Paolo Biondi, EU Asylum
Agency
Photo
credit: Ggia, via Wikimedia
Commons
Introduction
The 1951
Refugee Convention is a pivotal document in international refugee
protection, outlining the rights of asylum seekers and the responsibilities of
states. Central to this convention is Article 31(1), which addresses the
non-penalization of refugees for illegal entry or presence:
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
Traditionally viewed as a
provision ensuring refugees are not penalised for illegal entry or presence if
they present themselves promptly to authorities and have good cause for their
illegal entry or presence, in my opinion Article 31(1) has broader
implications. This blog post explores these implications, highlighting how
Article 31(1) and related provisions within International Refugee Law (IRL) and
International Human Rights Law (IHRL) should be interpreted to uphold human
rights standards. By examining the negotiating history, authoritative interpretations
and jurisprudential decisions, it suggests an unorthodox interpretation of
Article 31 pointing to a wider interpretation of the right to perform secondary
movements where effective compliance with human rights is essential for
legitimately allocating of responsibility for asylum applications.
Understanding the Orthodox
Interpretation of Article 31
Article 31(1) aims to address the
practical realities of flight from persecution, acknowledging that refugees may
have no choice but to enter or remain in a country illegally but, most
importantly, implicitly regulates the right to perform secondary movements.
During the drafting
process, states, particularly France, expressed concerns about ensuring
that refugees who had already found protection in one country would not move
freely to others without adherence to border formalities. This debate
underscored the tension between the humanitarian protection of refugees and
states’ sovereign rights to control their borders and regulate the distribution
of refugees (responsibility sharing).
While Article 31(1) prohibits the
imposition of penalties on refugees for their illegal entry or presence, it
must be read alongside Article 32, which restricts protection from expulsion to
refugees lawfully in the territory. This distinction highlights that the scope
of penalties under Article 31(1) does not necessarily encompass removal to
another country, as this could fall under the separate regime of expulsion
under Article 32. Recent jurisprudence, such as rulings on the UK’s
Rwanda policy, suggests that removal to a third country may not always
constitute a penalty under Article 31(1), provided the destination country is
deemed capable of providing effective protection. However, international and
regional jurisprudence also supports the view that measures resulting in
effective penalties, such as removal without substantive guarantees of
protection or the risk of refoulement, fall within the ambit of Article 31(1).
The principle of non-penalization ensures that refugees are not disadvantaged
due to the manner of their arrival, particularly when they lack viable
alternatives to reach safety.
Two critical elements in the
interpretation of Article 31(1) are the concepts of effective protection and meaningful
connection. Effective protection refers to conditions in a country that ensure
refugees’ safety and access to basic human rights. Meaningful connection (e.g.
family links) emphasize the importance of a reasonable connection with the
transit or destination country. Effective protection is further elucidated in
Article 33(1) of the Refugee Convention, which prohibits refoulement—returning
refugees to territories where their life or freedom would be threatened. This
principle extends beyond the country of origin to any territory where such
risks exist, underscoring the necessity of ensuring that refugees are not
merely safe but can live free from fear of persecution or other serious harm.
During the 1951 Convention
negotiations, while Norway’s proposed amendment of Article 31(1)—replacing
“coming directly” from a country of persecution with “any
territory” where life or freedom is threatened—was not accepted, this
rejection does not negate the principle’s evolution. Subsequent jurisprudence
and interpretations, such as those from the ECtHR, CJEU and the UNHCR, have
expanded the understanding of effective protection (e.g. Dublin jurisprudence
further below). These developments in essence reflect an acknowledgment that
threats in transit countries or deficiencies in protection standards can also
justify secondary movements. Yet, already during the negotiations. UNHCR
stressed that transit and secondary movements are sometimes unavoidable due to
the challenges refugees face in initial asylum countries. Historical examples,
such as the flight of refugees during World War II informed this perspective.
