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Briefing: What rights do refugees have under the Refugee Convention?

Briefing: What rights do refugees have under the Refugee Convention?

Asylum lawyers like me tend to focus on just one clause of the Refugee Convention: the definition of a refugee. This is the gateway to formal recognition as a refugee and is therefore of vital importance to any person seeking asylum. From this definition, set out at Article 1A(2) of the convention, all the other rights of a refugee flow.

But what are those other rights? This briefing focuses on the rights which are explicitly conferred on refugees by the Refugee Convention itself, at Articles 2 to 34. It is important to make clear that refugees are humans and they also therefore benefit from human rights protections in other international conventions and domestic laws, like the European Convention on Human Rights, the International Covenant on Civil and Political Rights and the Human Rights Act here in the UK.

The Refugee Convention effectively predates most of these human rights instruments. It is derived to a significant extent from legal instruments before, during and immediately after the Second World War and it was only the second convention agreed upon by the newly established United Nations.

Scheme of rights

Different degrees of rights are conferred on refugees at different stages of their attachment to the state of refuge. As Hathaway puts it in his definitive work on refugee rights, The Rights of Refugees Under International Law:

The refugee rights regime is not simply a list of duties owed by state parties equally to all refugees. An attempt is instead made to grant enhanced rights as the bond strengthens between a particular refugee and the state party in which he or she is present. While all refugees benefit from a number of core rights, additional entitlements accrue as a function of the nature and duration of the attachment to the asylum state.

Several articles apply to refugees generally without any residence requirement at all, such as Article 3 on non-discrimination and Article 33 on non-refoulement. Other articles apply to refugees within the territory of a country, such as Article 4 on freedom of religion or Article 27 on identity papers. Article 25 on administrative assistance applies to refugees residing in a territory. A further tranche of articles apply to refugees lawfully in the territory of a country, such as Article 18 on self-employment and Article 26 on freedom of movement. Some articles apply where the refugee is lawfully staying in a country, such as the Article 15 right of association or Article 17 right to wage earning employment. Others apply to refugees habitually resident in a country, including Article 14 on artistic rights and industrial property.

The various rights are not ordered within the Refugee Convention by the degree of attachment and the use of language largely appears chaotic to a casual reader. Goodwin-Gill and McAdam observe that on this issue “there is little consistency in the language of the Convention, be it in English or French”. The reality is that the drafters of the Convention considered that different rights should attach at different times but the language deployed is variable. There is a broad structure to be discerned, though.

The United Nations refugee agency, UNHCR, identifies four groups of rights based on residence: rights of all asylum seekers and refugees, regardless of status or length of stay; rights of asylum seekers and refugees lawfully in the country (meaning from the moment of application for refugee status); rights of refugees lawfully staying in the country; and rights of refugees habitually resident.

Hathaway proposes a slightly different scheme to produce five progressive stages of attachment:

  1. Subject to a state’s jurisdiction
  2. Physical presence
  3. Lawful or habitual presence
  4. Lawful stay
  5. Durable residence

By discerning a structure, a purpose may also be divined: immediate protection and gradual assimilation. In turn, this can help provide guidance as to the interpretation of the terms of the Refugee Convention.

Rights of protection

One notable and very important right is missing completely from the Refugee Convention: a right of asylum, in the sense of a right to enter a state in order to receive asylum.

Article 14 of the Universal Declaration of Human Rights states that everyone “has the right to seek and enjoy in other countries asylum from persecution”. This is not the same as a right to receive asylum or a right to enter a country for the purpose of seeking asylum.

At an international level, a right not to be rejected at a frontier was included in the non-binding Declaration on Territorial Asylum in 1967 but an attempt to enshrine this in a binding convention ended in failure in 1977. The New York Declaration for Refugees and Migrants of 2016 states that “[w]e reaffirm respect for the institution of asylum and the right to seek asylum”. In reality, there is no enforceable right in international law to enter a country to claim asylum.

In contrast, the American Declaration of the Rights and Duties of Man 1948 and the American Convention on Human Rights 1969 do include such a right, at Articles 27 and 22(7) respectively.

The closest the Refugee Convention comes to a right of asylum are the rights not to be penalised for illegal entry in certain circumstances and the right not to be subjected to refoulement to face persecution at Articles 31 and 33 respectively. These do not amount to a right of entry for the purpose of claiming asylum or a right not to be expelled from a territory because, for example, a signatory state is not prohibited from refusing entry to a refugee as long as that refusal does not cause the refugee to be persecuted. Nor is a signatory state explicitly prohibited in all circumstances by the Refugee Convention from removing a refugee to a safe country.

This omission from international law has permitted the evolution of the post Cold War policy of non-entrée of refugees to contain them in or near their country of origin by means of visa controls and carrier sanctions. It also enables some governments to pursue policies which are clearly contrary to the intentions of the convention, such as the forced removal of refugees to other countries.

Right of non-penalisation

Although there is no right to asylum in the Refugee Convention, there is a right not to be penalised for illegal entry. This is of considerable importance to refugees. A refugee fleeing persecution will rarely have the time or opportunity, and may not have the resources, to be able to comply with the niceties of immigration laws.

