Memorandum by UNHCR
ENQUIRY INTO PHYSICAL CONTROLS AT UK PORTS
1. The Committee's enquiry into Physical
Controls at UK Ports of Entry will focus on measures to deter
and detect unauthorised entry of people into the United Kingdom.
UNHCR will seek to set out its perspective on the current position
regarding refugees who are sometimes forced to seek to enter the
United Kingdom without proper entry documents.
1951 CONVENTION RELATING
2. The Committee's enquiry will include
an examination of whether the 1951 Convention relating to the
Status of Refugees requires revising. At the outset, UNHCR wishes
to stress that the 1951 Convention, complemented by the 1967 Protocol,
is a multilateral instrument of general and universal application,
creating a special international legal regime for the protection
of persons in need of international protection. For almost fifty
years, these international refugee instruments have proven sufficiently
flexible to respond to different and changing circumstances.
3. Should any discussion concerning a possible
revision be set in train, it would have to involve a complex multilateral
process by a variety of actors, including UNHCR as the international
agency mandated to provide international protection to refugees.
Any discussion outside a multilateral framework could have the
serious, if unintended, effect of potentially undermining a carefully
crafted international refugee protection regime by giving the
impression that revisions of the 1951 Convention can be discussed
in isolation and unilaterally. The 1951 Convention is an instrument
of refugee protection, not of immigration control, and its purpose
should not be subverted.
4. In recent years, access to the territory
of a country of asylum has become the main obstacle for refugees
seeking protection against persecution in their country of origin.
The countries of the European Union, including Britain, have built
up a formidable range of border control measures which make it
practically impossible for refugees fleeing persecution in their
own countries to gain legal entry into their territories and exercise
the right to seek and enjoy asylum from persecution as enshrined
in Article 14(1) of the 1948 Universal Declaration of Human Rights.
First, the citizens of nearly all "refugee-producing"
countries require visas to enter Britain; these are not issued
by overseas posts for the purpose of seeking asylum. Second, the
posting of an increasing number of Airline Liaison Officers ensures
that, regardless of the validity of reasons to flee a country,
insufficiently documented passengers are refused entry to aircraft
bound for Britain or another safe country. Finally, the imposition
of heavy fines on airlines, shipping agents, buses, lorries and
other carriers bringing "clandestine entrants" to Britain
has created an effective deterrent to refugees seeking to reach
safety in this country.
5. These restrictive measures, although
aimed principally at combating irregular migration, have serious
negative effects on persons in need of international protection.
UNHCR would therefore recommend the introduction of compensatory
measures that would ensure persons threatened with persecution
or other danger to their life or liberty are able to reach safety.
One such compensatory measure could be the possibility of issuance
of humanitarian visas by British diplomatic posts in countries
of origin with a view to access for protection against persecution.
This should not prejudice the integrity of the existing asylum
system whereby spontaneous arrivals may claim asylum in Britain.
6. As a rule, an alien is not admitted to
a country without a valid passport issued by the State of which
she/he is a national. Very often persons who are of special interest
to a regime find it impossible to obtain a passport. As a last
resort, they have to leave their country and enter another in
an irregular manner.
7. Article 31(1) of the 1951 Convention
relating to the Status of Refugees recognises inter alia that
departure/entry by irregular means are common methods used by
refugees fleeing persecution to arrive in a country of asylum.
It provides that "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". This obliges Contracting States
not to apply the relevant provisions under domestic penal law
to refugees and asylum seekers.
8. As to interpretation, it is generally
accepted that "coming directly" in Article 31(1) also
covers a person who transits an intermediate country for a short
time without having received or having applied for asylum there.
No strict time limit can be applied to the concept "coming
directly" and each case must be judged on its merits. Neither
can the expression "without delay" be mechanically applied
in terms of time limits, given the special situation of asylum
9. The above views are reflected in a judgement
given by the High Court on 29 July 1999 in the case of R v Secretary
of State for the Home Department, the CPS and Uxbridge Magistrates'
Court ex parte Sorani, Adimi and Kaziu. It held inter alia that,
although Article 31 of the 1951 Convention has not been formally
incorporated into English law, refugees are entitled to the benefit
of it in accordance with the doctrine of legitimate expectations
and that the protection afforded by Article 31 extends not only
to those ultimately granted asylum, but also to those claiming
asylum in good faith and those "recognisable as refugees
whether or not they have actually claimed asylum".
10. The Immigration and Asylum Act 1999
introduces the offence of "deception" imposing penalties
on non-British entrants who seek to obtain leave to enter without
the necessary entry clearance (Section 28). This section together
with other offences involving fraudulent obtaining, possession
or use of false documents is applicable to refugees unless statutory
defences provided by Section 31 of the same Act can be invoked.
The Crown Prosecution Service, in cooperation with other agencies
including UNHCR, is in the process of drafting a Memorandum of
Good Practice to implement Section 31 and prevent the prosecution
of asylum seekers who are entitled to the protection afforded
by Article 31 of the 1951 Convention.
11. Although the statutory defences provided
by Section 31 of the Immigration and Asylum Act 1999 are based
on Article 31 of the 1951 Convention, UNHCR believes that they
are phrased in a very restrictive manner. Only an asylum seeker
who has arrived directly in the UK from his/her country of origin
qualifies for the defence provided for in Section 31. This excludes
asylum seekers who have only transited other countries en route
to Britain. Even in the case of mere transit at an airport, the
burden of proof falls on the asylum seeker to show that s/he could
not be given protection in the intermediate country (Section 31(2)).
UNHCR would recommend a less restrictive application of Section
31 of the 1999 Act and a widening of the defence under that Section
to include those who have come to Britain through another country
with valid reasons.