Non-Penalization Under Threat

In February 2025, the United Kingdom (UK) introduced new guidance for its immigration staff regarding the “good character” requirement in its citizenship applications. Under the new guidance, people who have travelled to the UK “without a required valid entry clearance or electronic travel authorisation” 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. A strong argument can be made that it violates Article 31(1) of the Refugee Convention.

Article 31(1) of the Refugee Convention

Article 31(1) of the 1951 Refugee Convention states that refugees cannot be punished for irregular entry so long as they meet the three conditions of “directness”, “promptness” and “the showing of good cause.” 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 by the UNHCR, many refugees face impediments in accessing or retrieving the appropriate travel documentation required to travel to another country.

The UNHCR and the Principle of Non-Penalization

Lord Hanson of Flint, Minister of State at the Home Office, argued that 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 “nothing in the proposals…stops any individual applying for British citizenship, however they have arrived in the United Kingdom.” However, several UNHCR publications suggest otherwise.

Firstly, the UNHCR’s 1984 Note on International Protection and its latest Guidance Note on 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 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’s irregular entry that affects them unfavorably.

How the UK’s New Citizenship Requirements Violate Article 31(1)

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’s 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 “normally…refused citizenship”, 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 Colin Yeo, “denial of citizenship for illegal entry is penalisation,” and the Refugee Convention prohibits penalization.

Legal Challenges to the New Guidance

A young Afghan refugee who was due to apply for British citizenship on March 1, 2025 has already brought a legal challenge against the government’s new guidance. Previously, he would have met the good character requirement of the citizenship application. According to the Guardian, 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.

It is likely that his case is the first of many that will be brought against the UK government. For instance, Briddick has 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 Hode and Abdi v UK (2012). In this case the 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 “entail an element of choice.”

Concluding Remarks

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 be penalized for how they resorted to seeking safety.