Outsourcing Asylum: The Legality of Third-Country Deportations Under International Law

Under the Trump administration, immigration enforcement has undergone a dramatic transformation, including the expansion of policies designed to deter migration and expedite the removal of migrants already in the country. Among the most controversial of the administration’s policies is its use of third-country deportations—the removal of migrants to a country other than their own when return to their country of origin is deemed “impracticable, inadvisable, or impossible” under Section 1231(b)(2)(E) of the Immigration and Nationality Act (INA) [1]. For decades, this provision existed as an obscure clause within U.S. immigration law, rarely invoked in practice. The Trump administration, however, has stretched the intent of the law, negotiating agreements with countries such as El Salvador, Panama, Rwanda, and South Sudan to accept deportees who have no prior connection to those countries.

The United States is not alone in this approach. Similar “externalization” strategies have emerged globally. The United Kingdom’s attempt to deport asylum seekers to Rwanda and the European Union’s 2016 migration deal with Turkey reflect a broader global trend of shifting migration and asylum responsibilities beyond national borders. While these arrangements are often framed as necessary for deterrence and border security, they have sparked widespread criticism from human rights organizations and legal scholars who question their compliance with international law. Ultimately, while third-country deportations are permitted under certain domestic laws, they often violate international legal obligations, particularly the principles of non-refoulement, due process, __and protection from torture because they transfer migrants to states that cannot guarantee their safety or fair access to asylum. 

Although the United States is a party to key international treaties, including the Convention Against Torture (CAT), the International Covenant on Civil and Political Rights (ICCPR), and the 1951 Refugee Convention (1967 Protocol), the extent to which those treaties directly constrain U.S. domestic law remains contested. Under the Supremacy Clause of the U.S. Constitution, treaties made under the authority of the United States are “the supreme Law of the Land” [2]. However, U.S. courts distinguish between self-executing treaties (which automatically create enforceable rights in U.S. courts) and non-self-executing treaties (which require Congress to pass implementing legislation) [3]. Most human-rights treaties have been ratified by the U.S. as non-self-executing, meaning individuals generally cannot invoke them directly in U.S. courts. 

This separation between domestic and international law contributes to the limited enforceability of international obligations in the U.S. legal system. Although the United States is a party to the 1951 Refugee Convention (through the 1967 Protocol), domestic enforcement depends on congressional implementation and judicial interpretation. In Medellín v. Texas (2008), the U.S. Supreme Court held that a judgment of the International Court of Justice (ICJ) did not constitute enforceable federal law because it lacked implementing legislation or a self-executing treaty clause [4].

Additionally, no international body, neither the International Court of Justice (ICJ) nor the International Criminal Court, has jurisdiction to compel U.S. compliance with its human-rights obligations. The ICC, established by the 1988 Rome Statute, the founding treaty that created the Court and defines crimes such as genocide, war crimes, and crimes against humanity, prosecutes individuals rather than states [5]. The U.S. is not a party to the Rome Statute and has therefore not accepted the Court’s jurisdiction. As a result, international law functions more as a normative and diplomatic constraint on U.S. policy than as a direct enforceable legal limit, leaving practices such as third-country deportations largely governed by domestic interpretation.

While the previous discussion highlights the limits of enforcing international law in U.S. courts, it is nevertheless important to understand what international law requires of states in the context of deportations and transfers. Even when international norms lack direct enforcement mechanisms, they shape the standards by which state behavior is judged and provide the legal and moral framework against which domestic practices are evaluated. International refugee and human rights law establishes clear and binding limits on transferring individuals to third countries, emphasizing that the duty to prevent persecution or torture follows the individual, regardless of where a state attempts to relocate them. These principles reflect a central feature of modern international law: States cannot escape their protection obligations through geography, delegation, or diplomacy. 

The cornerstone of this framework is the 1951 United Nations Convention Relating to the Status of Refugees and its 1967 Protocol, which together define the legal status and rights of refugees. Article 33 of the Convention codifies the principle of non-refoulement, prohibiting states from returning any person to “the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group, or political opinion” [6]. This rule is widely seen as a customary international norm, binding all states together regardless of treaty ratification. It applies not only to direct returns but also to indirect or “chain” refoulement, in which a person is deported to a country that may subsequently send them into danger [7].

