Freedom from Penalties for Illegal Entry

Due to the unpredictable and sudden nature of flight, as well as increasingly restrictive border controls, refugees can find themselves in circumstances where they have to enter a country illegally in order to seek safety. This page outlines circumstances that lead to refugees’ illegal entry. It also highlights Article 31 of the 1951 Convention, which protects refugees’ right to seek irregular entry into a country when his life or freedom is threatened.

Article 31(1) of the 1951 Convention

The 1951 Convention is the only international instrument specifying that it is unlawful to penalize refugees and asylum seekers for irregular entry into a state or territory. Article 31(1) of the Convention reads:

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 authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

Circumstances that lead to illegal entry or presence

This article reflects the unpredictable and sudden nature of flight. Many refugees must abandon all their possessions and flee their homes with no notice or warning, and are unable to bring documents such as passports that permit them to cross borders lawfully. Houses and possessions, including identity documents, may be destroyed. Documents may also be confiscated on route by people smugglers, traffickers, persecutors or unscrupulous officials, and refugees are obliged to cross borders in places where they will be undetected.

In addition, refugees may not possess identity documents in the first place, whether due to discriminatory practices by the country of origin, poverty or loss during previous instances of internal displacement.

As well as a lack of documents, it is common for refugee clients to have used false documents in order to escape a country and pass through official channels undeterred. Entering a territory without documents, with false documents, or at an unauthorized border crossing may all count as instances of irregular – or illegal under the laws of the receiving state – entry.

As enshrined in Article 1A(2) of the 1951 Convention, it requires that the individual is outside of her country of nationality (or former habitual residence) in order to be recognized as a refugee. Given the challenges of legal entry or presence as stated above, penalties should therefore not be applied to forced migrants for their illegal entry or presence.

Applying Article 31(3) to protect

Article 31 provides protection contingent upon the refugee “present[ing] themselves without delay to the authorities” and “show good case for their illegal entry or presence.” The latter component of this duty is fulfilled by demonstrating that the refugee acted in good faith, i.e. the intent to seek asylum. It must be shown that the individual believes there is a sufficient cause for their illegal entry or presence, such as escaping threats to their life, freedom or security.

It is important to note that threats to life and freedom do not have to be explicitly linked to the country of origin. It is possible that a refugee experiences such threats following their initial flight, and this does not invalidate the protections contained in Article 31. In addition, refugees are not required to have come directly from territories where their life or freedom was threatened.

The former component – declaring their presence to authorities without delay – may create difficulties for refugees unaware of such obligations. Lack of knowledge (or ability to know) the law may be a useful argument to defend refugees who have not complied with this duty to present themselves to host country authorities. It could also be alleged that fear of authorities due to persecution at the hands of state actors in the country of origin is a valid reason for not having sought to regularize one’s presence in a foreign state. Note that the mere presence of UNHCR in a country should not be used as a decisive argument for the availability of effective protection in that country.

Common reasons states apply penalties for illegal entry or presence

  • Refugees have spent years in the receiving state without seeking to regularize their migration status (this may be due to lack of knowledge, or fear as delineated above).
  • States criminalize irregular entry to their territory, and (1) fail to specify in domestic legislation that refugees or asylum seekers are exempt under international law from such penalties, or (2) do not implement effective screening in mixed migration flows to implement exemptions.
  • Border officials, police or other law enforcement officials are unaware of this exemption for the purposes of seeking international protection, or choose not to follow guidelines in order to meet targets.
  • Receiving states are friendly with certain refugee-sending states, causing them to overlook refugees’ need to seek international protection and override international obligations to respect Article 31.
  • Repressive border protection policies overlook Article 31.

If states turn away an asylum seeker at their border, or refuse to acknowledge justifications for an asylum seeker’s ‘illegal’ presence and deport her, its actions amount to refoulement, constitution a grave violation of the Refugee Convention, and in certain cases, the customary prohibition on torture and cruel, inhuman and degrading treatment.

It is also unjustifiable to impose penalties on air carriers that bring asylum seekers with incorrect documentation into the territory of a state. It is common practice for refugees to flee a country with documents (forged or otherwise) and destroy these while on board and seek asylum upon landing.

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