Earlier this year the Faculty sponsored a conference held by the Scottish Refugee Council. The conference was called “Prosecute or Protect?” and focused on what refugee lawyers know as the principle of non-penalisation. That principle finds legal form in Article 31 of the 1951 Refugee Convention. Article 31 provides that:
“the contracting states shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened … enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. ”
The background to Article 31 was explained in this way by Simon Brown LJ in ex parte Adimi  QB 667, 673F-H:
“The problems facing refugees in their quest for asylum need little emphasis. Prominent among them is the difficulty of gaining access to a friendly shore. Escapes from persecution have long been characterized by subterfuge and false papers. As was stated in a memorandum from the Secretary General of the United Nations in 1950: “A refugee whose departure from his country of origin is usually a flight, is rarely in a position to comply with the requirements for legal entry (possession of national passport and visa) into the country of refuge”.”
To prosecute and punish genuine refugees for using subterfuge and false papers would undermine the duty of protection which states owe to them in international law.
The conference highlighted the absence – by contrast with the position in England & Wales – the absence of any prosecution policy addressing the matter. The Lord Advocate spoke at the Conference and made clear his intention to remedy that gap. This has now been achieved, with the publication yesterday of the new COPFS Policy. The policy can be found at
I warmly welcome the publication of this policy and the Crown Lord Advocate is to be congratulated on taking this issue forward.
It is particularly heartening that the policy should have been published at this time. None of us should minimise the public interest in the proper enforcement of immigration laws. But at the same time, the duty on states to give asylum to those who face a well-founded fear of persecution in their home country is a moral imperative as well as an obligation in international law. The displacement of populations by war and civil strife, the ease of international mobility, the potential difficulty of distinguishing the genuine refugee from the economic migrant or, indeed, from the person who would do us serious harm – all of these challenge our commitment to the protection of refugees. But this country has a long and honourable record of giving refuge to people fleeing persecution, and we cannot fail to meet the claims of people in that situation just because it is difficult or inconvenient to do so.