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Part VI Refugee Rights and Realities, Ch.51 Non-penalization and Non-Criminalization

Cathryn Costello, Yulia Ioffe

From: The Oxford Handbook of International Refugee Law

Edited By: Cathryn Costello, Michelle Foster, Jane McAdam

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 23 September 2021

Subject(s):
Asylum — Refugees

This chapter reviews the protections under international law which purport to secure refugees’ right to seek asylum by protecting them from penalization. Once a mere administrative matter, irregular migration and presence are now often made a crime in domestic laws, often with additional criminal offences such as for failure to cooperate in migration and asylum proceedings, or failure to have or produce identity documentation. In addition to criminalization, States also have meted out increasingly harsh treatment to those who breach their migration controls, irrespective of whether they are refugees or not. The chapter then analyses article 31 of the Refugee Convention, the provision which purports to protect refugees from penalization for ‘illegal entry and stay’. It argues that non-penalization reflects one of the objects and purposes of the Refugee Convention. The chapter also explores whether international human rights law substantively limits States’ ‘right’ to criminalize irregular entry and stay, and whether non-penalization of irregular entry or stay may be an emerging general principle of law.

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