Article 31 of the 1951 Convention relating to the
Status of Refugees
Geneva
Expert Round Table
8‑9
November 2001
Organized
by the United Nations High Commissioner for Refugees
and the
Graduate Institute of International Studies in Geneva
Summary
Conclusions on Article 31 of the 1951 Convention
relating
to the Status of Refugees – Revised
The
discussion during the first day of the Geneva Expert Roundtable was based on a
background paper by Guy Goodwin-Gill, Professor of International Law at the
University of Oxford, entitled Article 31 of the 1951 Convention relating to
the Status of Refugees: Non-penalization, Detention and Protection. In
addition, Roundtable participants were provided with written contributions from
Michel Combarnous, International Association of Refugee Law Judges (IARLJ),
Frankie Jenkins, Human Rights Committee of South Africa, as well as the Refugee
and Immigration Legal Centre in Melbourne, Australia. Participants included 28
experts from 18 countries, drawn from Governments, NGOs, academia, the
judiciary and the legal profession. Rachel Brett from the Quaker United Nations
Office in Geneva moderated the discussion.
The Round
Table reviewed the extensive practice of States in regard to refugees and
asylum seekers entering or remaining illegally, many of whom fall within the
terms of Article 31 of the 1951 Convention. It took account of the origins of
this provision in the debates in the United Nations in 1950 and in the
Conference of Plenipotentiaries, held in Geneva in 1951. It noted the intention
of the drafters of the Convention to lay down, among others, a principle of
immunity from penalties for refugees who, ‘coming directly from a
territory where their life or freedom was threatened in the sense of Article 1,
enter or are present... without authorization, provided they present themselves
without delay to the authorities and show good cause for their illegal entry or
presence.’
The
following summary conclusions do not necessarily represent the individual views
of participants or of UNHCR, but reflect broadly the understandings emerging
from the discussion.
GENERAL
CONSIDERATIONS
1. Article
31 of the 1951 Convention relating to the Status of Refugees presents
particular challenges to States seeking to manage asylum applications
effectively, while ensuring that specific international obligations are fully
implemented.
2. The
interpretation and application of Article 31 requires that account be taken
both of the developing factual circumstances affecting the movements of refugees
and asylum seekers, and also of developments in international law, including
the impact of regional and international human rights instruments, the practice
of treaty and other monitoring bodies, and the provisions of related treaties,
such as the Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children, and the Protocol against the Smuggling of
Migrants by Land, Sea and Air, supplementing the United Nations Convention
against Transnational Organized Crime.
3. It
was recalled that the UNHCR Executive Committee had acknowledged that refugees
will frequently have justifiable reasons for illegal entry or irregular
movement, and that it had recommended appropriate standards of treatment in,
among others, Conclusions Nos. 15, 22, 44 and 58.
4. It
was also observed that for States Parties to the 1951 Convention and/or 1967
Protocol, Article 31 combines obligations of conduct and obligations of result.
5. Thus,
Article 31(1) specifically obliges States not to impose penalties on refugees
falling within its terms. Article 31(2) calls upon States not to apply to the
movements of refugees within the scope of paragraph 1, restrictions other than
those that are necessary, and only until their status is regularized locally or
they secure admission to another country.
6. The
effective implementation of these obligations require concrete steps at the
national level. In the light of experience and in view of the nature of the
obligations laid down in Article 31, States should take the necessary steps to
ensure that refugees and asylum seekers within its terms are not subject to
penalties. Specifically, States should ensure that refugees benefiting from
this provision are promptly identified, that no proceedings or penalties for illegal
entry or presence are applied pending the expeditious determination of claims
to refugee status and asylum, and that the relevant criteria are interpreted in
the light of the applicable international law and standards.
7. In
particular, while the relevant terms of Article 31 (‘coming
directly’, ‘without delay’, ‘penalties’,
‘good cause’) must be applied at the national level, full account
must always be taken of the circumstances of each individual case if
international obligations are to be observed. It was further noted, on the
basis of the practice of States, that these obligations are implemented most
effectively where accountable national mechanisms are able to determine the
applicability of Article 31, having regard to the rule of law and due process,
including advice and representation.
8. Steps
are also required to ensure that the results laid down in Article 31(2) are
achieved. In particular, appropriate provision should be made at the national
level to ensure that only such restrictions are applied as are necessary in the
individual case, that they satisfy the other requirements of this Article, and
that the relevant standards, in particular international human rights law, are taken into account.
9. The
incorporation and elaboration of the standards of Article 31 in national
legislation, including by providing judicial review in the case of detention,
would be an important step for the promotion of compliance with Article 31 and
related human rights provisions.
SPECIFIC
CONSIDERATIONS
10. In relation to
Article 31(1):
(a) Article
31(1) requires that refugees shall not be penalised solely by reason of
unlawful entry or because, being in need of refuge and protection, they remain
illegally in a country.
(b)
Refugees are not required to have come directly from
territories where their life or freedom was threatened.
(c) Article
31(1) was intended to apply, and has been interpreted to apply, to persons who
have briefly transited other countries or who are unable to find effective
protection in the first country or countries to which they flee. The drafters
only intended that immunity from penalty should not apply to refugees who found
asylum, or who were settled, temporarily or permanently, in another country.