The experience of UNHCR officials (including the United Nations High
Commissioner for Refugees Dr Van Heuven Goedhart) participating in the Conference
of Plenipotentiaries on the Status of Refugees and Stateless Persons, who
themselves had to transit through multiple countries during their own escapes,
highlighted the practical realities faced by refugees.
Thus, when refugees seek
effective protection or a meaningful connection in a transit or destination
country, such as family reunification among other compelling reasons, they may
indeed have “good causes” for secondary movements under a modern
interpretation of Article 31(1). This aligns with the broader human rights
framework that underpins the Refugee Convention, ensuring that its protections
remain relevant to contemporary challenges. While the effective protection and
meaningful connection terms do not appear explicitly in the text of Article 31,
they are crucial because they underpin the broader principles and objectives of
the 1951 Refugee Convention.
Secondary Movements and
Effective Protection: An Evolving Legal Framework
This section argues for a broader
interpretation of “good cause” under Article 31(1) and the principle
of non-refoulement under Article 33(1) of the 1951 Refugee Convention. It
emphasizes that secondary movements can be justified by systemic deficiencies
in transit countries, a lack of effective protection, or strong connections,
such as family ties, with a destination country. These interpretations align
with the Convention’s humanitarian purpose, which prioritizes refugees’
fundamental rights over rigid procedural constraints.
The criterion of “good
cause” for illegal entry under Article 31(1) has been a point of
contention. Traditional interpretations often limit “good cause” to
the manner of entry, focusing on immediate justifications such as the urgency
of escape from persecution. However, scholars like Goodwin-Gill
advocate for a broader understanding of this concept. According to
Goodwin-Gill, “good cause” can extend to reasons such as the presence
of family members in a specific country or other genuine links that justify
secondary movements. His interpretation aligns with the principle that refugees
should not be penalized for seeking effective protection or family
reunification, even when this necessitates onward travel. This broader
interpretation underscores the humanitarian objectives of the 1951 Refugee
Convention, emphasizing that “good cause” should accommodate the
complex realities refugees face when fleeing persecution and seeking
protection.
UNHCR and recent international
court rulings have reinforced this expansive view of “good cause”
under Article 31(1). For instance, systemic deficiencies in asylum procedures
in transit countries—such as those identified in Greece in 2009 during the M.S.S.
v. Belgium and Greece case, and in Italy
in 2011 with Tarakhel v. Switzerland — demonstrate how inadequate
protection can justify secondary movements. These deficiencies are considered
violations of human rights, as they fail to meet the minimum standards of
effective protection, thereby necessitating the right to seek protection
elsewhere. Additionally, the interpretation of non-refoulement has evolved to
encompass broader threats beyond persecution as narrowly defined in the 1951
Refugee Convention. This includes situations of generalized
violence, systemic oppression, and serious human rights violations, as
recognized in both international and regional jurisprudence. Such an expansive
approach ensures that refugees are shielded from threats to their life or
freedom, whether arising from persecution, armed conflict, or other severe
risks, thereby reinforcing the principles of protection enshrined in the
Convention.
A similar interpretation was
upheld in 2014 by the
German Federal Constitutional Court (GFCC), which considered the
interaction between safe third country practices and Article 31(1). In that
context, the court, referencing M.S.S. v. Belgium and Greece, concluded
that while Greece was designated as a “safe country” under German
law, systemic deficiencies in its asylum procedures rendered it unsafe at the
time of entry. These deficiencies exposed applicants to risks of inhumane and
degrading treatment, justifying their secondary movements. This interpretation
aligns with the reasoning in subsequent decisions by the CJEU, such as in Ibrahim,
where the principle of effective protection under the Dublin Regulation was
applied to recognize systemic deficiencies as undermining safety. These cases
confirm that the right to perform secondary movements is not necessarily linked
to “persecution” in a third country; instead, deficiencies in asylum
procedures can represent “good cause” and a human rights violation,
entitling the applicant to seek protection elsewhere.
