APPENDIX 24
Memorandum by Guy S Goodwin-Gill, Professor
of International Refugee Law, University of Oxford
PHYSICAL CONTROLS AT UK PORTS OF ENTRY COMPLIANCE
WITH INTERNATIONAL OBLIGATIONS RELATING TO REFUGEES AND HUMAN
RIGHTS
1. INTEREST AND
QUALIFICATION
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.
2. OBJECT OF
THE PRESENT
SUBMISSION
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.
3. OBLIGATIONS
TOWARDS REFUGEES
UNDER THE
1951 CONVENTION (CSR51)
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.
THE SCOPE
OF ARTICLE
31(1)
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.
"GOOD CAUSE"
FOR ILLEGAL
ENTRY OR
PRESENCE
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.
4. CONFIRMATION
OF THE
PRINCIPLE IN
THE NATIONAL
LAW OF
STATES PARTY
TO THE
1951 CONVENTION
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.
5. CONFIRMATION
OF THE
PRINCIPLE IN
JUDICIAL DECISIONS
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.
6. CONFIRMATION
OF THE
PRINCIPLE IN
EUROPEAN PRACTICE
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.
7. IMPLEMENTATION
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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