The mere fact of UNHCR being operational in a certain country should not be
used as a decisive argument for the availability of effective protection in
that country.
(d) The
intention of the asylum-seeker to reach a particular country of destination,
for instance for family reunification purposes, is a factor to be taken into
account when assessing whether s/he transited through or stayed in another
country.
(e) Having
a well‑founded fear of persecution is recognized in itself as ‘good
cause’ for illegal entry. To ‘come directly’ from such
country via another country or countries in which s/he is at risk or in which
generally no protection is available, is also accepted as ‘good
cause’ for illegal entry. There may, in addition, be other factual
circumstances which constitute ‘good cause’.
(f) ‘Without
delay’ is a matter of fact and degree; it depends on the circumstances of
the case, including the availability of advice. In this context it was
acknowledged that refugees and asylum-seekers have obligations arising out of
Article 2 of the 1951 Convention.
(g) The
effective implementation of Article 31 requires that it apply also to any
person who claims to be in need of international protection; consequently, that
person is presumptively entitled to receive the provisional benefit of the no
penalties obligation in Article 31 until s/he is found not to be in need of
international protection in a final decision following a fair procedure.
(h) The
term ‘penalties’ includes, but is not necessarily limited to,
prosecution, fine, and imprisonment.
(i) In
principle, a carrier which brings in an ‘undocumented’ passenger
who is subsequently determined to be in need of international protection should
not be subject to penalties.
11. In relation
to Article 31(2):
(a) For the purposes of
Article 31(2), there is no distinction between restrictions on movement ordered
or applied administratively, and those ordered or applied judicially. The power of the State to impose a
restriction must be related to a recognised object or purpose, and there must be
a reasonable relationship of proportionality between the end and the
means. Restrictions on movement
must not be imposed unlawfully and arbitrarily.
(b) The
detention of refugees and asylum seekers is an exceptional measure and should
only be applied in the individual case, where it has been determined by the
appropriate authority to be necessary in light of the circumstances of the case
and on the basis of criteria established by law in line with international
refugee and human rights law. As such, it should not be applied unlawfully and
arbitrarily and only where it is necessary for the reasons outlined in ExCom
Conclusion no. 44, in particular for the protection of national security and
public order (e.g. risk of absconding). National law and practice should take
full account of the international obligations accepted by States, including
through regional and universal human rights treaties.
(c) Refugees
and asylum seekers should not be detained on the ground of their national,
ethnic, racial or religious origins, or for the purposes of deterrence.
(d) Initial
periods of administrative detention for the purposes of identifying refugees
and asylum seekers and of establishing the elements for their claim to asylum
should be minimised. In particular, detention should not be extended for the
purposes of punishment, or maintained where asylum procedures are protracted.
(e) Detention
beyond the initial period must be justified on the basis of a purpose indicated
in 11(b) above.
(f) UNHCR
Guidelines on Applicable Criteria and Standards relating to the Detention of
Asylum-Seekers provide important guidance. Families and children, in
particular, should be treated in accordance with international standards and
children under eighteen ought never to be detained. Families should in
principle not be detained; where this is the case, they should not be
separated.
(g) There
is a qualitative difference between detention and other restrictions on freedom
of movement. Many States have been able to manage their asylum systems and
their immigration programmes without recourse to physical restraint. Before
resorting to detention, alternatives should always be considered in the
individual case. Such alternatives include reporting and residency
requirements, bonds, community supervision, or open centres. These may be explored with the
involvement of civil society.
(h) Access
to fair and expeditious procedures for the determination of refugee status, or
for determining that effective protection already exists, is an important
element in ensuring that refugees are not subject to arbitrary or prolonged
detention.
(i) In
terms of procedural safeguards, at a minimum, there should be a right to review
the legality and the necessity of detention before an
independent court or tribunal, in accordance with the rule of law and the
principles of due process. Refugees and asylum-seekers should be advised
of their legal rights, have access to counsel and to national courts and
tribunals and be enabled to contact the Office of UNHCR.
(j) UNHCR
should, upon request, be advised of, and allowed access to, all cases of
detained refugees and asylum seekers.
(k) Where detention is deemed
necessary, States should ensure that refugees and asylum seekers are treated in
accordance with international standards. They should not be located in areas or
facilities where their physical safety and well‑being are endangered; the
use of prisons should be avoided. Civil society should be involved in
monitoring the conditions of detention.
12. Non-legal
strategies and necessary follow-up are also critical. These include the
preparation and dissemination of instructions to relevant levels of government
and administration on the implementation of Article 31, training and capacity-building.
Particular attention should be given to ensuring that strategies and actions
taken by States do not serve to exacerbate racist or xenophobic perceptions,
behaviour or attitudes.
13. States
should maintain accurate records of all cases where refugees and asylum seekers
are detained or where their movement is otherwise restricted, should publish
statistical data of such detention and restrictions on movement and should
regularly inform UNHCR of cases of detained refugees and asylum seekers pursuant
to their obligation under Article 35 of the Convention.