The absence of protection in
third countries fundamentally alters the nature of an asylum seekers journey.
What may initially appear as an indirect flight can transform into a direct
flight under Article 31(1) when inadequate protection in a transit country
prolongs or exacerbates the risk of persecution or other serious harm. This
interpretation reflects a broader understanding of the Convention’s purpose:
either (a) “good cause” can trump the “coming directly”
requirement, encompassing the need to avoid a lack of effective protection en
route, or (b) “coming directly” must itself be understood in light of
the Convention’s object and purpose, which would exclude transit through
countries where effective protection is not available.
Such an interpretation aligns
with universal rules of treaty interpretation under the Vienna Convention on
the Law of Treaties, which emphasize that the object and purpose of a treaty
must guide its application. Moreno Lax
has argued that unilateral designations of responsibility under the 1951 Refugee
Convention or the Dublin system for the application of the Safe Third Country
(STC) concept “must be rejected when they merely provide for a deflection
mechanism incompatible with the realization of the object and purpose of the
Refugee Convention.” While Moreno Lax’s critique primarily addresses procedural
responsibility mechanisms, the underlying principle she highlights—the
necessity of ensuring mechanisms serve the Convention’s purpose rather than
undermining it—is adapted here to support the argument against penalizing
refugees for secondary movements where effective protection is absent.
Similarly, Lord Justice Simon
Brown, in R.
v. Uxbridge Magistrates’ Court, acknowledged that differing state
responses to asylum requests create a rational basis for refugees to exercise
some choice in where to seek asylum. While he rejected the idea of
unconditional freedom to choose the country of asylum—a stance that might align
with concerns over “forum shopping”—his judgment also recognized that
there is no obligation under the Refugee Convention requiring refugees to apply
for asylum in the first country they enter. This interpretation underscores
that the Convention does not preclude secondary movements, especially when
linked to legitimate causes such as seeking effective protection or family
reunification.
Effective protection within the
context of Articles 31(1) and 33(1) is crucial. The concept revolves around
ensuring that a state can offer genuine safety and uphold the basic human
rights of refugees. This includes protection from refoulement, access to fair
asylum procedures, and the absence of persecution or inhumane treatment. The
Safe Third Country (STC) and First Country of Asylum (FCA) concepts are often
invoked in discussions about refugee movements. However, the distinction
between these two is largely theoretical. Both concepts require that the third
country or the first country of asylum offers effective protection. This means
that in the third country concerned, refugees must not be subjected to refoulement
or face threats to their life or freedom. The adequacy of protection in the
third country must be assessed to ensure compliance with these core principles,
ensuring that refugees are not transferred to situations where their
fundamental rights may be at risk.
Commentator Paul Weis,
analyzing the travaux préparatoires of the 1951 Refugee Convention and Article
33(1), concluded that the words “in any manner whatsoever” indicate
that Article 33(1) applies to non-admittance at the frontier. This interpretation
underscores that an asylum seeker can claim protection under Article 33(1) if
they fear persecution or if their physical safety or freedom is endangered in a
country where they previously stayed, even before crossing the border. The non-refoulement
applies universally, prohibiting rejection at the border in such cases.
This understanding is further
supported by the absence in Article 33 of any requirement for lawful presence
or explicit reference to illegal entry, distinguishing it from other provisions
of the Convention, such as Article 31. The absence of such conditions
highlights that the protection against refoulement applies broadly to all
refugees, regardless of their mode of entry or presence. Other commentators
such as
Chetail agree with Weis, suggesting that protection against refoulement,
grounded in positive obligations, may derive from the principle of non-refoulement
itself. This principle obliges states to admit persons at immediate risk of
fundamental rights violations, ensuring that non-admission does not have the
same effect as refoulement.