Complementing the Refugee Convention, the Convention Against Torture (CAT) and the International Covenant on Civil and Political Rights (ICCPR) extend these protections beyond the refugee context. Article 3 of CAT prohibits transferring anyone to a country where there are “substantial grounds for believing that he would be in danger of being subjected to torture,” while Articles 6 and 7 of the ICCPR guarantee the right to life and prohibit cruel, inhuman, or degrading treatment [8].  These frameworks affirm that the prohibitions on torture and inhumane treatment is absolute and cannot be suspended under any circumstances, meaning that national security, deterrence, or migration control cannot justify violating them. 

The UN High Commissioner for Refugees (UNHCR) has elaborated on these obligations through two key documents: its “Legal Considerations Regarding Access to Protection and a Connection between the Refugee and the Third Country” (2018) and its “Note on the Concept of Safe Country” (1991, reaffirmed 2018). __Together, these guidelines define the criteria for designating a state as a “safe third country.” A third country can only be considered safe if the person will be admitted; has access to a fair and efficient asylum procedure; is protected against refoulement, including onward transfers; and is granted lawful status and basic rights pending and following the asylum process. [9]. Most importantly, UNHCR states that these safeguards must be verified for each individual migrant prior to transfer, and that the deporting state retains responsibility for migrants’ protection after removal [10].

In practice, these standards create a high legal threshold that few existing “third-country” arrangements satisfy. Without proof that the receiving state meets these conditions, deportations risk violating international law, even if they comply with domestic statutes like the U.S. Immigration and Nationality Act.

Although international law sets firm limits on when and how individuals may be transferred across borders, the United States’ domestic implementation of those standards has often proven inconsistent. The Trump administration’s use of third-country deportations, in particular, reveals how domestic statutes can be stretched beyond their lawful and ethical intent, turning what was once an exceptional provision of immigration law into a central instrument of deterrence and mass removal.

The Immigration and Nationality Act (INA) grants the federal government a narrow, exceptional power to remove non-citizens to a third country when return to their country of origin is “impracticable, inadvisable, or impossible.” Specifically, under 8 U.S.C. § 1231(b)(2)(E), the Attorney General (now the Secretary of Homeland Security) may designate an alternative country of removal if the state of origin is unwilling or unable to accept the individual [11]. This statutory mechanism was intended to cover exceptional cases, including when a national origin state refuses to repatriate an individual or where necessary diplomatic arrangements cannot be made [12]. 

In practice, the Trump administration’s implementation of third-country deportations demonstrates how this rarely used statutory authority was expanded to facilitate removals far beyond its original scope. In 2025 the administration entered into agreements or took steps to remove individuals to countries such as South Sudan, El Salvador, and Eswatini, many of whom had no prior connection, citizenship, residence, or even documented ties to those states [13]. Such removals raise serious questions about the limits of the INA’s third-country removal authority: while the statute nominally requires that removal to the origin or other designated alternative country be impracticable, inadvisable, or impossible, yet the government’s practice appears to reverse that logic by selecting remote, unrelated third countries purely for deportation expediency [14]. According to legal practitioners, “[DHS] has abandoned adherence to the law and instead has unilaterally chosen where to remove a person” [15].

These developments have triggered litigation. On April 18, 2025, Brian E. Murphy of the U.S. District Court for the District of Massachusetts issued a preliminary injunction prohibiting the government from removing “any alien” to a country not explicitly identified in their original removal order, unless the individual is first given written notice and an opportunity to raise a fear-of-torture claim under the Convention Against Torture (CAT) [16]. The judge found that the government’s effort to deport eight men to South Sudan without following procedure violated his earlier order. Yet, on June 23, 2025, the Supreme Court of the United States effectively overturned Murphy’s injunction, allowing the administration to resume third-country removals while the case proceeds [17].

These developments show how a law meant for rare, exceptional cases has been turned into a tool for large-scale deportations with few procedural safeguards. Sending people to countries with which they have no connection, failing to screen for the risk of torture, and skipping the usual removal process all suggest that the government prioritized speed and political goals over legal limits and human-rights protections. The Trump administration’s approach to third-country deportations therefore exposes the gap between the government’s expansive interpretation of U.S. law and the narrower reading supported by both judicial precedent and international legal standards. 