The text of Article 31, the right of entry without penalisation, requires close analysis:

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 authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

Firstly, the potentially broad word “penalties” is used. This undoubtedly applies to criminal sanctions for illegal entry and to associated offences such as reliance on false documents for the purposes of entry. It has also been held that, providing there was no financial benefit involved, “a state cannot impose a criminal sanction on refugees solely because they have aided others to enter illegally in their collective flight to safety”.

The use of the word “penalties” rather than an explicit reference to criminalisation strongly suggests that other disadvantages falling short of criminal sanction must also be prohibited. Goodwin-Gill and McAdam, drawing on the travaux préparatoires and the underlying purpose of the Refugee Convention, argue that the word “penalties” includes “any seriously prejudicial measures that have the effect of putting the refugee at a disadvantage in the enjoyment of economic, social and integration rights, when compared to other recognised refugees”.

Denying or delaying access to the refugee status determination process has been held to amount to such a penalty by the Canadian Supreme Court, for example (B010 v Canada [2015] SCC 58, at paragraphs 57 and 63). The United Kingdom’s proposal to create two different classes of recognised refugees with different rights based on their means of arrival has been widely argued to be incompatible with Article 31 (and with other articles, given the requirement to afford recognised refugees certain other rights).

A literal and geographical meaning of the words “coming directly from a territory where their life or freedom was threatened” has been argued to mean that travel through or stay in a third country to the country of refuge will disqualify a refugee from relying on this protection. Consideration of the travaux préparatoires from the time the Refugee Convention was being prepared and negotiated reveals that, as Lord Hope commented in the case of Asfaw [2008] UKHL 31, “there was universal acceptance that the mere fact that refugees stopped while in transit ought not deprive them of the benefit of the article”. Legal scholars including Weis, Grahl-Madsen, Goodwin-Gill and Hathaway argue that some element of choice is open to those claiming asylum about where they do so and that the emphasis should be on the “show good cause” requirement.

It is this latter view which has been accepted in case law: it is widely agreed that short stays in third countries do not deprive a refugee of the protection of the non-penalisation clause. The extent to which a refugee may stay in countries on their way to a final country of asylum is otherwise unclear, however.

The length of stay, the reasons for delaying there, whether the time was spent trying to acquire the means of travelling on and whether the refugee sought or found protection there have all been said to be relevant considerations. The requirement that a refugee “present themselves without delay to the authorities” clearly requires refugees to come forward promptly if they are to benefit from the non-penalisation clause. This does not require a person to claim asylum at absolutely the first conceivable opportunity, such as at passport control on arrival, but it does require the refugee to come forward of their own volition if the opportunity has reasonably presented itself. It would be contrary to the language and purpose of the Refugee Convention to impose a mechanistic deadline for making a claim for refugee status.

Right of non-refoulement

The principle of non-refoulement has been described as the cornerstone of international refugee protection. The right of non-refoulement is the right of a refugee not to be “pushed back into the arms of their persecutors”. It not only lies at the heart of the Refugee Convention but has also been extended to international human rights law and has been argued to have become a customary rule of international law.

The text of Article 33 provides:

1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.

This right applies to both expulsion once a refugee has already entered the territory and also to return or refoulement, which by implication is something more. The word “refouler” is used in the Refugee Convention and in refugee law generally instead of the English-language term “return” because the French term more clearly denotes that indirect return is prohibited as well as direct return. This is reinforced by the inclusion of the words “in any manner whatsoever”.

For example, indirect return by “chain” refoulement might occur by returning a refugee to a third country which then returns the refugee to another country to face persecution, perhaps directly or perhaps by means of misapplication of refugee law or failures in its refugee status determination process. It might also occur by way of measures which make a refugee’s life so intolerable they are effectively forced to return to face persecution, sometimes referred to as “disguised” or “constructive” refoulement.

Here’s my attempt to explain these ideas to Parliament’s Joint Committee on Human Rights in June 2022:

The duty applies not just to removal or extradition from the territory but also to situations of non-admission and rejection once the border is reached: a refugee cannot be denied entry if the effect is that they will be exposed to a threat to life or freedom.

There is notably no requirement in Article 33 that the refugee be physically or lawfully present before the obligation is engaged.

Nevertheless, the right of non-refoulement does not amount to a right to enter a country and does not impose an obligation on states to admit refugees. A refugee can be denied entry or turned back, for example to a safe third country, if there is no threat to life or freedom in doing so. Nor is the right of non-refoulement a right of non-expulsion for a refugee: see immediately below.

Despite these caveats, Article 33 still provides powerful protection for the refugee who is able to reach the jurisdiction of a country of refuge: “if a refugee has succeeded in eluding the frontier guards, he is safe; if he has not, it is his hard luck” (Neremiah Robinson).

