Non-refoulement in judicial hands: weighing the stance of the UK Supreme Court vis-à-vis the Indian Supreme Court

When a six-page interim order by the Indian Supreme Court displayed inhumanity in sending Rohingyas to Myanmar, where human rights violations are still ongoing, a 56-page judgment paved the way for a new era of refugee jurisprudence based strongly on the human rights of refugees. 

This blog intends to revisit the interim order of the Indian Supreme Court in Mohammed Salimullah v Union of India in light of the recent judgement of the United Kingdom Supreme Court (UKSC) in R (AAA) v. Secretary of State Home Dept. This reflection on refugee jurisprudence matters as it addresses the role of domestic courts in protecting refugees from refoulement and possible re-persecution. The blog argues that the UKSC decision ought to have a persuasive effect on the Indian Supreme Court, as both cases dealt with the principle of non-refoulement.

In R (AAA) v. SSHD, the UKSC gave a well-reasoned decision upholding the Court of Appeal’s judgement that the UK Government’s Rwanda policy is unlawful due to the real risk of refoulement. The Rwanda Policy was introduced to facilitate third-country asylum processing. This means that any asylum claim made in the UK could be decided in a safe third country, and should Rwanda be considered ‘safe’, an individual claimant could be sent to Rwanda for a decision on their claim. Interestingly, the UKSC categorically held that any removal to Rwanda would violate the Human Rights Act 1998 and the European Convention on Human Rights 1950 unless the deficiencies in the Rwanda policy were addressed.

Conversely, in Mohammed Salimullah v Union of India, the Indian Supreme Court refused to quash the deportation of Rohingya refugees to Myanmar. The case was filed as a writ petition before the Indian Supreme Court by two Rohingya refugees in fear of deportation, considering the Government's directions to deport refugees in the guise of illegal migrants. During the pendency of the case, an interim application was filed to prevent deportation, which was rejected by the Supreme Court, relying on the ground that the procedure prescribed by law for deportation needed to be followed. The Indian Supreme Court neither held the impugned order unlawful nor conducted a fact-sensitive evaluation of Myanmar's current state of affairs. Instead, the Indian Supreme Court justified the Indian Government’s approach to refugees, as there is neither a domestic refugee law nor an obligation under the Refugee Convention per se. The Court failed to consider the intervention application filed by the UN Special Rapporteur. It did not consider the application of non-refoulement despite being a customary principle of international law.

Having identified these lacunae in the Indian Supreme Court order, I will compare the two decisions to reflect upon the possible areas of improvement to make the final order more refugee-centric. First, the UKSC declared the policy unlawful based on Rwanda’s poor human rights record, previously criticised by the UK in 2021 for extrajudicial killings, poor media and political freedom, and Rwanda’s previous failure to uphold non-refoulement in a similar agreement with Israel in 2018. However, the Indian SC was reluctant to consider the human rights violations in Myanmar, including general human rights situation, laws, practices, and monitoring mechanisms.

Second, the Indian Supreme Court erred by refraining itself from commenting on the happenings in Myanmar, by not taking due consideration of the statement submitted by UNOHCHR, the practical experience of UNHCR working with Myanmar, and the judgment of the International Court of Justice in The Gambia v Myanmar decision. However, the UKSC adequately considered the UNHCR intervention in the case. The UKSC gave due consideration to UNHCR’s evidence as it has long years of engagement with the Rwandan asylum system, and the Rwandan Government depends on UNHCR for refugee processing.

Third, the UKSC considered non-refoulement to be a binding obligation on the government as it is a core principle of international law. The UK was a party to the 1951 Refugee Convention, while the Indian Supreme Court was reluctant to uphold the principle of nonrefoulement for Rohingya refugees and gave no progressive interpretation to constitutional provisions which would have protected Rohingyas from refoulement.

Since the final order in the case is still pending, I suggest that the court still consider the relevant points I have raised here, especially the functioning of the legal system in the receiving state. They could also incorporate interpretative techniques to engage with international law, deviating from the strict dualist school of international law and thereby crystallising customary international law to prevent re-persecution.

In this regard, I believe the UK decision has a persuasive impact on the Indian Supreme Court, having the same subject matter of concern. Moreover, the legacy of the colonial relationship still continues to influence the legal system, with India relying on common law principles in many legal scenarios. Additionally, this historic decision needs to be replicated as the human rights of the most vulnerable are respected.

The UKSC decision was a significant milestone as far as global refugee jurisprudence is concerned. It nips in the bud the UK Govt’s narrow mindset, xenophobic tendencies, and right-wing approach, which, if allowed, might perpetrate state-centric practices in refugee determination policies violating non-refoulement. Unfortunately, in an attempt to circumvent the decision and continue with their objective, the UK Govt is seeking to find alternate legal mechanisms to continue the Rwanda policy and to protect state interests at the expense of refugees. Nevertheless, the 56-page judgment of the UKSC in the Rwandan deal is a feather in the cap of refugee jurisprudence as it upholds the non-refoulement principle, which I suggest could be followed by the Indian Supreme Court while rendering the final decision.

Cases cited

Mohammad Salimullah v Union of India WP (C) 793/2017, Interim Order dated 8 April 2021.


Bhatia, G. (2021). ‘Complicity in Genocide: The Supreme Court’s Interim Order in the Rohingya Deportation Case’. Indian Constitutional Law and Philosophy.

Briddick, C. (2023). The end of the Rwanda Scheme? R (AAA) v SSHD [2023]. Border Criminologies.

Collyer, M., Habineza, F., Ndahinda, F. and Shahani, U. (2023). ‘Refugee Protection and AAA and others (2023-4)’. Special Lecture Border Criminologies and Refugee Study Centre, Kings College London, 29 November 2023.

Katrak, M. and Kulkarni, S. (2021). ‘Refouling Rohingyas: The Supreme Court of India’s Uneasy Engagement with International Law’. Journal of Liberty and International Affairs 7(2), pp. 116 – 127.

McDonald-Norman, D. (2022). ‘Deprived of Life: Rohingya Asylum Seekers and the Limits of Constitutional Protections in India’. Indian Law Review 6(3), pp. 243 – 262.


Aneesha Johny is pursuing PhD in law at the National Law School of India University, Bangalore. Her thesis focuses on the comparative regional analysis of the responses of South Asian and European countries towards Rohingya and Syrian refugees in the context of the principle of non-refoulement. Her key research interests include comparative law, child rights, refugee law and judicial process.

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