Select Committee on Home Affairs Appendices to the Minutes of Evidence


Memorandum by Guy S Goodwin-Gill, Professor of International Refugee Law, University of Oxford



  1.  I am Professor of International Refugee Law in the University of Oxford, United Kingdom, and President of the Refugee Legal Centre, London. Until 1999, I was Professor of Asylum Law in the University of Amsterdam, the Netherlands, I have been Editor-in-Chief of the International Journal of Refugee Law since 1989, and I am the author of, among others, The Refugee in International Law, Clarendon Press, Oxford, 2nd edition, 1996.

  2.  I have had direct experience of refugee cases, arising from earlier employment as a Legal Adviser for the Office of the United Nations High Commissioner for Refugees (UNHCR) in various posts throughout the world. I act as Consultant on refugee and migration law to government departments in various countries, and I am often requested to provide advice on international refugee law and the interpretation of relevant treaties.


  3.  This submission explains the scope of international obligations towards refugees entering or present illegally, and calls attention to some of the still wider range of human rights obligations, which are often not integrated into legislation, policies and administrative practices.

  4.  This submission also emphasises that the protection principle of non-penalisation of refugees entering illegally is both humane, and also a perfectly practical preposition capable of being integrated into a modern national system of refugee protection. However, a number of steps still need to be taken to ensure that refugees in need of protection are identified as early as possible.


  5.  The United Kingdom ratified the 1951 Convention relating to the Status of Refugees on 11 March 1954 and the 1967 Protocol on 4 September 1968: 189 UNTS 150; 606 UNTS 267. Like the other 140 States party (as of 10 November 2000), it accepts the refugee definition and agrees to accord refugees certain rights and benefits to refugees. Among these is the principle of non-penalisation on account of illegal entry or presence:

    Article 31—Refugees unlawfully in the country of refuge

    1.  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.

  6.  A proposal to exempt illegally entering refugees from penalties was first included in the draft refugee convention prepared by the Ad hoc Committee on Statelessness and Related Problems in February 1950: UN doc. E/AC.32.L 25, 2 Feb 1950; E/AC 32.L 26, 2 Feb 1950. As noted at the time, "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": UN doc E/AC.32.L.38, 15 February 1950, Annex 1; Annex II (comments p.57). Some even favoured excusing from penalties those who give "assistance to (illegally entering) refugees for honourable reasons"; UN doc E/AC.32.L.43, 24 August 1950, p.9.


  7.  The travaux préparatoires (including records of the debates at the 1951 Conference) confirm the "ordinary meaning" of Article 31 (1) CSR51, which applies to refugees who enter or are present without authorisation, whether they have come directly from their country or origin, or from another territory, where their life or freedom was threatened, provided they show good cause for such entry or presence.

  8.  However, because the proposed Article "trespassed" on the delicate "sovereign" areas of admission and asylum, France was concerned that it should not allow those who had already "found asylum . . . to move freely from one country to another without having to comply with frontier formalities": Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, Summary Records: UN doc. A/CONF.2/SR.13, (M. Colemar, France).

  9.  The essential question was whether the requirement that the refugee should show "good cause" for entering or being present illegally was adequate, (as the United Kingdom representative, Mr Hoare, argued), or whether more explicit wording was required. Many participating States recognised that refugees might well have good cause for leaving a first country of refuge: Summary Records: UN doc. A/CONF.2/SR.13, p 15;UN doc A/CONF.2/SR.35, p18.

  10.  The United Nations High Commissioner for Refugees, Dr Van Heuven Goedhart, himself a former refugee, referred to "necessary transit" and the difficulties facing a refugee arriving in an ungenerous country: Summary Records: UN doc. A/CONF.2/SR.14, p.4.

  11.  The United Kingdom representative, Mr Hoare, said that fleeing persecution was itself good cause for illegal entry, but there could be other good causes. Responding to a French suggestion that the benefit of non-penalisation be limited to those who had "been unable to find even temporary asylum", the British representative objected on the very practical ground that it would impose on the refugee the impossible burden of proving a negative: Summary Records: UN doc. p. 13; UN doc. A/CONF. 2/SR.14, p.10-11.


  12.  The Executive Committee of the Programme of the United Nations High Commissioner for Refugees has addressed the phenomenon of "illegal" or "irregular movements of refugees and asylum seekers on at least two occasions. On each occasion, participating States have acknowledged that refugees may have justifiable reasons for such action. See Executive Committee Conclusion No 15 (XXX)—1979: Report of the 30th Session: UN doc. A/AC.96/572, para. 72(2)(k); Executive Committee Conclusion No. 58 (XL)—1989: Report of the 40th Session of the Executive Committee: UN doc. A/AC.96/737. p.23.

