Blog post by Cathryn Costello (University of Oxford & Hertie School, Berlin) and Emilie McDonnell (University of Oxford & Adjunct Researcher, University of Tasmania), and forms part of a series of blog posts responding to the UK Home Office’s New Plan for Immigration.
The New Plan for Immigration published by the UK Home Office on 24 March 2021 contains very little that is innovative, but it does amplify a trend of punishing asylum seekers who arrive in the UK without prior authorisation. As it is extremely difficult, if not impossible, for most asylum seekers to enter the UK regularly, the Plan and draft Nationality and Borders Bill introduced on 6 July 2021 in all likelihood breach the UK’s international legal obligations. This post focuses on the UK’s obligation not to penalise refugees for unlawful entry or stay under Article 31 of the Refugee Convention (currently implemented, albeit imperfectly, by section 31 of the Immigration and Asylum Act 1999 (UK)), which arguably reflects a wider international legal principle of non-penalisation.
Lack of legal access to asylum
The Plan is based on a manifestly false premise, that asylum seekers and refugees who travel irregularly are generally morally blameworthy, as they should simply have made use of existing legal pathways. However, legal access to asylum is lacking. The UK’s visa regime and sanctions imposed on carriers for transporting improperly or undocumented persons makes it near impossible for most asylum seekers to reach the UK legally. Increasing humanitarian routes for those in their country of origin facing direct risk, as the Plan proposes, will go only a small way in addressing this general problem and giving effect to the UK’s commitments under the Global Compacts to facilitate safe migration and increase complementary pathways for protection.
In particular, reliance on resettlement as an accessible legal route is both empirically and legally misleading. Resettlement places are few, and for the vast majority (around 99.9%) of refugees, unavailable. Moreover, refugees cannot apply for resettlement. Unlike visas and other routes to regular travel, resettlement is a highly discretionary process where individuals have little agency. The vulnerability criteria for selecting refugees are so vague as to be verging on the arbitrary. While the Plan’s commitment to ensuring that refugees can also enter through community sponsorship is welcome, imagining resettlement as the primary mode of access to asylum is both empirically implausible and legally problematic.
The obligation not to penalise asylum seekers for irregular entry
Treating asylum seekers differently based on ‘mode of arrival’ in all likelihood breaches a number of binding legal obligations of the UK. In particular, the Refugee Convention, which the UK helped draft and has signed and ratified, contains a fundamental provision where states commit not to penalise asylum seekers and refugees for ‘illegal entry and stay.’ Article 31 reflects the drafters’ understanding that refugees are often compelled to have recourse to illegal means to flee (see before the House of Lords R v Asfaw). Indeed, during the drafting of the Convention, the then UN High Commissioner for Refugees drew on his own experience of flight from the occupied Netherlands to underscore the importance of this provision:
[I]n 1944, he had himself left the Netherlands on account of persecution and had hidden in Belgium for five days. As he had run the risk of further persecution in that country, he had been helped by the resistance movement to cross into France. From France he had gone on into Spain, and thence to Gibraltar. Thus, before reaching Gibraltar, he had traversed several countries in each of which the threat of persecution had existed. He considered that it would be very unfortunate if a refugee in similar circumstances was penalized for not having proceeded direct to the country of asylum.
The heightened contemporary importance of Article 31 has long been acknowledged by the UK courts. Famously, Lord Simon-Brown stated in the UK High Court in Adimi:
The need for Article 31 has not diminished. Quite the contrary. Although under the Convention subscribing States must give sanctuary to any refugee who seeks asylum (subject only to removal to a safe third country), they are by no means bound to facilitate his arrival. Rather they strive increasingly to prevent it. The combined effect of visa requirements and carrier’s liability has made it well-nigh impossible for refugees to travel to countries of refuge without false documents. […].
While Article 31 is limited in scope, both the UNHCR and courts around the world, including in the UK, interpret it to protect most asylum seekers and refugees who enter irregularly from penalisation. The text applies to those who ‘come directly’ to the UK, but that stipulation merely means that those who have status elsewhere risk penalisation if they move onward. It does not mean that those whose flight takes them across multiple states, even in a protracted fashion, may be penalised. The drafting history reveals this, specifically that ‘[t]he drafters only intended that immunity from penalty should not apply to refugees who found asylum, or who were settled, temporarily or permanently, in another country’, as do the leading interpretations of the UK courts. Further, as the UNHCR recently stated, requiring individuals to seek asylum in the first safe country ‘would undermine the global humanitarian and cooperative principles on which refugee protection is founded.’ This principle has recently been reaffirmed by the UNGA and the UK in the Global Compact on Refugees (Refugee Compact).
Both the Plan and clause 34 of the Bill (‘Article 31(1): immunity from penalties’) are in tension with the correct legal interpretation of Article 31 of the Refugee Convention. Clause 34(1) provides that ‘a refugee is not to be taken to have come to the United Kingdom directly from a country where their life or freedom was threatened if, in coming from that country, they stopped in another country outside the United Kingdom, unless they can show that they could not reasonably be expected to have sought protection under the Refugee Convention in that country.’ The refugee will not be taken to have presented themselves without delay to the authorities, with only limited exceptions applying (clause 34(2)).
The notion of ‘penalisation’ includes not only the imposition of formal criminal penalties, but also a range of other disadvantages. For example, the Canadian Supreme Court in B010 expressly rejected the government’s argument that Article 31(1) only related to criminal penalties, rather assuming it applied to a procedural detriment (in that case inadmissibility) imposed on the asylum-seeker.
The Bill envisions a wide range of penalties for refugees having entered the UK irregularly, with clause 10(5) and (6) allowing such refugees (so-called ‘Group 2 refugees’) to be treated differently, for example, as to the length and requirements of limited or indefinite leave to remain, recourse to public funds and family reunification rights, while also allowing family members to be treated differently in these respects. Clause 14 allows asylum claims to be declared inadmissible if the person has a connection to a safe third state, including when they have not ‘come directly’ to the UK by failing to claim protection from the safe third state, while clause 37 criminalises irregular entry with imprisonment and fines, appearing to make no exception for refugees, even those who the Bill deems to have ‘come directly’ and ‘presented themselves without delay’ (so-called ‘Group 1 refugees’ in cl 10).
The UK government has lost many cases already when it has wrongfully penalised asylum seekers and refugees. The Plan and Bill demonstrate contempt for the UK’s international obligations in many respects, but its approach to non-penalisation is particularly striking, given that the UK Courts at all levels and indeed the Criminal Cases Review Commission have already sought to ensure that the obligation not to penalise asylum seekers and refugees is effective. The UK’s Crown Prosecution Service recently published updated guidance to the effect that migrants piloting small boats across the English Channel with the sole intention of claiming asylum will no longer be prosecuted, noting that Prosecutors should give consideration to Article 31 of the Convention.
It seems depressingly likely that the ‘new’ practices will be successfully legally challenged, but in the meantime, the political costs of this misleading rhetoric and indeed the harsh treatment will fall on asylum seekers and refugees.
- Cathryn Costello, Yulia Ioffe and Teresa Büchsel, ‘Article 31 of the 1951 Convention Relating to the Status of Refugees’ (Legal and Protection Policy Research Series, UNHCR 2017)
- Tristan Harley, ‘Refugee Participation Revisited: The Contributions of Refugees to Early International Refugee Law and Policy’ (2020) RSQ 1
-  See eg R v Uxbridge Magistrates Court, ex part Adimi  EWHC Admin 765 , ; R v Asfaw  UKHL 31 -; R v Mateta  EWCA Crim 1372 [21(iv)].
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