NATIONAL LAW INSTITUTE

UNIVERSITY, BHOPAL

2018-19
PUBLIC INTERNATIONAL LAW

8TH TRIMESTER

INTERCEPTION OF ASYLUM-SEEKERS AND REFUGEES: THE

INTERNATIONAL FRAMEWORK AND RECOMMENDATIONS

SUBMITTED TO: SUBMITTED BY:

PROF. RAKA ARYA PRASUN TIWARI
2016 B.A.LL.B. 15
Table of Contents
INTERCEPTION OF ASYLUM-SEEKERS AND REFUGEES: THE INTERNATIONAL
FRAMEWORK AND RECOMMENDATIONS FOR A COMPREHENSIVE APPROACH. 2
INTRODUCTION....................................................................................................................2
INTERCEPTION AND OTHER MEASURES AGAINST IRREGULAR MIGRATION.......4
A. International Cooperation against smuggling and trafficking of persons......................4
B. Interception and State Practice......................................................................................5
(i) Description of interception practices.........................................................................5
(ii) Reasons for interception........................................................................................6
(iii) Impact on asylum-seekers and refugees................................................................7
THE INTERNATIONAL LEGAL FRAMEWORK.................................................................9
C. International refugee law..............................................................................................9
(i) Interception and non-refoulement.............................................................................9
(ii) Interception and illegal entry..............................................................................10
(iii) Interception and irregular movement..................................................................10
RECOMMENDATIONS FOR A COMPREHENSIVE APPROACH...................................13
INTERCEPTION OF ASYLUM-SEEKERS AND REFUGEES: THE
INTERNATIONAL FRAMEWORK AND RECOMMENDATIONS FOR A
COMPREHENSIVE APPROACH

INTRODUCTION

Irregular migration has become a major challenge for many States in different parts
of the world. The increase in the number of arrivals without the required
documentation has raised concerns about the ability of States to control borders and
access to their territory. In recent years, Governments have renewed efforts to
prevent irregular migration and to combat the smuggling and trafficking of persons,
in particular when undertaken by organized criminal groups.1

Many of those who are being smuggled or trafficked are migrants in search of a
better life, hoping to find employment opportunities and economic prosperity
abroad. Others are asylum-seekers and refugees who flee from persecution, armed
conflict, and other threats to their life and freedom. Both groups are exploited by
criminal traffickers or smugglers who seek to make illicit profit from offering their
services to the vulnerable and the disadvantaged.

In order to combat human smuggling and trafficking, States have adopted, inter
alia, the practice of “intercepting” persons travelling without the required
documentation - whether in the country of departure, in the transit country, within
territorial waters or on the high seas, or just prior to the arrival in the country of
destination. In some instances, interception has affected the ability of asylum-
seekers and refugees to benefit from international protection.

1
UNHCR supports the distinction made by the Vienna Ad Hoc Committee on the Elaboration of a
Convention against Transnational Organized Crime (created by the General Assembly in its resolution
53/111 of 9 December 1998) between smuggled migrants…..
Based on a working definition outlined below, this paper describes the current State
practice on interception. It sets out the international legal and policy framework in
which interception takes places, including its impact on asylum- seekers and
refugees, and puts forward a number of recommendations for a comprehensive,
protection-oriented approach.
INTERCEPTION AND OTHER MEASURES AGAINST IRREGULAR
MIGRATION

The paragraphs that follow describe various types of interception as practised by

States, the reasons for these measures and their impact on asylum-seekers and
refugees. They are introduced by a brief summary of current discussions at
international level that relate to irregular migration.

A. International Cooperation against smuggling and trafficking of

persons

Interception has been discussed within the context of a number of processes and
consultations, in particular at the regional level, with a focus inter alia on
combating irregular migration. These include the Asia-Pacific Consultation (APC),
the South Asian Association for Regional Cooperation (SAARC), the Inter-
Governmental Consultations (IGC), the Budapest Process in Europe, and the
Regional Conference on Migration (“Puebla Process”) in the Americas.

