Strategies to Deal with State Circumvention: The European Court of Human Rights' Protection Practices and Jurisprudence Developments for Those Who Have Not Applied for Asylum in the Principle of Non-Refoulement

Abstract

As the number of global refugees reaches an all-time high, various countries have adopted strategies such as maritime interception, border repatriation, and overseas processing to circumvent the legal obligations arising from the "non-refoulement" principle. This has led to a large number of individuals at risk of persecution being deprived of the opportunity to apply for asylum, thereby creating a special category of "unapplied asylum seekers". This article analyzes how the European Court of Human Rights (ECtHR) has functionally expanded its jurisdiction through its "effective control" principle and substantively strengthened procedural obligations. By using judicial activism to address the systemic protection gaps caused by evasion strategies, the ECtHR has transformed the application of the "non-refoulement" principle from a formal "submission of an application" to a substantive "within its jurisdiction and facing a real risk". This approach fills the protection gap for unapplied asylum seekers.