APPENDIX 16
Memorandum by the Immigration Law Practitioners'
Association
PHYSICAL CONTROLS AT UK PORTS OF ENTRY
1. ILPA notes that the Committee is conducting
an inquiry into the physical controls which operate at United
Kingdom ports of entry and is examining whether the 1951 Convention
on the Status of Refugees requires revising.
2. ILPA is concerned that the United Kingdom
adheres to the spirit of Article 31 of the 1951 UN Convention
on the Status of Refugees. Article 31(1) states:
"The Contracting States shall not impose penalties,
on account of their illegal entry or presence, on refugees who,
coming directly from a territory where their life or freedom was
threatened in the sense of Article 1, enter or are present in
their territory without authorisation, provided they present themselves
without delay to the authorities and show good cause for their
illegal entry or presence."
3. This follows from recognition that:
"A refugee whose departure from his country
of origin is usually a flight, is rarely in a position to comply
with the requirements for legal entry (possession of national
passport and visa) into the country of refuge." (1950 Memorandum
from the UN Secretary-General)
4. It is in this context that ILPA is concerned
that any measures considered to deter and detect clandestine entry
of people should not in effect be a measure to deter genuine asylum
seekers from coming to the United Kingdom to seek sanctuary.
5. Furthermore the problems faced by asylum
seekers in fleeing their countries of origin with correct and
valid documentation must be recognised. Indeed it is very unlikely
that a person fleeing particularly persecution from their State
authorities will have been in a position to apply to those State
authorities for travel documentation or identity documents.
6. There may also be very valid reasons
for an asylum seeker not claiming asylum immediately upon arrival
in the United Kingdom. Hence the reference to a claim being made
"without delay" in Article 31(1) must be approached
with a degree of flexibility. As UNCHR Guidelines make clear:
". . . given the special situation of asylum
seekers, in particular the effects of trauma, language problems,
lack of information, previous experiences which often result in
a suspicion of those in authority, feelings of insecurity, and
the fact that these and other circumstances vary enormously from
one asylum seeker to another, there is no time limit which can
be mechanistically applied or associated with the expression `without
delay'." (see also Grahl-Madsen's work The Status of Refugees
in International Law (Vol.II, 1972))
7. Therefore any measure taken to control,
deter or detect clandestine entry must recognise that genuine
asylum seekers may resort to clandestine entry in order to obtain
sanctuary in the United Kingdom and that it would be incompatible
with the United Kingdom's international obligations for those
people to be in any way denied the right to claim asylum.
8. As the Court of Appeal observed in the
case of R v Uxbridge Magistrates Court ex parte Adimi and other
(29 July 1999, CO/2533/98, CO/3007/98, CO/2472/98 & CO/1167/99)
"The Convention is a living instrument, changing
and developing with the times so as to be relevant and to afford
meaningful protection to refugees in the conditions in which they
currently seek asylum. Apart from the current necessity to use
false documents another current reality and advance, occurring
since 1951, is the development of a readily accessible and worldwide
network of air travel. As a result there is a choice of refuge
beyond the first safe territory by land or sea. There have been
distinctive and differing state responses to requests for asylum.
Thus there exists a rational basis for exercising choice where
to seek asylum." (per Mr Justice Newman)
9. Indeed in ex parte Adimi (cited above)
the Court of Appeal gave strong indication in its judgment that
the Secretary of State in conjunction with the Crown Prosecution
Service should give careful consideration as to how to honour
the United Kingdom's obligations under Article 31(1) of the 1951
Convention on the Status of Refugees and that even where a person
is not recognised as a refugee but is given some other form of
status that prosecution for use of false documentation or clandestine
entry would be both undesirable and unjust.
10. Thus rather than consider any revision
of the 1951 Convention on the Status of Refugees ILPA considers
that proper adherence to Article 31(1) of that Convention is desirable.
The need to control clandestine entry, such as it exists, must
be very carefully considered in light of the obligations under
Article 31(1) and any system to control clandestine entry must
clearly distinguish between those who are ultimately afforded
some form of status in the United Kingdom and those who are not.
11. However ILPA stresses that the distinction
is not clearly made particularly if a person is caught attempting
to clandestinely enter the United Kingdom and thus the decision
to prosecute or punish a person resorting to clandestine entry
should be delayed until after a determination of the person's
claim under the 1951 Convention. This should apply equally to
a claim under the European Convention of Human Rights.
12. Again ILPA stresses that there may be
very valid reasons why a person does not simply present themselves
to immigration control on arrival at a port and thus the failure
to do so cannot automatically render them without need for international
protection.
6 April 2000
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