Initiated in 1991, the Budapest process created a structured framework between the
European Union and Central and Eastern European countries for the prevention of
irregular migration and related control issues. This process resulted in the adoption
of recommendations inter alia relating to pre-entry and entry controls, return and
readmission, information exchange, technical and financial assistance and
measures to combat organized crime with regard to trafficking and smuggling of
persons. In Latin America, within the framework of the Regional Conference on
Migration, Member States have been discussing programmes for the return of
undocumented migrants from outside the region to countries of origin with the
assistance of the International Migration for Migration (IOM), in particular those
intercepted on boats in international waters.

Other examples of a comprehensive approach are provided by the country-specific

 action plans of the European Union’s High Level Working Group on Asylum and
Migration (HLWG). These plans address the phenomenon of composite flows and
comprise a number of elements relating to the root causes of migratory and refugee
movements. They also contain control measures to combat irregular migration,
such as increasing the number and effectiveness of airline liaison officers and
immigration officials posted abroad.

The issue of combating smuggling and trafficking of persons has also featured
prominently on the agenda of the European Union and of several international
organizations, including the Council of Europe, the Organization for Security and
Cooperation in Europe (OSCE), the International Organization for Migration
(IOM), the Inter-Parliamentary Union, and several United Nations agencies, such
as the International Labour Organization (ILO)

B. Interception and State Practice

Defining interception __ An internationally accepted definition of interception does

not exist. Its meaning has to be derived from an examination of past and current
State practice. For the purpose of this paper, interception is defined as
encompassing all measures applied by a State, outside its national territory, in order
to prevent, interrupt or stop the movement of persons without the required
documentation crossing international borders by land, air or sea, and making their
way to the country of prospective destination.

(i) Description of interception practices

Interception of undocumented or improperly documented persons2 has taken place

for many years, in a variety of forms. Although interception frequently occurs in
the context of large-scale smuggling or trafficking of persons, it is also applied to
individuals who travel on their own, without the assistance of criminal smugglers
and traffickers.

2
In this paper, the term “undocumented” or “improperly documented” persons refers to those who are
not in possession of the required documentation for travel to and entry into the country of intended
destination.
The practice can occur in the form of physical interception or - as it is sometimes
called - interdiction of vessels suspected of carrying irregular migrants or asylum-
seekers, either within territorial waters or on the high seas. Some countries try to
intercept boats used for the purpose of smuggling migrants or asylum-seekers as far
away as possible from their territorial waters. Following the interception,
passengers are disembarked either on dependent territories of the intercepting
country, or on the territory of a third country which approves their landing. In most
instances, the aim after interception is return without delay of all irregular
passengers to their country of origin.

Aside from the physical interdiction of vessels, many countries also put in place a
number of administrative measures with the aim of intercepting undocumented
migrants. At key locations abroad, such as the main transit hubs for global
migratory movements, States have deployed extraterritorially their own
immigration control officers in order to advise and assist the local authorities in
identifying fraudulent documents. In addition, airline liaison officers, including
from private companies, have been posted at major international airports both in
countries of departure and in transit countries, to prevent the embarkation of
improperly documented persons. A number of transit countries have received
financial and other assistance from prospective destination countries in order to
enable them to detect, detain and remove persons suspected of having the intention
to enter the country of destination in an irregular manner.

(ii) Reasons for interception

Such interception practices have been adopted by States for a variety of reasons.
Given their concern over a global increase in irregular migration and the number of
spontaneous arrivals, interception is mostly practiced in order to disrupt major
smuggling and trafficking routes. More specifically, in the case of smuggled
asylum-seekers, States have expressed their apprehension as to undocumented
arrivals who submit applications for asylum or refugee status on grounds which do
not relate to any criteria justifying the granting of protection. These States
consider that the smuggling of such persons will lead, or indeed is already
 leading, to the misuse of established status determination procedures, and risks
decreasing their ability to offer asylum and protection on the same terms as in the
past.

Many of the undocumented asylum-seekers are found to be irregular movers, that is

refugees who had already found protection in another country and for whom
protection continues to be available. 3 The perception is spreading, especially
among traditional resettlement countries, that such refugees are seeking to
circumvent established resettlement channels by using the services of criminal
smugglers.

