{"id":24742,"date":"2025-04-28T08:00:00","date_gmt":"2025-04-28T06:00:00","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=24742"},"modified":"2025-04-29T09:46:53","modified_gmt":"2025-04-29T07:46:53","slug":"non-penalization-under-threat","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/non-penalization-under-threat\/","title":{"rendered":"Non-Penalization Under Threat"},"content":{"rendered":"

In February 2025, the United Kingdom (UK) introduced\u00a0new guidance<\/u><\/a> for its immigration staff regarding the \u201cgood character\u201d requirement in its citizenship applications. Under the new guidance, people who have travelled to the UK \u201cwithout a required valid entry clearance or electronic travel authorisation\u201d are likely to be refused citizenship in the future. This includes those who travelled to the UK on small boats and those who entered the UK concealed in vehicles. The change significantly affects refugees, as they often have to resort to irregular means of entry to seek asylum.\u00a0A strong argument can be made that it violates Article 31(1) of the Refugee Convention.<\/p>\n

 <\/p>\n

Article 31(1) of the Refugee Convention<\/strong><\/p>\n

Article 31(1) of the\u00a01951 Refugee Convention<\/u><\/a> states that refugees cannot be punished for irregular entry so long as they meet the three conditions of \u201cdirectness\u201d, \u201cpromptness\u201d and \u201cthe showing of good cause.\u201d This is in recognition of the fact that individuals who flee life-threatening situations often do not have any other legal or safe pathways to seek asylum. As highlighted<\/u><\/a> by the UNHCR, many refugees face impediments in accessing or retrieving the appropriate travel documentation required to travel to another country.<\/p>\n

 <\/p>\n

The UNHCR and the Principle of Non-Penalization<\/strong><\/p>\n

Lord Hanson of Flint, Minister of State at the Home Office,\u00a0argued<\/u><\/a>\u00a0that the purpose of the updated guidance is to reduce illegal immigration and to ensure that people enter the UK legally. He also claimed that the updated guidance is compliant with the Refugee Convention because \u201cnothing in the proposals\u2026stops any individual applying for British citizenship, however they have arrived in the United Kingdom.\u201d However, several UNHCR publications suggest otherwise.<\/p>\n

Firstly, the UNHCR\u2019s 1984 Note on International Protection<\/u><\/a> and its latest\u00a0G<\/u>uidance <\/u>N<\/u>ote<\/u><\/a>\u00a0on non-penalization make it clear that measures that are punitive, discriminatory, retributive, and deterrent in character are prohibited under Article 31(1) of the Refugee Convention. Secondly, the Guidance Note and UNHCR Executive Committee Conclusion No. 22<\/u><\/a> further clarify that the penalties prohibited by Article 31(1) of the Refugee Convention include any criminal or administrative measure imposed by a State because of a refugee\u2019s irregular entry that affects them unfavorably.<\/p>\n

 <\/p>\n

How the UK\u2019s New Citizenship Requirements Violate Article 31(1)<\/strong><\/p>\n

States that host refugees are not obligated to award them citizenship. Citizenship is a sovereign prerogative of States, and States may establish standards or requirements for citizenship. However, based on the UNHCR\u2019s interpretations of Article 31(1), it can be argued that the UK government’s decision to change its citizenship requirements in such a way that those who travel to the UK irregularly are \u201cnormally\u2026refused citizenship\u201d, violates Article 31(1) of the Refugee Convention. This is because the change is an administrative measure that affects refugees unfavourably because of how they entered the United Kingdom. To quote immigration barrister and author\u00a0Colin Yeo<\/u><\/a>, \u201cdenial of citizenship for illegal entry is penalisation,\u201d\u00a0and the Refugee Convention prohibits penalization.<\/p>\n

 <\/p>\n

Legal Challenges to the New Guidance<\/strong><\/p>\n

A young Afghan refugee who was due to apply for British citizenship on March 1, 2025 has already brought a\u00a0legal challenge<\/u><\/a> against the government\u2019s new guidance. Previously, he would have met the good character requirement of the citizenship application.\u00a0According to the Guardian<\/u><\/a>, he has no criminal record and has complied with all immigration rules while residing in the UK. Additionally, he has a good command of English and plans to train as a mechanical engineer to contribute to British society and the economy. However, because he was smuggled into the UK in the back of a truck when he was 14, the new guidance makes it unlikely that his citizenship application will be approved.<\/p>\n

It is likely that his case is the first of many that will be brought against the UK government. For instance, Briddick<\/u><\/a>\u00a0has noted that individuals affected by the new guidance may be also able to bring cases before the European Court of Human Rights (ECtHR), specifically drawing on\u00a0Hode and Abdi v UK <\/em><\/u>(2012)<\/u><\/a>.\u00a0In this case\u00a0the ECtHR reiterated that discrimination against an individual because of their status as a refugee is prohibited under Article 14 of the European Convention on Human Rights, as refugee status does not \u201centail an element of choice.\u201d<\/p>\n

 <\/p>\n

Concluding Remarks<\/strong><\/p>\n

While States have the authority and responsibility to manage and control entry to their territory, and to establish requirements and standards for citizenship, they are also obligated to adhere to their obligations under international law. The UK government should either revise or eliminate its new guidance for immigration staff to ensure that its policies are aligned with its international obligations under the Refugee Convention. Refugees and asylum seekers should not\u00a0be penalized\u00a0for how they resorted to seeking safety.<\/p>\n","protected":false},"excerpt":{"rendered":"

In February 2025, the United Kingdom (UK) introduced\u00a0new guidance for its immigration staff regarding the \u201cgood character\u201d requirement in its citizenship applications. Under the new guidance, people who have travelled to the UK \u201cwithout a required valid entry clearance or electronic travel authorisation\u201d are likely to be refused citizenship in the future. This includes those […]<\/p>\n","protected":false},"author":35,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[7592,7591,3783],"authors":[7590],"article-categories":[6000],"doi":[],"class_list":["post-24742","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-immigration-law","tag-non-penalization","tag-refugee-law","authors-elisha-gunaratnam","article-categories-article"],"acf":{"subline":"The United Kingdom\u2019s New Citizenship Requirement Punishes Refugees "},"meta_box":{"doi":"10.17176\/20250429-004832-0"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/24742","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/35"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=24742"}],"version-history":[{"count":2,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/24742\/revisions"}],"predecessor-version":[{"id":24746,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/24742\/revisions\/24746"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=24742"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=24742"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=24742"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=24742"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=24742"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=24742"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}