While the 1951 Refugee Convention
does not explicitly regulate access to asylum procedures or territory, the
principle of non-refoulement inherently requires that refugees not be returned
to situations where their life or freedom would be threatened. The refugee
definition applies specifically to individuals outside their country of
nationality. In contrast, IHRL imposes no such geographical limitation, and non-refoulement,
from a human rights perspective, applies to any person under another state’s
effective control, regardless of location. While IRL and IHRL operate as
distinct legal regimes, their objectives often intersect. For example,
individuals may be protected from expulsion under human rights law without
necessarily qualifying as refugees under the 1951 Refugee Convention. The
extraterritorial application of the non-refoulement principle, recognized in
both IRL and IHRL, extends states’ obligations to prevent the return of
individuals to harm, even when they are not within the state’s territory. This
principle has been extensively developed in case law, particularly by the
European Court of Human Rights (ECtHR) in cases such as Hirsi Jamaa v. Italy,
where the Court confirmed that effective control triggers non-refoulement
obligations.
Balancing ‘Good Cause’ and
‘Coming Directly’ Under Article 31(1)
This section expresses
reservations about the 2017 UNHCR interpretation of “good cause”
under Article 31(1) as narrowly focused on the nature of illegal entry, arguing
that this view is inconsistent with the provision’s negotiating history and
broader judicial interpretations.
In 2017, UNHCR published a research
paper that interprets the “good cause” criterion in Article 31(1)
as primarily relating to the nature of illegal entry—specifically, the need to
demonstrate a “good cause” for entering a country illegally. The
publication argues that “the good cause requirement should not be used to
rehearse arguments relating to safe third countries as these matters are
examined under the ‘coming directly’ element.” While this interpretation
is plausible, it appears inconsistent with the negotiating history of Article
31(1) and with interpretations from international courts.
Authoritative figures, such as Goodwin-Gill,
have challenged the conventional understanding of “good cause” in the
context of irregular entry under Article 31(1). Goodwin-Gill argues that the
“good causes” criterion should not be confined solely to the manner
of illegal entry. Instead, it may encompass a broader range of reasons for
seeking asylum in a particular country, including family reunification or
systemic deficiencies in transit countries. These reasons reflect the
Convention’s humanitarian purpose and recognize the complex realities refugees
face during their flight to safety.
The relationship between
“good cause” and “coming directly” has been a matter of
debate. One interpretation is that these are separate, non-overlapping
conditions, meaning “good cause” cannot override the “coming
directly” requirement. However, according to me scholars like Goodwin-Gill
argue that “good cause” should inform the application of “coming
directly,” allowing exceptions when transit countries fail to provide
effective protection or there is no meaningful link. This perspective aligns
with the Convention’s humanitarian objectives, ensuring that refugees are not
penalized for seeking safety where protection was unavailable en route.
While Article 31(1) does not
allocate responsibility for asylum applications, its principles shape the
treatment of secondary movements. For example, family bonds or other relevant
links in alternative destinations are recognized in regional frameworks, such
as the EU’s Dublin Regulation, which prioritizes family links, and the
“safe third country” concept, which requires a meaningful connection
beyond mere transit. In 2020 in the FMS
case the CJEU also clarified that mere transit cannot be intended as meaningful connection for the purpose of STC concept
application. These interpretations reinforce the need to assess secondary
movements within a legal framework that respects refugees’ rights. Most
recently another key aspect was clarified in the CJEU judgment in Elliniko Symvoulio
where it is established that if the third country designated as generally safe
by a Member State does not in fact admit or readmit the applicants for
international protection concerned, that Member State cannot reject their
applications for international protection as inadmissible on the basis of
Article 33(2)(c) of the Asylum
Procedures Directive (APD).
Judicial decisions, such as FMS,
provide critical clarification on the application of “good cause” and
“coming directly,” supporting broader interpretations that prioritize
refugee rights and systemic fairness. Such decisions are all the more important
during a time EU Member States are exploring
the possibility to remove the meaningful connection requirement from the
newly adopted Asylum Procedure Regulation. In the same vein, Prof.
