of the travaux préparatoires120, the experts assembled by the UNHCR in
2001 also concluded that “the drafters of the Refugee Convention only intended that immunity
from penalty should not apply to refugees who found asylum, or were settled, temporarily or
permanently, in another country.”121 With the atrocities of World War 2 fresh in their mind,
the framers of the Convention wanted to protect those fleeing from persecution. They
recognised that refugees fleeing persecution would often be unable to observe the
administrative and legal formalities associated with movement between States.122 And hence,
116
UNHCR, ‘Guidance on Responding to Irregular Onward Movement of Refugees and Asylum-Seekers’
(September 2019) <www.refworld.org/pdfid/5d8a255d4.pdf> accessed 5 June 2022.
117
United Nations High Commissioner for Refugees ‘Observations on the New Plan for Immigration policy
statement of the Government of the United Kingdom’ (May 2021) <www.unhcr.org/uk/60950ed64.pdf>
accessed 11 June 2022 [13].
118
R (ST (Eritrea)) v Secretary of State for the Home Department [2012] 2 AC 135 [30].
119
R (Adimi) v Uxbridge Magistrates Court & Anr [2001] QB 667, 678.
120
Paul Weis, ‘The Refugee Convention, 1951: The Travaux Preparatoires’ (UNHCR)
<www.unhcr.org/protection/travaux/4ca34be29/refugee-convention-1951-travaux-preparatoires-analysed-
commentary-dr-paul.html> accessed 6 June 2022.
121
UNHCR, ‘“Summary of Conclusions” Refugee Protection in International Law’
<www.alnap.org/system/files/content/resource/files/summary/erd-2848-summary.pdf> accessed 28 May 2022
[255].
122
UNHCR, ‘Draft Report of the Ad hoc Committee on Statelessness and Related Problems; Proposed Draft
Convention relating to the Status of Refugees’ UN Doc E/AC.32.L.38 (15 February 1950).
17
wanted to ensure that this was no barrier to refugee status being recognised and to their being
afforded the full range of rights and protections afforded by the Convention.123
Earlier the Immigration and Asylum Act 1999 dealt with the issue and provided immunity to
applicants if they showed that they “could not reasonably have expected to be given
protection…. in that country”.124 But now, section 9 replaces the “coming directly” requirement
in the 1999 Act and removes such immunity if the applicant could reasonably be expected to
have “sought” protection. It interprets Article 31(1) of the Refugee Convention125 so as to it
only applies to individuals who can demonstrate that they could not reasonably have been
expected to have sought protection under the Refugee Convention in the country they stopped
in.
However, this new interpretation is inconsistent with Article 31(1) of the Convention as it
introduces a very narrow interpretation of what “coming directly” means. While misconstruing
the true meaning of Article 31, the Bill withdraws immunity for those who have failed to make
a claim “as soon as reasonably practicable”, including sur place refugees who failed to make a
claim before the expiry of their existing leave to remain. Therefore, this constitutes a unilateral
narrowing of the protection offered by Article 31.
2. IT IS INCONSISTENT WITH THE PRINCIPLE OF INTERNATIONAL COOPERATION ON WHICH THE

