Criminalisation of asylum seekers not only violates the Geneva Refugee Convention and the UN Protocol Against Migrants’ Smuggling, but has severe consequences for their ability to access protection. Many of those arrested and detained for “smuggling” are themselves seeking asylum, yet they are treated as criminals simply for crossing the border by boat or car.
Being placed in pre-trial detention dramatically affects the asylum process. Individuals must conduct their asylum interviews inside prison, which severely limits their ability to prepare as well as access to legal support or support organizations. The prison environment creates practical and psychological barriers to effectively presenting their case. Asylum procedures are often put on hold while criminal cases are pending, meaning people must wait until trials are finished before their claims are decided. This can leave individuals in limbo for months or even years, prolonging uncertainty and instability.
This creates a vicious and deeply illogical circle: asylum decisions are delayed because of criminal proceedings, yet being granted asylum can itself be a basis for acquittal or non-penalization. Some detained people cannot apply for asylum at all. Even when they repeatedly express a desire to apply, prison staff or authorities may refuse to initiate proceedings, telling them they have no chance of asylum until their criminal case is resolved.
This effectively blocks access to protection for those who are fleeing persecution. The outcome of a criminal case can also directly impact asylum status. Even if an individual is granted refugee status while awaiting trial, having a criminal record can affect the renewal of protection or eligibility for subsidiary protection. Convictions for crimes carrying minimum sentences of three years or more may make individuals ineligible for certain forms of protection.In most of the cases, asylum seekers have no alternative but to cross borders irregularly.
Driving a boat or relying on smugglers may be the only way to reach safety, yet these necessary actions are treated as crimes. Such barriers prevent asylum seekers from exercising their fundamental right—the right to seek safety.
Read the full report “A legal vacuum”.
The problem is the border regime, not smugglers