Right to stay

Refugees who are “lawfully in” the territory of a country have a right to stay there. Article 32 provides that they may not be expelled “save on grounds of national security or public order”. In the event of an attempt to expel, safeguards for refugees are imposed, meaning that “due process of law” must be followed, refugees are entitled to submit evidence (absent “compelling reasons of national security”) and an appeal process is mandated along with the right to representation. In the event that an expulsion order is made, the refugee is to be allowed time to seek legal admission to another country.

The effect of Article 32 is that “once a refugee has been admitted or his presence has been legalised and so long as entitlement to refugee status continues, he is entitled to stay indefinitely in the receiving state” (ST Eritrea).

But unlike Article 33, which applies to all refugees within a state’s jurisdiction, we can see that Article 32 only applies to a subset of refugees. UNHCR and Hathaway argue that it is registering an asylum application that renders a refugee “lawfully” present. Goodwin-Gill and McAdam suggest that a grant of temporary status may be required. The United Kingdom Supreme Court adopted the latter approach in the case of ST Eritrea.

The distinction between non-refoulement and non-expulsion obligations becomes particularly relevant where a state proposes to remove refugees to a safe third country, whether for the purpose of their claim to refugee status being processed or otherwise. This is sometimes referred to as extra-territorial or off-shore processing. Such removal is not barred by the Article 33 non-refoulement obligation, assuming the country concerned is genuinely safe and there is genuinely no risk of refoulement, including chain or constructive refoulement via other countries (see above).

Whether such assumptions can really be made in practice is highly questionable given the probable context of many third country arrangements. The refugees in question would likely be detained or otherwise isolated in a country with few resources in order to prevent them from resuming their journey and they would likely be denied their other rights under the Refugee Convention. The refugee status determination procedure to which the person is exposed might be woefully inadequate, with no interpreters or legal representation for example.

Aside from refugee law, a real risk of occurrence of future human rights abuses in the ‘safe’ country would bar removal there under separate provisions of international human rights law.

In contrast to the position under Article 33, removal to a safe third country is prohibited by the Article 32 non-expulsion obligation, subject to the caveat of national security or public order. On the UNHCR and Hathaway analysis, Article 32 is engaged as soon as the refugee makes an application for recognition as a refugee and is therefore protected from removal to a safe third country for so-called offshore processing. On the analysis of Goodwin-Gill and McAdam and the UK Supreme Court, though, Article 32 only protects a refugee once officially recognised as a refugee.

Rights of integration

The Refugee Convention imparts a range of rights intended to enable refugees to integrate and build new lives for themselves in their country of refuge. This includes:

  • the right at Article 3 not to discriminate between refugees, meaning that some refugees may not be treated worse than others
  • the right at Article 4 to freedom of religion and religious education of their children
  • the rights at Articles 5, 7, 8, 25 and 29 not to be disadvantaged in various ways including by the imposition of additional fiscal charges or taxation
  • the right at Article 12 to recognition of personal juridical status
  • the right at Article 16 of access to courts and legal assistance
  • the rights at Articles 17, 18 and 19 to work and self-employment
  • the rights at 15, 20, 21, 23 and 24 to join a trade union, welfare, housing, social security and labour law protection
  • the right at Article 22 to education
  • the rights at Articles 25 and 27 to administrative assistance and identity papers
  • the rights at Articles 13, 14 and 30 to property and its transfer
  • the rights at Articles 26 and 28 to domestic and international mobility
  • and, finally, the right at Article 34 to “facilitate the assimilation and naturalisation of refugees” including by making every effort to “expedite naturalisation proceedings and to reduce as far as possible the charges and costs of such proceedings”

These rights are set out in the table below with reference to the level of attachment required before the relevant right is engaged and the degree to which the right is conferred on a refugee equivalent to which comparator group.

LEVEL OF ATTACHMENT LEVEL OF EQUIVALENCE
  Absolute Equivalent to citizens Equivalent to most favoured foreigners Equivalent to foreigners generally
Within state jurisdiction Art 3: non-discrimination
Art 12: personal status
Art 16(1): access to court
Art 30: transfer of assets
Art 33: non-refoulement
Art 34: Facilitate naturalisation
Art 16(2): legal assistance
Art 20: Access to rations
Art 22(1): Elementary education
Art 29: Charges and taxation
  Art 7: general right not to be treated worse than foreign nationals
Art 13: acquisition of property
Art 22(2): Secondary and tertiary education
Physical presence Art 25: administrative assistance
Art 27: identity papers
Art 31: non-penalisation for illegal entry
Art 4: freedom of religion    
Lawful presence Art 32: non-expulsion     Art 18: self-employment
Art 26: freedom of movement
Lawful stay Art 28: Travel documents Art 14: Artistic rights and industrial property
Art 23: Public relief
Art 24: Labour legislation and social security
Art 15: Right of association
Art 17: Wage-earning employment
Art 19: Liberal professions
Art 21: Housing
Durable residence       Art 7(2): exemption from legislative reciprocity
Art 17(2): exemption from labour market restrictions

For references and a fuller account, see Refugee Law by Colin Yeo, available from Bristol University Press:

Want to really get to grips with refugee law? Concise and readable, my textbook walks you through everything from well-founded fear to refoulement.

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.