Transfer is not the only route by which a person can end up back in a country where they face torture. A state may instead create conditions in which leaving becomes the only bearable option, and then record the departure as voluntary. International law does not treat that label as the end of the matter.
The prohibition on disguised expulsion
The International Law Commission addressed the practice directly in its 2014 Draft Articles on the Expulsion of Aliens. Article 10(1) provides that a state may not resort to disguised or indirect means or techniques to bring about the departure it could not lawfully order.
UNHCR, in its handbook on voluntary repatriation, has described the mechanism as the creation of a coercive environment through lack of protection and material destitution. The Committee against Torture, in its general comment on the implementation of article 3, addresses dissuasive measures that induce people to return despite the risk to them personally. The Special Rapporteur on torture has described such practices as refoulement in disguise.
The test
Legal analysis of the doctrine, surveyed in an EJIL:Talk! examination of the authorities and in the International Journal of Refugee Law, identifies three elements:
- The act or omission is attributable to the state.
- The circumstances are coercive enough to leave the person with no real alternative to leaving.
- There is an intention to bring the departure about.
Where those are present, the departure is not voluntary in law, and the state carries the same responsibility as if it had carried out the removal. The European Court of Human Rights has concluded that consent to return cannot be treated as voluntary where the person faces detention with no prospect of liberty.
The measures at issue are ordinary ones
That is what makes the doctrine necessary. The measures identified are administrative rather than dramatic: prolonged detention with no realistic prospect of release, denial or withdrawal of permission to work, withholding of essential services, indefinite delay in processing, separation from family, repeated relocation, and the offer of assisted return as the only route out of an otherwise open-ended situation.
Why people holding CAT protection are particularly exposed
A person granted deferral of removal under the Convention Against Torture occupies an unusual position, explained in our explainer on removal to a third country. They cannot lawfully be returned to the country in question. But the grant confers no status, no path to residence and no protection from detention. They may be unable to work, unable to travel, unable to regularise their position, and liable to be detained while another destination is sought. The protection holds; the life around it does not.
That combination is the coercive environment the doctrine describes. A person judicially found likely to face torture, who then signs a request for return because the alternative is indefinite detention, has not made a free choice. The finding does not stop being true because a form was signed.
What this means for monitoring
- Departures recorded as voluntary should be examined rather than assumed. The question is what the alternative was.
- Where a person holds protection against return to a country and then returns to it, the circumstances deserve documentation.
- Length of detention, access to work, access to support and access to counsel are measurable, and each bears on whether a choice was real.
- Consent obtained inside a place of detention should be assessed with the care any statement obtained there requires. National Preventive Mechanisms, with their right of private interview under OPCAT, are already constituted to do this.
ICET’s training and technical assistance work includes supporting monitoring bodies to ask these questions. Our resource directory lists organisations providing legal assistance to people in this position.
This article is published for educational purposes and is not legal advice. The law described here changed several times between 2025 and 2026. Anyone facing removal, or advising someone who is, should consult a qualified immigration lawyer. See also our explainer on removal to a third country.