REFUGEE SYSTEM IS PREMISED.
The Note on International Solidarity and Refugee Protection under the sub-heading “Co-
operation between States - international solidarity” states that the drafters of the 1951
Convention explicitly envisaged international co-operation among States in the field of asylum
and resettlement. The Conference of Plenipotentiaries which completed the Convention, also
unanimously adopted the recommendation that the Governments shall continue to receive
refugees in their territories and act in the true spirit of international co-operation in order that
these refugees may find asylum and the possibility of resettlement”.126
123
Raza Husain et al, ‘Joint Opinion, Nationality and Borders Bill’ (Freedom from Torture, October 2021)
<www.freedomfromtorture.org/sites/default/files/2021-
10/Joint%20Opinion%2C%20Nationality%20and%20Borders%20Bill%2C%20October%202021.pdf> accessed
3 June 2022 [33].
124
Immigration and Asylum Act 1999.
125
Refugee Convention, art 31(1).
126
UN Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons (13th Meeting, 22
November 1951) A/CONF.2/SR.13 <www.refworld.org/docid/3ae68cdc8.html> accessed 30 May 2022].
18
The Preamble to the Convention does not put the burden of looking after the migrants solely
on neighbouring countries and instead specifically refers that the risk of the granting asylum
places an unduly heavy burden upon certain countries.127 There is no obligation under
international law for a person to seek international protection at the first effective opportunity128
and that the intentions of the asylum-seeker as regards the country in which he wishes to request
asylum should as far as possible be taken into account. An asylum should not be refused solely
on the ground that it could be sought from another State.’129
This idea of co-operation and solidarity has been further emphasized in the Global Compact on
Refugees130 to which Razzil is also a signatory. It emphasizes the fundamental principle of
international solidarity and seeks to operationalize the principles of burden- and responsibility-
sharing to better protect and assist refugees and support host countries and communities.
However as per the new interpretation of Article 31 of the Refugee Convention under section
9 of the bill, those refugees who have stopped in another country are to be precluded from
being granted protection in the Razzil and their presence is to be considered unlawful. 131 The
only possibility for seeking immunity from penalties is that the persons could not have
reasonably sought protection in that country.132 This assertion is based on a misunderstanding
of the Refugee Convention and the international law.
This reinterpretation of Article 31 of the Convention is a 180-degree change from the principle
of international solidarity. Making the requirement that the refugees have to claim asylum in
the first safe country they reach undermines the global, humanitarian, and cooperative
principles on which the whole refugee system is premised.133
127
Dr Ronan Cormacain, ‘Nationality and Borders Bill: A Rule of Law Analysis of Clauses 29 to 39’ (Bingham
Centre for the Rule of Law, 2022)
<https://binghamcentre.biicl.org/documents/136_nationality_and_border_bill_report_part_1.pdf> accessed 9
June 2022 [9].
128
UNHCR, ‘Summary Conclusions on the Concept of "Effective Protection" in the Context of Secondary
Movements of Refugees and Asylum-Seekers’ (February 2003)
<www.unhcr.org/protection/globalconsult/3e5f323d7/lisbon-expert-roundtable-summary-conclusions-concept-
effective-protection.html> accessed 6 June 2022.
129
EXCOM Conclusion No 15 (XXX) Refugees without an Asylum Country 1979, para. (h) (iv).
130
UNGA, ‘Global Compact on Refugees’ A/RES/73/151 (adopted 17 December 2018).
131
132
ibid.
133
UNHCR, ‘UNHCR Observations on the Nationality and Borders Bill’ (October 2021)
<www.unhcr.org/uk/615ff04d4.pdf> accessed 28 May 2022 [4].
19
B. SECTION 20 OF THE BILL IS IN VIOLATION OF RAZZIL’S OBLIGATIONS
Section 20 of the Immigration Control Bill contravenes article 31 of the Refugee Convention,
the Refugee Protocol, 1967 and Razzil’s other obligations under international law as it provides
for the penalisation of refugee is contrary to the basic rationale of Refugee convention. This is
because the bill relies on a fundamental misapplication of Article 31(1) of the Refugee
Convention which provides for non-penalisation of refugees [1.], and the Bill instead creates a
new criminal offence of knowingly arriving in Razzil without entry clearance [2.].
1. THE IMMIGRATION BILL, 2019 RELIES ON A FUNDAMENTAL MISAPPLICATION OF ARTICLE

31(1) OF THE REFUGEE CONVENTION.
Article 31(1) of the Refugee Convention explicitly envisages that refugees will often have to
resort to irregular methods to flee their country of persecution. To deal with this situation, it
specifically prohibits states from imposing penalties on refugees account of their illegal entry.
The non-penalisation of those arriving irregularly is central to the intent of the Convention and
forms a key part of the Convention’s commitment to access to asylum, without which the other
guarantees in the Convention would also be undermined.
Though, States have the legitimate right to control their borders and to address the smuggling
and trafficking of persons. Such border management must, however, remain consistent with
obligations under international law, including the right to seek and enjoy asylum and the
principle of non-refoulement.134
However, the bill misappropriates the application of Article 31(1) and creates a provision for
penalisation of such persons. It further provides for their imprisonment for a term of 12
months135. Therefore, the provision is entirely contrary to the spirit and purpose of the Refugee
Convention, more specifically to Article 31(1) which was intended to address the situation of
refugees who were often unable to secure the necessary authorisation to enter a country.
134
UNGA Res 55/25 ‘Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and
Children, Supplementing the United Nations Convention against Transnational Organised Crime’ (adopted 15
November 2000) art 14.
135
Moot proposition [43].
20
2. THE BILL FURTHER CREATES A NEW CRIMINAL OFFENCE OF KNOWINGLY ARRIVING IN

