Beyond the European Courts: Alternative Case Law on Non-Refoulement at Embassies and Consulates

Contemporary asylum systems continue largely to condition access to international protection on physical entry into State territory, exposing asylum-seekers to significant risks along migratory routes. Against this background, this article examines whether the principle of non-refoulement may apply beyond territorial borders when individuals seek protection at embassies and consulates. It shows that the European Court of Human Rights and the Court of Justice of the European Union have resisted recognising non-refoulement obligations in diplomatic missions, relying on restrictive conceptions of jurisdiction and the scope of EU law. In contrast, the UN Human Rights Committee, the Court of Appeal (England and Wales), the Inter-American Court of Human Rights, and the Spanish Supreme Court have developed alternative approaches that allow the principle – or at least its protective logic – to apply in these situations. Together with a reading of the Refugee Convention in accordance with the rules of treaty interpretation, these approaches reveal underexplored doctrinal pathways for protection that fall short of recognising a general right to humanitarian visas but nonetheless challenge prevailing European judicial orthodoxy.