Non-Penalization and Non-Criminalization of Refugees and Other Migrants for Illegal Entry and Stay

Cathryn Costello and Yulia Ioffe, ‘Chapter 51: Non-Penalization and Non-Criminalization’ in Cathryn Costello, Michelle Foster, and Jane McAdam (eds), Oxford Handbook of International Refugee Law (OUP, forthcoming March 2021).

Posted: 9 Mar 2021

See all articles by Cathryn Costello

Cathryn Costello

University of Oxford - Refugee Studies Centre; University of Oxford - Faculty of Law; University of Oxford - Department of International Development

Yulia Ioffe

UCL IRDR; University of Oxford

Date Written: May 17, 2020

Abstract

The chapter examines article 31 of the Convention relating to the Status of Refugees (Refugee Convention), the provision which purports to protect refugees from penalization for ‘illegal entry and stay’. The chapter draws on the previous work by the authors for UNHCR, including a review of national caselaw and practice on article 31 from over forty States. It reflects on the crucial role of the provision in safeguarding the right to seek asylum and argues that non-penalization constitutes one of the objects and purposes of the Refugee Convention. As a result, the chapter considers the distinct obligation on States to refrain from any acts frustrating the treaty’s object and purpose. Beyond article 31 of the Refugee Convention, the chapter explores international human rights law as a potentially wider source of protection. It examines whether the criminalization of irregular migration itself may be regarded as a human rights violation, thereby opening up a new avenue for legal research and advocacy. Finally, the chapter argues that aside from treaty obligations under international refugee and human rights law there is an emerging general principle of law relating to non-penalization of refugees and some other migrants.

Keywords: international law, non-penalization, human rights, migration, asylum, refugees, criminalization, illegal entry and stay, object and purpose, general principles of law

Suggested Citation

Costello, Cathryn and Ioffe, Yulia, Non-Penalization and Non-Criminalization of Refugees and Other Migrants for Illegal Entry and Stay (May 17, 2020). Cathryn Costello and Yulia Ioffe, ‘Chapter 51: Non-Penalization and Non-Criminalization’ in Cathryn Costello, Michelle Foster, and Jane McAdam (eds), Oxford Handbook of International Refugee Law (OUP, forthcoming March 2021)., Available at SSRN: https://ssrn.com/abstract=3782672

Cathryn Costello

University of Oxford - Refugee Studies Centre ( email )

Oxford Department of International Development
32 Mansfield Road
Oxford, OX13TB
United Kingdom

University of Oxford - Faculty of Law ( email )

St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom

University of Oxford - Department of International Development ( email )

3 Mansfield Road
Oxford, OX1 3TB
United Kingdom

Yulia Ioffe (Contact Author)

UCL IRDR

South Wing
Gower Street
London, WC1E 6BT
United Kingdom

HOME PAGE: http://https://iris.ucl.ac.uk/iris/browse/profile?upi=YIOFF49

University of Oxford ( email )

Mansfield Road
Oxford, Oxfordshire OX1 4AU
United Kingdom

HOME PAGE: http://www.law.ox.ac.uk/people/yulia-ioffe

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