Other democracies’ experiments with third-country deportations, particularly in the United Kingdom and the European Union, show that the practice consistently encounters legal barriers and human-rights challenges. In the United Kingdom, the Migration and Economic Development Partnership (UK‑Rwanda) (announced April 2022) aimed to transfer asylum-seekers arriving irregularly in the UK to Rwanda for processing and possible settlement. The UK government framed this as a deterrence mechanism and a way to disrupt smuggling networks [18]. However, on November 15th, 2023, the Supreme Court of the United Kingdom held that the plan was unlawful because Rwanda could not reliably be considered a “safe third country” under UK and international law [19]. Deficiencies in its asylum system, the court ruled, meant there was a “real risk of refoulement,” violating the European Convention on Human Rights (Art. 3) [20]. While the UK government has since negotiated a new treaty and passed the Safety of Rwanda (Asylum and Immigration) Act 2024 to effectuate the scheme, critics argue the plan remains legally and ethically contested [21].

Similarly, the EU–Turkey Deal (March 2016) between the European Union and Türkiye involved returning irregular migrants from Greece to Turkey in exchange for billions in aid to Türkiye and visa-liberalisation promises [22]. Although purportedly a pragmatic response to a migration surge, the deal drew sharp criticism for undermining access to asylum and safe third-country protections. For example, the Greece’s independent Asylum Appeals Committees, quasi-judicial bodies established under the national asylum system, found that 390 out of 393 decisions rejected the notion that Turkey qualified as a safe third country because migrants there faced a risk of refoulement to conflict zones, limited access to fair asylum procedures, and inadequate protection standards [23]. Similarly, commentary from the European Council on Refugees and Exiles described the deal as “unethical, illegal and unnecessary” [24]. 

Together, these examples show that the difficulties of third-country deportations are not limited to states with weak governance or limited capacity, but are structural to the practice itself.  inherent in third-country deportations. Even governments with strong legal institutions and procedural safeguards have been unable to reconcile third-country transfers with fundamental refugee protections. In both the United Kingdom and the European Union, judicial review and human-rights monitoring have shown that designating another country as “safe” is unsustainable when its asylum procedures are deficient or when there remains a genuine risk of onward refoulement [25]. Ultimately, these cases demonstrate that third-country deportations are not merely controversial in implementation but inherently unstable as a legal and moral framework, consistently failing to meet the protective protective standards of international refugee and human-rights law.

Supporters of third-country deportations argue that such policies are necessary for deterrence, diplomatic leverage, and the exercise of national sovereignty. Yet these justifications fail under international legal scrutiny and reveal how the logic of control often overrides the law of protection. A primary claim advanced by governments is that deporting migrants to third countries deters irregular migration. The reasoning is straightforward: if potential migrants know they might be transferred to a distant country such as Rwanda or South Sudan, they will be less likely to attempt the journey. This deterrence rationale reflects the United Kingdom’s Rwanda Plan and continues to shape U.S. rhetoric around mass removals. However, international law does not permit human-rights violations for deterrence purposes. The principle of non-refoulement, enshrined in Article 33 of the 1951 Refugee Convention, has no exception for reasons of public order or migration control [26]. The European Court of Human Rights reinforced this in Hirsi Jamaa v. Italy (2012), holding that Italy’s pushbacks of migrants at sea to Libya violated Article 3 of the European Convention on Human Rights because deterrence cannot justify exposing individuals to risk of harm [27]. 

A second justification emphasizes legality through bilateral or multilateral agreements. States such as the United States claim that since they negotiate transfer agreements with partner countries, like the 2025 agreements with El Salvador and Panama, the transfers are consensual and therefore lawful [28]. Yet, as the UNHCR’s 2018 “Legal Considerations on Access to Protection” makes clear, formal agreements cannot replace the obligation to verify, in each individuals’ case, that the receiving country is genuinely safe for that individual. Legal consent between states does not extinguish the sending state’s duty to prevent refoulement or torture under the Convention Against Torture (Article 3).

Finally, proponents invoke state sovereignty, arguing that governments possess the inherent right to control borders and determine who may remain within their territory. While sovereignty remains a cornerstone of international relations, it is not absolute. As articulated in Soering v. United Kingdom (1989) and reaffirmed in the International Law Commission’s Articles on State Responsibility (2001), states cannot contract out of their human-rights obligations through removal agreements [29].

Ultimately, deterrence, diplomacy, and sovereignty may serve as political arguments, but they carry no legal weight when measured against binding international norms. Each justification collapses under the fundamental rule that human protection, not deterrence, is the organizing principle of refugee and human-rights law.

