Select Committee on Home Affairs Appendices to the Minutes of Evidence


Memorandum by UNHCR


  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.


  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 seekers.

  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.

UNHCR London

April 2000

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