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

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