RAZZIL WITHOUT ENTRY CLEARANCE CONTRARY TO THE BASIC RATIONALE OF REFUGEE
CONVENTION.
Previously, the weight of the criminal law in Razzil was only applied to those persons who
unlawfully “entered” Razzil, and not to those who “arrived” in Razzil. These two concepts
though linked, still have some important differences. “Entry” under section 11 of the
Immigration Act 1971136 means disembarking and subsequently leaving the immigration
control area. Whereas “Arrival” is the stage directly before that, covering the person who has
physically landed in the UK, but has presented themselves to the authorities, and not yet passed
through immigration control.137
The courts have also summarised this distinction while observing, “It can be said a person
arriving at an airport or port with immigration facilities shall be deemed not to enter the United
Kingdom whilst waiting to pass through immigration or whilst detained, temporarily admitted
or released whilst liable to detention.”138
Sections 24 of the 1971 Act only created offences of illegally entering Razzil. Under Section
24(1)(a) of the Immigration Act 1971139, a person was deemed to commit a criminal offence
only if they knowingly entered Razzil in breach of a deportation order or without leave.
However, those who merely arrive in the Razzil and presented themselves at the border to claim
asylum committed no offence140 and could not be prosecuted.
The government’s new Bill under Section 20 instead enlarges the scope of immigration
offences by overriding Section 24(1)(a) of the Immigration Act 1971. It now not only provides
for penalisation of illegal entry but also creates a new offence of ‘unlawful arrival’ in Razzil
without a valid entry clearance. To get “entry clearance”, a person must be entitled to a visa
under one of the categories set out in the immigration rules. But those rules do not include a
136
Immigration Act 1971, s 11.
137
Dr Ronan Cormacain, ‘Nationality and Borders Bill: A Rule of Law Analysis of Clauses 29 to 39’ (2022)
Bingham Centre for the Rule of Law 16.
138
Kapoor and Ors v R [2012] 1 WLR 3569 [23].
139
Immigration Act 1971, s 11.
140
Aneurin Brewer, ‘An analysis of the Nationality and Border Bill’ (21 July 2021)
<www.lawgazette.co.uk/commentary-and-opinion/an-analysis-of-the-nationality-and-borders-
bill/5109298.article> accessed 21 May 2022.
21
category of “refugee” or “seeking asylum”. It is also not possible to claim asylum from overseas
as an asylum seeker must be present physically to make a protection claim.141
Therefore, the bill indirectly creates a situation where mere travel to Razzil by asylum-seekers
will be penalised regardless of their mode of travel and the circumstances they fled their
country. It also does not take into account that these asylum seekers may not be capacitated to
possess any other requisite knowledge or understanding making it almost impossible for them
to seek clearance or entry even in future.
This will mean that even if a person is a genuine refugee and had no other option, he will still
not be provided with any statutory defence. This injustice is particularly acute for sur place142
refugees who may never be able to fulfil the required criteria. Therefore, the bill improperly
targets asylum-seekers and contravenes the very basic purpose of the Refugee Convention for
which it was intended.
ISSUE IV: THE COUNTRIES APART FROM RAZZIL IN THE ISHKAFEL

UNION DO NOT HAVE A DUTY TO SHARE THE RESPONSIBILITY TO OFFER
PROTECTION TO THE ASYLUM-SEEKERS AND ADDRESS THE REFUGEE
CRISIS
A. RAZZIL HAS A RESPONSIBILITY TO NOT TRANSFER ASYLUM-SEEKERS IN STATES