The Trump administration’s expansion of third-country deportations reveals the deep tension between U.S. immigration law as it has been applied and the nation’s international human-rights obligations. What began as a narrow clause in the Immigration and Nationality Act meant for rare, exceptional cases, has evolved into a sweeping policy tool that strains the procedural safeguards built into immigration law. By sending migrants to countries such as South Sudan or El Salvador, where they have no connection and face potential danger, the United States has demonstrated how domestic authority can be used to circumvent global protection norms.

While the Supreme Court’s override of lower court injunctions may permit the policy to continue, legality is not the same as legitimacy. The U.S. prides itself on leadership in human rights and democracy, yet its current deportation practices place it in violation of the very treaties it helped shape, including the Refugee Convention and the Convention Against Torture [28]. These actions not only erode international credibility but also set a dangerous precedent for other states seeking to externalize migration control.

To restore alignment between its laws and values, the United States must reaffirm that border security does not override human dignity. Upholding the prohibition on refoulement found under international law and ensuring fair asylum access are not optional; they are the standards by which American justice and global leadership will ultimately be measured.

Footnotes

[1] U.S. Citizenship and Immigration Services, “Immigration and Nationality Act,” U.S. Citizenship and Immigration Services, July 10, 2019, https://www.uscis.gov/laws-and-policy/legislation/immigration-and-nationality-act.

[2] “Overview of Supremacy Clause,” Constitution Annotated: Analysis and Interpretation of the U.S. Constitution, https://constitution.congress.gov/browse/essay/artVI-C2-1/ALDE_00013395.

[3] Steve P. Mulligan, “International Law and Agreements: Their Effect upon U.S. Law,” Congress.gov, July 13, 2023, https://www.congress.gov/crs-product/RL32528.

[4] Medellín v. Texas, 552 U.S. 491 (2008). https://tile.loc.gov/storage-services/service/ll/usrep/usrep552/usrep552491/usrep552491.pdf.

[5] Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90 (entered into force July 1, 2002), https://www.icc-cpi.int/sites/default/files/2024-05/Rome-Statute-eng.pdf.

[6] United Nations High Commissioner for Refugees (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, Geneva: UNHCR, 26 January 2007, https://www.unhcr.org/media/advisory-opinion-extraterritorial-application-non-refoulement-obligations-under-1951-0.

[7] Ibid.

[8] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, 1465 U.N.T.S. 85 (entered into force June 26, 1987), https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-against-torture-and-other-cruel-inhuman-or-degrading.

[9] United Nations High Commissioner for Refugees (UNHCR), Background Note on the Safe Country Concept and Refugee Status, Geneva: UNHCR, 26 July 1991, https://www.refworld.org/reference/annualreport/unhcr/1991/en/92352.

[10] United Nations High Commissioner for Refugees (UNHCR), Legal Considerations Regarding Access to Protection and a Connection Between the Refugee and the Third Country in the Context of Return or Transfer to Safe Third Countries, Geneva: UNHCR, April 2018, https://www.refworld.org/policy/legalguidance/unhcr/2018/en/120729.

[11] United States Code. 8 U.S.C. § 1231: Detention and Removal of Aliens Ordered Removed, From Title 8 – Aliens and Nationality, Chapter 12 – Immigration and Nationality, Subchapter II – Immigration, Part IV – Inspection, Apprehension, Examination, Exclusion, and Removal, https://uscode.house.gov/view.xhtml?edition=prelim&num=0&req=granuleid%3AUSC-prelim-title8-section1231.

[12] National Immigration Litigation Alliance (NILA), Practice Alert: Third Country Deportations and D.V.D. v. DHS, June 27, 2025, https://immigrationlitigation.org/wp-content/uploads/2025/06/25.05.27-DVD-Practice-Alert.pdf.

[13] James D. Zirin, “Trump’s Third-Country Deportations Explained,” Washington Monthly, August 4, 2025, https://washingtonmonthly.com/2025/08/04/trumps-third-country-deportations-explained.

[14] “Trump Administration’s Third Country Removals Put Migrants in Harm’s Way,” International Refugee Assistance Project, August 8, 2025, https://refugeerights.org/news-resources/trump-administrations-third-country-removals-put-migrants-in-harms-way.

[15] 11: National Immigration Litigation Alliance (NILA), Practice Alert: Third Country Deportations and D.V.D. v. DHS, June 27, 2025, https://immigrationlitigation.org/wp-content/uploads/2025/06/25.05.27-DVD-Practice-Alert.pdf.