Finally, States have pointed out that smuggling often endangers the lives of
migrants, in particular those travelling in unseaworthy boats. Their interception
contributes to the rescue of persons in distress at sea and can help to save lives.

(iii) Impact on asylum-seekers and refugees

States have a legitimate interest in controlling irregular migration. Unfortunately,

existing control tools, such as visa requirements and the imposition of carrier
sanctions, as well as interception measures, often do not differentiate between
genuine asylum- seekers and economic migrants. National authorities, including
immigration and airline officials posted abroad, are frequently not aware of the
paramount distinction between refugees, who are entitled to international
protection, and other migrants, who are able to rely on national protection.

Immigration control measures, although aimed principally at combating irregular

migration, can seriously jeopardize the ability of persons at risk of persecution to
gain access to safety and asylum. As pointed out by UNHCR in the past, the
exclusive resort to measures to combat abuse, without balancing them by adequate
means to identify genuine cases, may result in the refoulement of refugees.4

3
See Conclusion No. 58 (XL) of 1989 (A/AC.96/737, para.25) concerning the problem of refugees and
asylum seekers who move in an irregular manner from a country in which they had already found
protection.
4
See Note on International Protection of 3 July 1998 (A/AC.96/898), para. 16.
Recent bilateral arrangements for intercepting and arresting asylum-seekers in a
transit country, including women and children, have given rise to particular
protection concerns. In the absence of an effective protection regime in the transit
country, intercepted asylum-seekers are at risk of possible refoulement or
prolonged detention. The refusal of the first country of asylum to readmit irregular
movers may also put refugees “in orbit”, without any country ultimately assuming
responsibility for examining their claim. Current efforts to increase cooperation
between States for the purposes of intercepting and returning irregular migrants
also fail to provide adequate safeguards for the protection of asylum-seekers and
refugees. In UNHCR’s view, it is therefore crucial to ensure that interception
measures are implemented with due regard to the international legal framework and
States’ international obligations.
THE INTERNATIONAL LEGAL FRAMEWORK

International law provides important parameters for States undertaking interception

as a means to combat irregular migration. Reference to these parameters is to be
found within a complex framework of existing and emerging international legal
principles deriving from international maritime law, criminal law, the law of State
responsibility, human rights law and, in particular, international refugee law.

C. International refugee law

(i) Interception and non-refoulement

The fundamental principle of non-refoulement reflects the commitment of the

international community to ensure that those in need of international protection can
exercise their right to seek and enjoy in other countries asylum from persecution, as
proclaimed in Article 14 (1) of the Universal Declaration of Human Rights. It
applies whenever a State or one of its agents contemplates the return of persons “in
any manner whatsoever” to territories where they may be subjected to persecution,
irrespective of whether or not they have been formally recognized as refugees. 5 The
overriding importance of the observance of non-refoulement – both at the border
and within the territory of a State - has been repeatedly reaffirmed by the Executive
Committee which has also recognized that the principle is progressively acquiring
the character of a peremptory rule of international law.6

The direct removal of a refugee or an asylum-seeker to a country where he or she

fears persecution is not the only manifestation of refoulement. The removal of a
refugee from one country to a third country which will subsequently send the
refugee onward to the place of feared persecution constitutes indirect refoulement,
for which several countries may bear joint responsibility.

5
Conclusion No. 6 (XXVIII) of 1977 (A/AC.96/549, para.53(4)).
6
Conclusion No. 25 (XXXIII) of 1982 (A/AC.96/614, para.70(1)).
The principle of non-refoulement does not imply any geographical limitation. In
UNHCR’s understanding, the resulting obligations extend to all government agents
acting in an official capacity, within or outside national territory. Given the practice
of States to intercept persons at great distance from their own territory, the
international refugee protection regime would be rendered ineffective if States’
agents abroad were free to act at variance with obligations under international
refugee law and human rights law.

(ii) Interception and illegal entry

The indiscriminate application by States of interception measures to asylum-

seekers derives from the assumption that genuine refugees should depart from their
country of origin or from countries of first asylum in an orderly manner.
However, some countries

of origin impose strict exit control measures, which makes it difficult for refugees
to leave their countries legally.

