This is a summary of what was said by Elizabeth Tan, UNHCR’s Director of International Protection – to whom quoted text may be attributed – at press briefing on 27.09.2024 at the Palais des Nations in Geneva.
UNHCR, the UN Refugee Agency, has issued latest legal guidance today on the way States should treat
asylum-seekers who arrive at their borders in an irregular way.
Under Article 31 of the Refugee Convention, States are prohibited penalizing asylum-seekers and
refugees merely because they have entered a country irregularly, if they meet certain requirements.
This is owing to the fact that many flee life-threatening situations and may have no other available means
to seek safety. In addition to a dearth of legal or safer pathways to seek asylum, many may face
impediments in accessing or retrieving essential documentation during their flight.
The Refugee Convention states that refugees cannot be punished for irregular entry as long as three
conditions are met – “directness”, “promptness” and the showing of “good cause”. UNHCR’s legal
guidance provides an interpretation of these terms, including that refugees and asylum-seekers must
present themselves to the authorities without delay and show valid reasons why they have entered
without a visa.
If these requirements are met, refugees and asylum-seekers should also not be detained for entering irregularly – including for the purposes of deterrence.
UNHCR’s Guidelines also address the issue of penalisation due to smuggling. It makes clear that
refugees cannot be penalised if they are suspected or found to have been involved in organizing,
assisting, or facilitating their own or others’ illegal entry or stay, as long as they were the ones being
smuggled, or if they took these actions to secure their own, their family’s, or others’ entry for humanitarian
reasons.
While the concept of non-penalization is a core principle of refugee law, it is often misunderstood or
deliberately breached in practice, with some States imposing penalties on refugees and asylum-seekers
for illegal entry or presence.
UNHCR’s guidance is thus released at a time of increased legal and practical barriers to accessing
asylum, aiming to promote consistency in the application of international law. They also serve as a timely
reminder that seeking asylum is not a criminal act but a life-saving measure and a fundamental human
right.
In addition to urging States to respect and ensure compliance with international refugee law, UNHCR is
also advocating for other alternatives to risky journeys, such as providing or increasing access to safer
and legal routes.
ENDS
Notes to the editor:
UNHCR’s Guidelines on International Protection, issued since 2001, are authoritative legal interpretive
guidance documents intended for and used by governments, policy and decision-makers, legal
practitioners and members of the judiciary, among others involved in refugee and asylum matters.
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