[16] Andrew Chung, “Trump Administration Accuses Judge of Defying Supreme Court in Deportation Fight,” Reuters, June 24, 2025, https://www.reuters.com/legal/government/trump-administration-accuses-judge-defying-supreme-court-deportation-fight-2025-06-24.

[17] Chad de Guzman, “Supreme Court Allows Rapid Deportations to ‘Third Countries,’” Time, June 24, 2025, https://time.com/7297091/supreme-court-third-country-deportations-trump-south-sudan-sotomayor-dissent.

[18] UK Parliament, House of Commons Library, UK–Rwanda Migration and Economic Development Partnership: Research Briefing, Published May 29, 2024, https://researchbriefings.files.parliament.uk/documents/CBP-9629/CBP-9629.pdf.

[19] Ibid.

[20] R (on the application of AAA and others) (Respondents/Cross Appellants) v Secretary of State for the Home Department (Appellant/Cross Respondent) [2023] UKSC 42, https://supremecourt.uk/cases/uksc-2023-0093.

[21] Emilie McDonnell, “UK Supreme Court Finds UK-Rwanda Asylum Scheme Unlawful,” Human Rights Watch, November 15, 2023, https://www.hrw.org/news/2023/11/15/uk-supreme-court-finds-uk-rwanda-asylum-scheme-unlawful; “Safety of Rwanda (Asylum and Immigration) Bill: Factsheet,” https://www.gov.uk/government/publications/the-safety-of-rwanda-asylum-and-immigration-bill-factsheets/safety-of-rwanda-asylum-and-immigration-bill-factsheet-accessible.

[22] Kyilah Terry, “Article: The EU-Turkey Deal, Five Years on: A Frayed and Controversial but Enduring Blueprint,” Migration Policy Institute, April 8, 2021, https://www.migrationpolicy.org/article/eu-turkey-deal-five-years-on.

[23] Mariana Gkliati, “The Application of the EU-Turkey Agreement: A Critical Analysis of the Decisions of the Greek Appeals Committees,” European Journal of Legal Studies 10, no. 1 (2017): 81–123, https://ejls.eui.eu/wp-content/uploads/sites/32/2017/11/The-Application-of-the-EU-Turkey-Agreement-A-Critical-Analysis-of-the-Decisions-of-the-Greek-Appeals-Committees.pdf.

[24] “Editorial: EU-Turkey Deal 5 Years on: Fundamentals Remain Unchanged,” European Council on Refugees and Exiles (ECRE), March 19, 2021, https://ecre.org/editorial-eu-turkey-deal-5-years-on-fundamentals-remain-unchanged.

[25] R (on the application of AAA and others) (Respondents/Cross Appellants) v Secretary of State for the Home Department (Appellant/Cross Respondent) [2023] UKSC 42. https://supremecourt.uk/cases/uksc-2023-0093; Gkliati, “The Application of the EU-Turkey Agreement.”

[26] Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137 (entered into force April 22, 1954), https://www.unhcr.org/about-unhcr/overview/1951-refugee-convention.

[27] Jan Arno Hessbruegge, “European Court of Human Rights Protects Migrants Against ‘Push Back’ Operations on the High Seas,” American Society of International Law (ASIL) Insights 16, no. 14 (April 17, 2012), https://www.asil.org/insights/volume/16/issue/14/european-court-human-rights-protects-migrants-against-%E2%80%9Cpush-back%E2%80%9D.

[28] Stefano Pozzebon et al., “El Salvador Offers to House Violent Us Criminals and Deportees of Any Nationality in Unprecedented Deal,” CNN, February 4, 2025, https://www.cnn.com/2025/02/03/americas/el-salvador-migrant-deal-marco-rubio-intl-hnk; United Nations High Commissioner for Refugees (UNHCR), Legal Considerations Regarding Access to Protection.

[29] Soering v. United Kingdom, Application No. 14038/88, Judgment of July 7, 1989, European Court of Human Rights (Series A, No. 161), https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-57619%22]}; International Law Commission (ILC), Articles on Responsibility of States for Internationally Wrongful Acts, Yearbook of the International Law Commission, 2001, vol. II, Part Two, United Nations, 2001, https://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf.

[30] 24: Convention Relating to the Status of Refugees. July 28, 1951. 189 U.N.T.S. 137 (entered into force April 22, 1954), https://www.unhcr.org/about-unhcr/overview/1951-refugee-convention; 7: Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, 1465 U.N.T.S. 85 (entered into force June 26, 1987), https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-against-torture-and-other-cruel-inhuman-or-degrading.