This chapter examines the non-criminalisation clauses in the 1951 Refugee Convention and the Smuggling Protocol which are intended to protect refugees and smuggled migrants from prosecution for offences of irregular entry and stay. The chapter identifies and contrasts the nature of the protection in international law. It argues that the overlaps and differences between the concepts of ‘refugee’ and ‘smuggled migrant’, a lack of legal clarity in the non-criminalisation provisions and how they interact with each other, state concerns with security and borders at the expense of the human rights of migrants, and a lack of monitoring make it difficult for these groups to gain protection from prosecution. There is a need to consider whether refugees and smuggled migrants might benefit from the same non-criminalisation provision based on shared features of their experience and consequent vulnerability to exploitation.
This chapter looks at the much neglected provision of Article 31(1) of the Refugee Convention which prohibits the penalisation of refugees ‘coming directly from a territory where their life or freedom was threatened in the sense of Article 1’ for offences of illegal entry and presence as long as they ‘present themselves without delay to the authorities’ and ‘show good cause’ for the illegal entry or presence. Despite this, the penalisation of asylum seekers does occur in the form of fines and imprisonment and summary deportation; it also includes the delaying, obstructing or denying of access to asylum. Refugees without proper documentation may also be channelled into ‘an inferior refugee procedure’. The chapter argues that properly understood Article 31(1) exempts all asylum seekers from penalisation except those who have found permanent protection from persecution and therefore have no need to resort to irregular methods of travel.