  13.  Apprehensions about the consequences of applying for asylum at a port of entry, in addition to lack of knowledge as to asylum procedures and the advice or instructions of third parties, may constitute good cause. The UNHCR Handbook recognises that the circumstances which lead asylum seekers to flee their country may also make them apprehensive about approaching persons in authority: UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1979, paras. 190, 198.


  14.  The principle of immunity from penalties for refugees entering or present without authorisation has been confirmed in the national legislation of many States party to the 1951 Convention. Particularly striking is Swiss law, which extends immunity from penalisation even to those who assist refugees entering illegally: Loi fédérale du 26 mars 1931 sur le séjour et l'é tablissement des étrangers, (Nouvelle teneur selon le ch. I de la LF du 9 Oct. 1987. en vigueur depuis le ler mars 1988 (RO 1988 332 333: FF 1986 III233), article 23(3). See also the law of the United States of America: 8 Code of Federal Regulations Part 270—Penalties for Document Fraud. Sec. 270.2. Enforcement procedures. (8 U.S.C. 1101, 1103, and 1324c).

  15.  Belize, Finland, and Ghana provide other examples. In Canada, where section 94 of the Immigration Act creates specific immigration offences including entering or remaining "by use of a false or improperly obtained passport, visa or other document pertaining to . . . admission", it is nonetheless firm government policy not to prosecute an "illegal entrant" who claims refugee status until a decision on such claim is made by the Immigration and Refugee Board and not to prosecute an illegal entrant found to be a refugee.


  16.  The principle of immunity from penalty and the protected status of the refugee have often been upheld in municipal court decisions: see, for example, Landgericht (Regional Superior Court), Münster, Federal Republic of Germany, (Ref: 20 Dec 1988, LG Münster Ns 39 Js 688/86 (108/88)); Aftoforo Trimeles Plimeliodikeio Myttilinis—Court of First Instance (Criminal Cases), Myttilini, Greece, 1993: Shimon Akram & others, reference: No. 585/1993); Swiss Federal Court (Bundesgericht, Kasstionshof, Urteil vom 17 Marz 1999), reported in Asyl 2/99, 21-23.


  17.  The European Court of Human Rights expressly took Article 31 of the 1951 Convention into account in Amuur v France, where it also confirmed a number of general principles relevant to the treatment of asylum seekers arriving at State borders. It stressed that detention related to border control must not deprive asylum seekers of the protection of the European Convention or the 1951 Convention, or of effective access to the refugee status determination procedure: European Court of Human Rights. 1996. Amuur v France. No. 17/1995/523/609, paras 41, 43, 50, 54.

  18.  The European Community, in working towards a common asylum policy, has also committed itself to upholding the 1951 Convention/1967 Protocol and "other relevant human rights treaties": Article 63 Treaty of the European Community, Tampere Conclusions, October 1999.


  19.  In international law, every State is responsible for ensuring and protecting the human rights of everyone within its territory and subject to its jurisdiction: Article 1, 1950 European Convention on Human Rights; European Court of Human Rights, Loizidou v Turkey. (Merits), (40/1993/435/514), Judgement, Strasbourg, 18 December 1996; Article 2(1), 1966 Covenant on Civil and Political Rights.

  20.  A State can only ensure that it fulfils its obligations under the 1951 Convention if, in its administrative procedures, including the exercise of any discretion, it makes provision for claims to protection under that instrument to be raised and determined before the initiation of measures or procedures that may otherwise be prohibited.

  21.  A general policy and/or practice of prosecuting illegal entrants and users of false travel documentation without regard to the circumstances of individual cases, and without allowing an opportunity for any claim for refugee status or asylum to be considered promptly and effectively by the responsible central authority before prosecution, is a breach of Article 31 CSR51, and of other human rights provisions.

  22.  A refusal to consider the merits of claims in the circumstances described, or inability so to do by reason of a general policy on prosecutions, would likewise amount to a breach of international obligations.

  23.  Moreover, the process of prosecution and punishment of asylum seekers before deciding status protracts the process of assessment, rendering yet more difficult the task of determining the existence of a well-founded fear, and of actually removing those found not to be in need of international protection.

  24.  In the view of the present writer, the United Kingdom's international obligations, its own interests, and the system of international protection of refugees are best served by, as a minimum:

    —  Legislation incorporating the obligation accepted by the United Kingdom, as described above.

    —  Clear administrative instructions to border control authorities (Customs and Excise, Immigration, Police) on the processing of asylum seekers arriving illegally or with improper documentation.

    —  Prompt referral of all such asylum seekers to the asylum/refugee status determination procedure.

    —  Fair and effective decision-making on the basis of the applicant's statements, provided with legal advice, and in the light of comprehensive and up-to-date country of origin information (the Oakington project may provide a possible model).

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