Paolo Biondi
Photo credit: Mstyslav Chernov, 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.
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