WHERE THERE IS A RISK OF VIOLATION OF HUMAN RIGHTS
Razzil has a responsibility to ensure that it does not transfer the asylum seekers to another
Member State where there is a risk of violation of the human rights recognised under ECHR
or elsewhere [1.] and where there is a risk of deportation [2.]. 143
1. TREATMENT OF ASYLUM-SEEKERS IN BRITANNIA & WADIA VIOLATE HUMAN RIGHTS
In M.S.S. v Belgium and Greece,144 Belgium (sending state) had transferred the applicant to
Greece (receiving state) where there was a risk of violation of Articles 3 and 13 of ECHR.
141
Home Office, ‘Applications from Abroad: Policy’ (20 September 2011)
<https://www.gov.uk/government/collections/asylum-decision-making-guidance-asylum-instructions> accessed
25 May 2022.
142
UNHCR, ‘Handbook on Procedures and Criteria for Determining Refugee Status’
<www.unhcr.org/4d93528a9.pdf> accessed 25 May 2022 [95].
143
Lehte Roots, ‘Burden Sharing and Dublin Rules – Challenges of Relocation of Asylum Seekers’ 3(1) Athens
Law Journal [7-20].
144
MSS v Belgium and Greece [GC], Application No 30696/09 (ECtHR, 21 January 2011).
22
Hence, the ECtHR not only held Greece responsible for violation of the applicant’s rights but
also made Belgium (sending state) responsible for transferring the applicant to a state where
there ran a risk of violation of his rights.
In a Grand Chamber judgment of 21 December 2011,145 the CJEU had adopted a similar
position to that of in M.S.S. v. Belgium and Greece. A Dublin transfer is considered to be
unlawful if it exposes the applicant to a risk of a serious violation of the prohibition of inhuman
or degrading treatment under Article 3 ECHR and Article 4 of the Charter in the destination
country.146 The CJEU has further held that a Dublin transfer of applicant to another Member
State is inhuman and degrading if it exposes the person to a situation of extreme material
poverty that does not allow him to meet his most basic needs.147
In the present instance, both Britannia and Wadia are not a party to the Refugee Convention
and its 1967 Additional Protocol.148 Lives of asylum seekers in these countries are
deplorable.149 These countries have ad-hoc arrangements to process refugee claims, i.e., merely
internal policies and orders that govern the entire refugee framework.150 The asylum seekers
are living in camp settings which are built from straws, sticks and rocks.151 Further it was only
in the evening on January 18 (which was after a week), when both the countries sent about 300
packets of food items, 400 water bottles, and 50 medical kits for Nai’xans. No other food
articles and medicines were given to them for a week.152 Therefore, the asylum seekers are
neither legally protected nor they are physically in a secured and safe environment in these
countries.
2. BRITANNIA IS DEPORTING THE NAI’XANS
Razzil cannot transfer the asylum seekers to Britannia as there runs a risk of deportation of
Nai’xans. In T.I. v. the United Kingdom,153 it was held that a Member State cannot transfer
asylum seekers to another country where there lies a risk of deportation to the country of origin
from where the asylum seekers are fleeing due to fear of persecution. The Member state is
145
NS v Secretary of State for the Home Department and ME and Others v Refugee Applications Commissioner
& Minister for Justice, Equality and Law Reform [GC] C-411/10 and C-493/10 (21 December 2011) [88-91].
146
Abubacarr Jawo v Bundesrepublik Deutschland [GC], C-163/17 (19 March 2019).
147
ibid.
148
149
ibid.
150
Clarifications, [1].
151
152
153
TI v the United Kingdom Application no 43844/98 (ECtHR, 7 March 2000).
23
required to assess the situation in the destination country regarding access to the asylum
procedure and reception as well as the risk of chain refoulement. 154
Therefore, in the present instance, Razzil cannot transfer the burden of Nai’xans on Britannia,
specifically, because Britannia has already deported 27 Nai’xans back to Alanor. 155 Human
rights organizations and international media had reported their plight. All of the deported
Nai’xans were met with severe and inhumane custodial torture and the women were sexually
assaulted, before they were shot dead by the government agents. The ones who escaped the
government were targeted by local militia groups of majority clans.156
B. THE NAI’XANS DIDN’T APPLY FOR INTERNATIONAL PROTECTION IN BRITANNIA &

