What is "illegal immigrant"? ! Asylum seekers are not illegal immigrants!
- Justice
- Dec 26, 2024
- 5 min read
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In fact, different countries have different definitions for this topic. But overall, refugees/asylum seekers should not be categorized as "illegal immigrants" in any country, especially the signatories of the United Nations Refugee Convention. So far, a total of 149 countries in the world are signatories to the Refugee Convention (including the United States, Britain, Australia, Canada and New Zealand, European Union countries, and even China, Russia and some Asian, African and Latin American nations). The signatories first promised the United Nations to protect the human rights, privacy, health and dignity of refugees/asylum seekers, but the reality is often unsatisfactory. Some rogue governments simply do not abide by any laws and regulations, imprison, suppress, humiliate and torture refugees, use asylum seekers as bargaining chips for political gains and abuse them, resulting in serious human rights disasters. Then, it is necessary for us to remind the United Nations and the United Nations Human Rights Commission about the atrocities committed by these countries should be exposed to the public, and suggest UN to cancel economic aid and assistance to these nations, denounce them in the international community!
Article 31 of the United Nations Refugee Convention clearly states that "The signatories cannot punish asylum seekers for entering or living without permission, or restrict their freedom of movement..."
In the U.S., illegal entry is not a ground of inadmissibility for asylum applicants, unlike many other categories of applicants for immigration benefits, people seeking asylum in the U.S. are not barred by having made an illegal entry; for example, by having snuck across the U.S. border. Huge numbers of past asylum applicants found that entering the U.S. without permission was their only or best way to get to safety and flee the persecution they faced at home.
The language of the Immigration and Nationality Act says "any alien" can apply for asylum if "physically present in the United States . . . irrespective of such alien's status." (See I.N.A. Section 208(a).)
If you used false documents (such as a fake green card or visa or passport) or made false statements to a U.S. government official in order to gain entry into the United States, it should not be held against you when applying for asylum if your reason was connected to your flight from persecution. (See, for example, a court case called Mamouzian v. Ashcroft, 390 F.3d 1129, 1138 (9th Cir. 2004).)
As one court in America noted, if illegal entry were an independent reason to deny asylum, “virtually no persecuted refugee would obtain asylum.” Wu Zheng Huang v. INS, 436 F.3d 89, 100 (2d Cir. 2006).
Fortunately, when you apply for your green card as an asylee, illegal entry will not pose a problem. The Immigration and Nationality Act (I.N.A.) contains no requirement that asylees entered the U.S. lawfully in order to adjust status.
Comments that are more directly in point are to be found in The Rights of Refugees under International Law (2005) by James C Hathaway. At p 406 he said that it was apparent that many refugees needed to cross borders clandestinely in order to access protection. So long as a refugee’s failure to present valid travel documents was purely incidental to his or her flight from the risk of being persecuted, he should not be sanctioned for illegal entry. He then added this comment:
“Nor does international law sanction the United Kingdom’s policy of pursuing criminal charges against refugees found to have used false documents to pass through its territory. As an English court has observed, the right of refugees to breach migration control laws in search of protection means that the propriety of prosecution for such matters by a transit state is particularly doubtful.”
In the UK, refugee status determined by the Home Office. If a suspect is a refugee and the Home Office determines that the other conditions in the section 31(1) and (2) criteria are met, no charges should be brought.
Where CFI submit a case for charging advice on the basis that the section 31(1) and (2) conditions have not been met, prosecutors must carefully consider the evidence submitted. Pursuant to paragraph 4.6 of the Code for Crown Prosecutors, prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. They must consider what the defence case may be, and how it is likely to affect the prospects of conviction. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be.
If the prosecution would undermine public confidence in the judicial system, it should not be brought.
In New Zealand Refugee Appeal No. 371/92 Re ZJ (9 May 1994) 9, The Refugee
Status Appeals Authority stated:
"As to the first aspect, it is common for asylum seekers to commit offences under the
Immigration Act 1987. Frequently they are forced, of necessity, to rely on false documentation. Agents of persecution seldom permit their victims to leave the country of origin in safety and with dignity. It is commonplace for bona fide asylum seekers to resort to false documentation and deception. It would be a rare case indeed for the possession and use of such documents to be taken into account to support an adverse credibility finding."
The UNHCR made written submissions in support of the applicants in Adimi who were arrested as transit passengers while they were attempting to board flights for Canada with the intention of seeking asylum there, Mr Sorani and Mr Kaziu. It said that UNHCR considered that their prosecution for possession of false documents in such a situation constituted prosecution for their illegal presence in the United Kingdom, contrary to article 31(1). In a Memorandum submitted to the Select Committee on Home Affairs dated 1 December 2005, para 13, UNHCR repeated its view that refugees and asylum seekers in transit to a final destination country could equally benefit from article 31 of the Convention if all the conditions of that article were met.
The effect of the liability that the country of destination imposes on the carrier was that the false passport was detected in a country where the appellant was in transit, not in the country to which he was seeking entry. But it would be artificial in the extreme to deny appellant the protection to which he would have been entitled had he reached the United States just because appellant was detected at Heathrow before he boarded his flight to Washington. The situation is one where the United Kingdom, having asserted jurisdiction over him because he was present here, must assume responsibility for affording him the benefit of asylum.
