UNHCR issues latest guidance against penalization of asylum-seekers for irregular entry

UNHCR, the UN Refugee Agency, has issued its 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 from 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 guidance also addresses the issue of penalization due to smuggling. It makes clear that refugees cannot be penalized 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, with the aim of promoting 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.

For more information, please contact:

• In Geneva, Shabia Mantoo, [email protected], +41 79 337 7650

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.