The fact that asylum-seekers and refugees may not be able to respect immigration
procedures and to enter another country by legal means has been taken into account
by the drafters of the 1951 Convention relating to the Status of Refugees. Article
31 (1) of the 1951 Convention prohibits the penalization of refugees for illegal
entry or presence, provided they come directly from countries where their life was
threatened and show “good cause” for violating applicable entry laws.

(iii) Interception and irregular movement

Many intercepted asylum-seekers and refugees have moved from a country other
than that of their origin. The phenomenon of refugees who move in an irregular
manner from countries in which they had already found protection, in order to seek
asylum or resettlement elsewhere, is a growing concern. The return of such
refugees to countries of first asylum can be envisaged whenever the refugees will
be protected there against refoulement; will be permitted to remain there and
treated in accordance with recognized basic human standards until a durable
 solution has been found.7

However, in the absence of specific agreements to allow refugees who moved in an

irregular manner to re-enter the country in which they had already found
protection, efforts to return irregular movers have not always been successful. In
addition, refugees who initially found protection in the country of first asylum,
sometimes feel compelled to depart spontaneously, for instance due to a
deterioration of protection standards in the country of first asylum. This may
require concerted international efforts to address such problems, and to assist States
in building their capacity to establish effective protection mechanisms, not least in
an effort to promote international solidarity.

B. The emerging legal framework for combating criminal and organized smuggling
and trafficking of persons

In its resolution 53/111 of 9 December 1998, the General Assembly decided to

establish an intergovernmental Ad Hoc Committee for the purpose of elaborating a
comprehensive international convention against organized crime, including the
drafting of international instruments addressing the trafficking in persons,
especially women and children, and the smuggling in and transport of migrants.

UNHCR, along with other international organizations, has actively participated in

the discussions of the Ad Hoc Committee in Vienna.8 The Office shares the
concerns raised by many States that the criminal and organized smuggling of
migrants, on a large scale, may lead to the misuse or abuse of established national
procedures for both regular immigrants and asylum-seekers.

The current draft Protocol against the Smuggling of Migrants by Land, Air and
Sea,9 prepared by the Ad Hoc Committee, includes a draft provision which would
7
Conclusion No. 58 (XL) of 1989 (A/AC.96/737, para. 25).

8
Note by the United Nations High Commissioner for Human Rights, International Organization for
Migration, United Nations High Commissioner for Refugees, and the United Nations Children’s Fund
on the Protocol concerning migrant smuggling and trafficking in persons (A/AC.254/27) of 8 February
2000, and Corrigendum (A/AC.354/27/Corr.1) of 22 February 2000.
9
A/AC.254/4/Add.1.Rev.5.
 authorize States Parties to intercept vessels on the high seas, provided that there are
reasonable grounds to suspect that the vessel is engaged in the smuggling of
migrants by sea 10

It is encouraging that efforts in this context are directed to elaborating international

instruments which not only serve the purpose of punishing criminal smugglers and
traffickers, but which also provide proper protection to smuggled and trafficked
persons, in particular asylum-seeking women and children. It is important that the
current draft Protocols maintain explicit references to the 1951 Convention and the
1967 Protocol and, as regards the draft Protocol against Smuggling of Migrants, to
the principle of nonrefoulement. UNHCR also appreciates that delegations in
Vienna repeatedly stated that these instruments do not aim at punishing or
criminalizing persons who are being smuggled or trafficked.

The safeguards contained in the current draft Protocols should be maintained and,
where appropriate, further strengthened, through appropriate references to
international refugee law and human rights law. In UNHCR’s view, the elaboration
of these two Protocols represents a unique opportunity to design an international
framework which could provide a solid legal basis for reconciling measures to
combat the smuggling and trafficking of persons, including through interception,
with existing obligations under international law towards asylum-seekers and
refugees.

