Select Committee on Home Affairs Appendices to the Minutes of Evidence


Memorandum by the Immigration Law Practitioners' Association


  1.  ILPA notes that the Committee is conducting an inquiry into the physical controls which operate at United Kingdom ports of entry and is examining whether the 1951 Convention on the Status of Refugees requires revising.

  2.  ILPA is concerned that the United Kingdom adheres to the spirit of Article 31 of the 1951 UN Convention on the Status of Refugees. Article 31(1) states:

"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."

  3.  This follows from recognition that:

"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." (1950 Memorandum from the UN Secretary-General)

  4.  It is in this context that ILPA is concerned that any measures considered to deter and detect clandestine entry of people should not in effect be a measure to deter genuine asylum seekers from coming to the United Kingdom to seek sanctuary.

  5.  Furthermore the problems faced by asylum seekers in fleeing their countries of origin with correct and valid documentation must be recognised. Indeed it is very unlikely that a person fleeing particularly persecution from their State authorities will have been in a position to apply to those State authorities for travel documentation or identity documents.

  6.  There may also be very valid reasons for an asylum seeker not claiming asylum immediately upon arrival in the United Kingdom. Hence the reference to a claim being made "without delay" in Article 31(1) must be approached with a degree of flexibility. As UNCHR Guidelines make clear:

". . . given the special situation of asylum seekers, in particular the effects of trauma, language problems, lack of information, previous experiences which often result in a suspicion of those in authority, feelings of insecurity, and the fact that these and other circumstances vary enormously from one asylum seeker to another, there is no time limit which can be mechanistically applied or associated with the expression `without delay'." (see also Grahl-Madsen's work The Status of Refugees in International Law (Vol.II, 1972))

  7.  Therefore any measure taken to control, deter or detect clandestine entry must recognise that genuine asylum seekers may resort to clandestine entry in order to obtain sanctuary in the United Kingdom and that it would be incompatible with the United Kingdom's international obligations for those people to be in any way denied the right to claim asylum.

  8.  As the Court of Appeal observed in the case of R v Uxbridge Magistrates Court ex parte Adimi and other (29 July 1999, CO/2533/98, CO/3007/98, CO/2472/98 & CO/1167/99)

"The Convention is a living instrument, changing and developing with the times so as to be relevant and to afford meaningful protection to refugees in the conditions in which they currently seek asylum. Apart from the current necessity to use false documents another current reality and advance, occurring since 1951, is the development of a readily accessible and worldwide network of air travel. As a result there is a choice of refuge beyond the first safe territory by land or sea. There have been distinctive and differing state responses to requests for asylum. Thus there exists a rational basis for exercising choice where to seek asylum." (per Mr Justice Newman)

  9.  Indeed in ex parte Adimi (cited above) the Court of Appeal gave strong indication in its judgment that the Secretary of State in conjunction with the Crown Prosecution Service should give careful consideration as to how to honour the United Kingdom's obligations under Article 31(1) of the 1951 Convention on the Status of Refugees and that even where a person is not recognised as a refugee but is given some other form of status that prosecution for use of false documentation or clandestine entry would be both undesirable and unjust.

  10.  Thus rather than consider any revision of the 1951 Convention on the Status of Refugees ILPA considers that proper adherence to Article 31(1) of that Convention is desirable. The need to control clandestine entry, such as it exists, must be very carefully considered in light of the obligations under Article 31(1) and any system to control clandestine entry must clearly distinguish between those who are ultimately afforded some form of status in the United Kingdom and those who are not.

  11.  However ILPA stresses that the distinction is not clearly made particularly if a person is caught attempting to clandestinely enter the United Kingdom and thus the decision to prosecute or punish a person resorting to clandestine entry should be delayed until after a determination of the person's claim under the 1951 Convention. This should apply equally to a claim under the European Convention of Human Rights.

  12.  Again ILPA stresses that there may be very valid reasons why a person does not simply present themselves to immigration control on arrival at a port and thus the failure to do so cannot automatically render them without need for international protection.

6 April 2000

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2001
Prepared 31 January 2001