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24 March 2021

Penalising asylum seekers: Priti Patel’s asylum overhaul and Article 31 of the Refugee Convention

3 mins

The Home Secretary, Priti Patel, has continued her assault on the rights of asylum seekers and refugees this morning with new details of her proposed ‘overhaul’ of the UK’s asylum system. This time, she announced that claims by asylum seekers who arrive in the UK via ‘illegal’ routes from European countries will be dealt with differently to those brought by asylum seekers who arrive in the UK legally. The details are unclear but it appears that illegal entrants will only be eligible to receive a temporary grant of leave, during which they would remain liable to removal from the UK, whereas those who arrive legally will be eligible for an outright grant of indefinite leave to remain if their claims are successful.

The Home Secretary’s framing of her proposal as a way to punish people smugglers is misguided at best and dishonest at worst. In any event, the proposal would breach the UK’s obligations under the 1951 Refugee Convention. Article 31(1) of the Convention states:

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.

It is accepted that ‘coming directly’ includes persons who have briefly transited other ‘safe’ countries en route to the country in which they claim asylum and that ‘penalties’ are conceived broadly so as to include any measure that has a disadvantageous effect, rather than just criminal sanctions. It is undoubtable that granting certain refugees shorter periods of leave that render them indefinitely vulnerable to removal, solely on the basis of their method of entry to the UK, constitutes a prohibited penalty under the Convention.

It is regrettable that Priti Patel’s answer to the needs of refugees is to put the UK in breach of its international obligations under the Refugee Convention and this brings into question, once again, her commitment to and understanding of the rule of law.

In August 2020, the Home Office tweeted a video, suggesting that ‘activist lawyers’ were abusing the UK’s Immigration laws by delaying and disrupting the return of migrants with no right to remain in the UK. Read our Immigration team’s comments on it here, and visit our Immigration team’s homepage here

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