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Article 31 of the 1951 Convention Relating to the Status of Refugees

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Article 31 of the 1951 Convention Relating to the Status of Refugees LEGAL AND PROTECTION POLICY RESEARCH SERIES Article 31 of the 1951 Convention Relating to the Status of Refugees Dr Cathryn Costello (with Yulia Ioffe and Teresa Büchsel) University of Oxford DIVISION OF INTERNATIONAL PROTECTION JULY 2017 PPLA/2017/01 DIVISION OF INTERNATIONAL PROTECTION UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES (UNHCR) CP2500, 1211 Geneva 2 Switzerland E-mail: [email protected] Website: www.unhcr.org The views expressed in this paper are those of the author and do not necessarily reflect those of the United Nations or UNHCR. This paper may be freely quoted, cited and copied for academic, educational or other non-commercial purposes without prior permission from UNHCR, provided that the source and author are acknowledged. The paper is available online at http://www.unhcr.org/protection-policy-and-legal-advice. The author is grateful for insightful comments from UNHCR staff and from various experts, including those participating at a roundtable organized by UNHCR in cooperation with the Refugee Studies Centre on 15 March 2017. © United Nations High Commissioner for Refugees 2017. Table of contents 1. INTRODUCTION ........................................................................................................................ 1 2. TREATY INTEPRETATION ....................................................................................................... 2 2.1 Rules on Treaty Interpretation .................................................................................... 2 2.2 Article 31 and the Object and Purpose of the 1951 Refugee Convention .................. 4 2.3 Article 31 in Legal Context ........................................................................................ 5 3. THE HEIGHTENED CONTEMPORARY SIGNIFICANCE OF ARTICLE 31..................... 7 3.1 Absence of Legal Access to Asylum .......................................................................... 7 3.2 The Criminalization and Suppression of Irregular Migration .................................... 7 3.3 The Human Rights Response to the Criminalization of Migration ............................ 8 4. THE ELEMENTS OF ARTICLE 31(1) ..................................................................................... 10 4.1 Personal Scope ......................................................................................................... 10 4.1.1 ‘Refugees’ under the Refugee Convention & Expanded Definitions .................. 10 4.1.2 Subsidiary and Other Protection Beneficiaries .................................................... 12 4.1.3 Temporary Protection Beneficiaries ..................................................................... 13 4.1.4 Mass Influx Arrivals ............................................................................................. 14 4.1.5 Asylum-Seekers ................................................................................................... 14 4.1.6 Asylum-Seekers with Claims deemed Inadmissible ............................................ 15 4.1.7 Rejected Asylum-Seekers .................................................................................... 16 4.2 Directness - ‘… coming directly from a territory where their life or freedom was threatened in the sense of Article 1 …’ ................................................................................ 17 4.3 ‘… enter or are present in their territory without authorization …’ ......................... 23 4.3.1 Territory ............................................................................................................... 23 4.3.2 Unauthorized Entry .............................................................................................. 23 4.3.3 Unauthorized Presence ......................................................................................... 24 4.3.4 Unauthorized Exit ................................................................................................ 25 4.4 Prompt Presentation - ‘… provided they present themselves without delay to the authorities …’ ....................................................................................................................... 27 4.4.1 Present to the Authorities ..................................................................................... 27 4.4.2 Without Delay ...................................................................................................... 27 4.5 Good Cause - ‘… show good cause for their illegal entry or presence.’ ................. 30 4.6 Non- Penalization on Account of Illegal Entry or Presence (Article 31(1)) ............ 32 4.6.1 ‘… Shall not Impose Penalties …’ ................................................................... 32 4.6.2 Bringing Charges .................................................................................................. 34 4.6.3 Denial of Economic or Social Rights ................................................................... 37 4.6.4 Disadvantages in the Asylum Procedures ............................................................ 37 4.6.5 Detention qua Penalty .......................................................................................... 38 4.6.6 ‘…. on account of their illegal entry or presence …’ ........................................... 38 4.6.7 Using False Documents and Related Offences .................................................... 38 4.6.8 Smuggling and Offences Relating to Assistance to Refugees in Irregular Entry 41 4.6.9 Offences Related to Particular Modes of Irregular Entry..................................... 43 5. THE ELEMENTS OF ARTICLE 31(2) ..................................................................................... 43 5.1 Article 31(2), Sentence 1 .......................................................................................... 43 5.1.1 Personal Scope ..................................................................................................... 43 5.1.2 Necessity of Restrictions ...................................................................................... 45 5.1.3 Encampment ......................................................................................................... 45 5.1.4 Other Restrictions on Movement ......................................................................... 45 5.1.5 Detention .............................................................................................................. 46 5.1.6 Problematic Detention Practices .......................................................................... 48 5.2 Article 31(2), Sentence 2 .......................................................................................... 50 6. ENSURING THE EFFECTIVNESS OF ARTICLE 31 ............................................................ 51 6.1 Prosecutorial Authorities .......................................................................................... 52 6.2 National Legislatures ................................................................................................ 53 6.3 National Courts ........................................................................................................ 57 6.4 Systemic Breaches .................................................................................................... 59 6.5 EU Law and Article 31 ............................................................................................. 60 BIBLIOGRAPHY ................................................................................................................................. 64 CASE LAW .......................................................................................................................................... 71 COUNTRY INFORMATION ............................................................................................................ 77 ACKNOWLEDGEMENTS ................................................................................................................ 82 Article 31 REFUGEES UNLAWFULLY IN THE COUNTRY OF REFUGE 1. The 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 authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. 2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country. Article 31 RÉFUGIÉS EN SITUATION IRRÉGULIÈRE DANS LE PAYS D’ACCUEIL 1. Les Etats Contractants n’appliqueront pas de sanctions pénales, du fait de leur entrée ou de leur séjour irréguliers, aux réfugiés qui, arrivant directement du territoire où leur vie ou leur liberté était menacée au sens prévu par l’article premier, entrent ou se trouvent sur leur territoire sans autorisation, sous la réserve qu’ils se présentent sans délai aux autorités et leur exposent des raisons reconnues valables de leur entrée ou présence irrégulières. 2. Les Etats Contractants n’appliqueront aux déplacements de ces réfugiés d’autres restrictions que celles qui sont nécessaires ; ces restrictions seront appliquées seulement en attendant
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