WADIA
Nai’xans had not made any application for international protection in Britannia & Wadia. The
same is implicit from the fact that they established “temporary” shelter camps in the eastern
portions of the two country.157 Moreover, they did not produce themselves before any
government authority in these countries for a week. It was only when the government
authorities which started prima facie assessing the refugee claims,158 and a total of 170 out of
800 Nai’xans produced themselves before the government authorities of the two countries. The
rest of the Nai’xans had left and walked to Razzil with the intention of applying as a refuge in
that country.159 Further, the exodus that later entered Razzil used the territory of Britannia and
Wadia to transit.160 There is nothing to show that any applications for international protection
was made.
According to Dublin Regulation III, withdrawal of an application for international protection

means the actions by which the applicant terminates the procedures initiated either explicitly
or tacitly.161 Therefore, it is to be noted that by leaving for Razzil the asylum seekers had
“tacitly” withdrawn their applications for international application, if at all it were made.
154
Asylum Information Database, ‘The implementation of the Dublin III Regulation in 2020’ (September 2021)
<https://asylumineurope.org/wp-content/uploads/2021/09/AIDA_Dublin-Update-2020.pdf > accessed 3 June
2022.
155
156
ibid.
157
158
159
160
161
Dublin Regulation III, art 2(e).
24
C. RAZZIL IS REQUIRED TO GRANT ASYLUM ON HUMANITARIAN GROUNDS
CJEU, in a case has held that the Dublin Regulation had to be implemented in conformity with
Charter rights, and said that in the absence of other responsible States – the United Kingdom
and Ireland were obliged to examine the asylum claims, despite the fact that the applicants had
lodged their asylum claims in Greece.162
In K. case,163 the transfer was proposed from Austria to Poland of a woman whose daughter-
in-law had a new-born baby. The daughter-in-law was suffering from serious illness and
a disability. If what happened to her were to become known, the daughter-in-law would
probably be at risk of violent treatment by male family members on account of cultural
traditions. Hence, the CJEU held that where the conditions stated in in Article 16(1) of the
Regulation are satisfied, the Member State, on the humanitarian grounds referred to in that
provision, is obliged to take charge of an asylum seeker.
Hence, considering the deplorable situation that asylum seekers will be faced with not only in
Britannia and Wadia but also in their country of origin - Alanor, where they face a risk of being
deported, Razzil has a responsibility to grant asylum to them on humanitarian grounds.
162
NS v Secretary of State for the Home Department and ME and Others v Refugee Applications Commissioner
& Minister for Justice, Equality and Law Reform [GC] C-411/10 and C-493/10 (21 December 2011);
Bundesrepublik Deutschland v Kaveh Puid, C-4/11 (14 November 2013).
163
K v Bundesasylamt [GC], C-245/11 (6 November 2012).
25
MEMORIAL ON BEHALF OF APPLICANT [PRAYER]
PRAYER
For reasons stated above, the Applicant hereby requests the Court to adjudge and declare
that:
-I-
THE DETENTION OF ASYLUM SEEKERS BY RAZZIL VIOLATES PRINCIPLES OF INTERNATIONAL
LAW.
- II -
RAZZIL’S CLOSURE OF BORDERS IN LIGHT OF PUBLIC HEALTH CRISIS VIOLATES THE PRINCIPLE
OF NON-REFOULMENT.
- III -
THE ILLEGAL IMMIGRATION CONTROL BILL, 2019 INTRODUCED BY RAZZIL CONTRAVENES
ARTICLE 31 OF THE REFUGEE CONVENTION AND RAZZIL’S OTHER OBLIGATIONS UNDER
INTERNATIONAL LAW.
- IV -
THE COUNTRIES APART FROM RAZZIL IN THE ISHKAFEL UNION DO NOT HAVE A DUTY TO SHARE
THE RESPONSIBILITY TO OFFER PROTECTION TO THE ASYLUM-SEEKERS AND ADDRESS THE
REFUGEE CRISIS.
Respectfully submitted,
AGENTS FOR THE APPLICANT
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11A