Steve Peers critiques the revised Dublin rules for narrowing the scope and
effectiveness of appeal rights, which, as he notes, marks a shift ‘towards a
purely intergovernmental framework’ rather than one that individuals can
effectively engage with to enforce their rights. This procedural limitation
highlights the systemic barriers refugees face in seeking fair assessments,
particularly in the context of systemic deficiencies in transit countries. His
critique underscores the necessity of maintaining procedural safeguards to
ensure fairness and uphold refugees’ rights under Article 31(1). The FMS
ruling aligns with the notion of “good cause” under Article 31(1),
which advocates for flexibility and fairness in determining when secondary
movements are justified. It supports the argument that a lack of substantive
ties in a transit country may justify onward movement. The FMS case
underscores the importance of individual assessments and procedural safeguards.
This aligns with the broader goal of ensuring that Article 31(1) is applied in
a way that prioritizes fairness and refugees’ rights. While FMS
primarily interprets EU law, it indirectly supports a broader understanding of
“good cause” and “coming directly” by emphasizing
meaningful connections and rejecting procedural shortcuts like reliance on mere
transit.
Protecting Family Unity in the
Context of APD and Dublin Regulation Interplay
Now, we turn to the interplay
between EU asylum law and IRL, particularly how they address family unity,
meaningful connections, and procedural safeguards in allocating responsibility
for asylum seekers. The EU asylum system closely reflects the principles of
IRL, especially those enshrined in the 1951 Refugee Convention. This alignment
provides a valuable framework for examining how EU rules incorporate and
interpret these international standards, with a particular focus on family
links and responsibility allocation.
Article 38(2)(a) of APD
stipulates that the application of the safe third country concept must consider
a connection between the asylum seeker and the third country. This connection,
which could include family ties, must be reasonable for the applicant to
relocate to that country. The directive itself explicitly states that the
presumption of safety in a third country can be rebutted by the applicant,
emphasizing the importance of individual assessments to ensure access to asylum
procedures. Misapplication of admissibility rules could unjustly deny access to
appropriate asylum procedures, thereby impacting the applicant’s fundamental
rights.
The Dublin
Regulation, referenced by Article 38 of the APD, assigns responsibility for
examining asylum applications through a comparative test. This test prioritizes
family links and other meaningful connections to determine the most suitable EU
Member State to handle the asylum claim. However, the regulation also considers
other factors, such as the first EU state of entry, which can play a
significant role in responsibility allocation. According to EU law, family
unity remains a crucial factor, and decisions should aim to preserve these ties
wherever possible.
The application of the APD
procedure, particularly the “safe third country” rule under Article
33(1), has been interpreted differently in recent case law. On 17 March 2016,
the CJEU in the Mirza
case addressed the interplay between the STC rule under Article 33 of the
recast APD and the Dublin Regulation. The Court ruled that a Member State may
apply the STC rule to declare an application inadmissible, even if it is not
the Member State responsible for examining the claim under the Dublin Regulation.
This judgment reflects an interpretation of the Dublin Regulation’s explicit
provisions regarding STC rather than a general approach to inadmissibility.
While the Mirza judgment
interprets EU law as it stands, in my view concerns remain about its
implications for procedural fairness and fundamental rights. For example, the
judgment permits Member States to invoke the STC rule without fully determining
responsibility under the Dublin Regulation, which could undermine the
structured allocation of responsibility designed to safeguard family unity and
other meaningful connections. EXCOM
Conclusion 15 emphasizes that asylum should first be requested in a state
where the applicant has a connection, such as family ties, and this requires a
comparative test, not a non-contextual application of inadmissibility rules.
Similarly, Article 31(1) of the 1951 Refugee Convention recognizes family links
as a “good cause” for onward movements, highlighting that strict and
non-comparative procedures risk penalizing refugees contrary to international
law.