10
See draft Article 7 bis.
RECOMMENDATIONS FOR A COMPREHENSIVE APPROACH

In the absence of a comprehensive approach, the application of stringent measures

alone for intercepting undocumented migrants is unlikely to be successful, and may
well adversely affect refugees and asylum-seekers. The adoption of interception
policies in certain regions, in isolation from other measures, risks diverting the
smuggling and trafficking routes to other regions, thereby increasing the burden on
other States.

Together with States and other international and national actors, UNHCR is
prepared to contribute to the ongoing discussion on the problem of organized
smuggling as it affects asylum-seekers and refugees. Further progress will require a
protection-oriented approach which addresses the problem through a variety of
measures. The following elements are intended as basis for a discussion within the
Executive Committee on a comprehensive approach, with a view to the possible
adoption of a conclusion on such an approach:11

(a) Interception and other enforcement measures should take into account the
fundamental difference, under international law, between refugees and asylum-
seekers who are entitled to international protection, and other migrants who can
resort to the protection of their country of origin;

(b) Intercepted persons who present a claim for refugee status should enjoy the
required protection, in particular from refoulement, until their status has been
determined. For those found to be refugees, intercepting States, in cooperation with
concerned international agencies and NGOs, should undertake all efforts to identify
a durable solution, including, where appropriate, through the use of resettlement;

(c) Alternative channels for entering asylum countries in a legal and orderly
manner should be kept open, in particular for the purpose of family reunion, in
11
The desirability of a comprehensive approach by the international community to the problems of
refugees has been already acknowledged in Conclusion No. 80 (XLVII) of 1996 (A/AC.96/878, para.
22).
 order to reduce the risk that asylum seekers and refugees will resort to using
criminal smugglers. By adopting appropriate national legislation, States should
enforce measures to punish organized criminal smugglers and to protect smuggled
migrants, in particular women and children;

(d) States should, furthermore, examine the outcome of interception measures on

asylum- seekers and refugees, and consider practical safeguards to ensure that these
measures do not interfere with obligations under international law, for instance,
through establishing an appropriate mechanism in transit countries to identify those
in need of protection, and by training immigration officers and airline officials in
international refugee law;

(e) In order to alleviate the burden of States that are disproportionally affected by
large numbers of spontaneous and undocumented asylum-seekers and refugees,
other States should give favourable consideration to assisting the concerned
governments in providing international protection to such refugees, based on the
principle of international solidarity and within a burden-sharing framework;

(f) In regions in which only a few countries have become party to the 1951
Convention and the 1967 Protocol, States Parties should actively promote a broader
accession to the 1951 Convention and the 1967 Protocol throughout that region,
including the establishment of fair and effective procedures for the determination
of refugee status, in particular in transit countries, and the adoption of
implementing legislation;

(g) In cases where refugees and asylum-seekers have moved in an irregular manner
from a country in which they had already found protection, 12 enhanced efforts
should be undertaken for their readmission including, where appropriate, through
the assistance of concerned international agencies. In this context, States and
UNHCR should jointly analyze possible ways of strengthening the delivery of
protection in countries of first asylum. There could also be more concerted efforts
to raise awareness among refugees of the dangers linked to smuggling and irregular

12
Conclusion No. 58 (XL) (A/AC.96/737, para.25).
movements;

(h) In order to discourage the irregular arrival of persons with abusive claims,
rejected cases which are clearly not deserving of international protection under
applicable instruments should be returned as soon as possible to countries of origin,
which should facilitate and accept the return of their own nationals. States should
further explore proposals to enhance the use and effectiveness of voluntary return
programmes, for instance with the assistance of IOM.
 I. CONCLUSION

6. Interception, whether implemented physically or administratively, represents

one mechanism available to States to combat the criminal and organized smuggling
and trafficking of migrants across international borders. UNHCR invites
governments to examine possibilities to ensure, through the adoption of appropriate
procedures and safeguards, that the application of interception measures will not
obstruct the ability of asylum-seekers and refugees to benefit from international
protection. Further analysis of the complex causes of irregular migration may be
necessary, including their relationship with poverty and social development. Only a
comprehensive approach, respecting principles of international refugee and human
rights law, is likely to succeed in both combating irregular migration and in
preserving the institution of asylum