REGIONAL ISHKAFEL COURT OF HUMAN RIGHTS

NALSAR UNHCR PUBLIC INTERNATIONAL LAW

THE DEMOCRATIC REPUBLIC OF NEW BALANAR

THE FEDERATION OF RAZZIL

MEMORIAL FOR APPLICANT

TABLE OF CONTENTS .......................................................................................................... II

LIST OF ABBREVIATIONS ................................................................................................. IV

STATEMENT OF JURISDICTION.................................................................................... XIII

SUMMARY OF FACTS ..................................................................................................... XIV

ISSUES RAISED ................................................................................................................ XVII

SUMMARY OF ARGUMENTS ...................................................................................... XVIII

ARGUMENTS ADVANCED ................................................................................................... 1

ISSUE I:THE DETENTION OF ASYLUM-SEEKERS BY RAZZIL VIOLATES

A. The Detention Of Asylum Seekers Was Unlawful ..................................................... 1

B. The Detention Of Asylum Seekers Is In Violation Of Right To Life, Liberty And

ISSUE II:RAZZIL’S CLOSURE OF BORDERS IN LIGHT OF A PUBLIC HEALTH

A. Principle of Non-Refoulment is an absolute right against torture ............................... 7

B. Protection Under Human Rights Law .......................................................................... 11

C. Non-Refoulement in times of Emergency ................................................................. 12

ISSUE III:THE IMMIGRATION CONTROL BILL, 2019 CONTRAVENES

A. Section 9 of the bill is in violation of Razzil’s obligations.......................................... 16

B. Section 20 of the bill is in violation of Razzil’s obligations ....................................... 20

ISSUE IV:THE COUNTRIES APART FROM RAZZIL IN THE ISHKAFEL UNION

PROTECTION TO THE ASYLUM-SEEKERS AND ADDRESS THE REFUGEE

A. Razzil Has A Responsibility To Not Transfer Asylum-Seekers In States Where There

C. Razzil Is Required To Grant Asylum On Humanitarian Grounds ............................ 25

Sr. No. Abbreviation Expansion

AA v Greece App No 12186/08 (ECtHR, 22 July 2010) ......................................................... 13

Treaties and Conventions

Convention on Rights of Children, E/CN.4/RES/1990/74 (7 March 1990). ........................... 13

Human Rights Act 1998, art 3. ................................................................................................ 10

CAT, ‘General Comment No 4’ on the Implementation of Article 3 Of the Convention in The

UNHCR, ‘“Summary of Conclusions” Refugee Protection in International Law’

UNHCR, ‘Summary Conclusions on the Concept of "Effective Protection" in the Context of

A Edwards and C Ferstman, ‘Humanizing Non-Citizens: The Convergence of Human Rights

‘Enforcement Instructions and Guidance’ (UK Government)

Other Cases of Different Jurisdictions

[THE ISHKAFEL CONTINENT]

[NAI’XANS: A MINORITY IN ALANOR]

[THE FLEEING OF NAI’XANS FROM ALANOR]

[DETENTION OF ASYLUM SEEKERS BY RAZZIL]

[THE DISPUTE RELATING TO ASYLUM SHARING RESPONSIBILITY]

[PUBLIC HEALTH CRISIS IN RAZZIL]

[THE ILLEGAL IMMIGRATION CONTROL BILL]

UNDER INTERNATIONAL LAW?

THE REFUGEE CRISIS?

It is submitted that closure of borders by Razzil, in the light of sudden change in

Additionally, non-refoulment is a basic human right even in times of emergency as

ISSUE I: THE DETENTION OF ASYLUM-SEEKERS BY RAZZIL VIOLATES

THE DETENTION OF ASYLUM SEEKERS WAS UNLAWFUL

Detention of asylum seekers is unlawful as it violates the principles of international law

1. DETENTION WAS NOT AUTHORISED BY LAW

2. DETENTION WAS ARBITRARY

a. It was not necessary

b. It was not proportional

Proportionality requires that a balance be struck between the importance in a democratic

THE DETENTION OF ASYLUM SEEKERS IS IN VIOLATION OF RIGHT TO LIFE, LIBERTY AND

1. DEPRIVATION OF RIGHT TO FOOD