In my opinion, the Mirza
judgment illustrates a tension between procedural flexibility for Member States
and the need for structured, rights-based responsibility allocation. While the
judgment aligns with EU law’s textual framework, the absence of a comparative
test in applying the STC rule risks decisions that fail to account for family
unity or systemic deficiencies in protection. To strengthen procedural safeguards,
inadmissibility decisions under Article 33(1) APD should ideally follow
responsibility determinations under Article 3 of the Dublin Regulation.
Although this sequencing is not explicitly required by the regulation, it
reflects a normative approach that aligns better with the principles of family
unity and effective protection embedded in both EU law (Fundamental Rights
Charter) and IRL.
This cross-referencing aims not
to override the Dublin responsibility criteria, principally to safeguard family
unity (Art. 8 DRIII) criteria or the humanitarian clause (Art. 17 DRIII), which
can and should be used to ensure family unity once a person gains access to the
EU. The ECtHR has affirmed the proactive obligations under Article 8 ECHR in
cases such as Senigo
Longue and Tanda-Muzinga, which must be read in conjunction with the
primacy of the Best Interests of the Child and the respect of family unity.
This reiterates the positive duties of states to proactively and expeditiously
comply with the procedural and substantive elements of Article 8 ECHR, both as
an autonomous right and as part of an instrument of secondary legislation.
Doing otherwise would undermine family unity (including for dependency
reasons), with inadmissibility taking precedence over it.
Currently, it is possible for the
principle of non-penalization under Article 31(1) of the 1951 Refugee
Convention to be undermined in the EU context. Article 38(1)(e) of the recast
APD allows an applicant to be sent to a third country outside the EU where
there is a “possibility” to request refugee status. However, the
directive requires that a connection between the applicant and the third
country be established, as outlined in Article 38(2)(a). Case law further
clarifies that mere transit through a third country is insufficient to meet
this requirement, emphasizing the need for a meaningful connection.
Additionally, the Dublin
Regulation governs responsibility allocation for examining asylum claims among
EU Member States and does not directly apply to transfers to third countries
under the APD. While the Dublin Regulation does not explicitly mandate a
“comparative test,” its criteria prioritize factors such as family
unity and the applicant’s meaningful links to a Member State. A rigorous
application of these principles ensures that inadmissibility decisions under Article
33(1) of the APD do not override the safeguards enshrined in the Dublin
Regulation and EU asylum law as a whole.
Conclusion: Balancing Control
and Protection
Article 31(1) of the 1951 Refugee
Convention does not prohibit the diversion of asylum applications to third
countries willing and able to provide effective protection, even in the absence
of significant links to those countries. However, EXCOM Conclusion 15 and UNHCR
guidelines emphasize that the principle of non-penalization under Article 31(1)
limits such transfers when meaningful connections or effective protection are
lacking. Justifications for secondary movements include insufficient protection
in transit countries, refusal of protection, or strong family links in another
state, which are recognized as “good cause” for onward movement.
A comparative test is necessary
to evaluate the applicant’s connections to third countries versus their ties to
other states, including within the EU under the Dublin Regulation. Effective
protection, meaningful links, and family unity extend beyond non-refoulement,
shaping a state’s discretion in allocating responsibility for asylum claims.
While Article 31(1) does not establish a positive obligation to admit or always
justify secondary movements, it imposes constraints on measures that ignore
these factors, as such restrictions may constitute penalties or harm
integration prospects.
The interpretation of Article
31(1) requires a balance between state sovereignty and refugee protection. States
have the right to control borders but must also honour international
obligations, ensuring access to effective protection and family unity. Refugees
should not face penalties for irregular entry or secondary movements driven by
genuine humanitarian reasons. By applying Article 31(1) with sensitivity to
these realities, states can uphold the 1951 Refugee Convention’s principles
while maintaining humane and just asylum policies.