CRIMINALISATION OF ASYLUM SEEKERS: BORDER ENFORCEMENT PRACTISES AGAINST REFUGEE RIGHTS

Abstract [1]

In recent decades, the global rise in forced displacement and statelessness has increasingly triggered states to impose restrictive and punitive border enforcement practices. As states struggle to assert control over their frontiers, asylum seekers have increasingly become the targets and victims of criminalisation. Instead of being treated as individuals seeking protection from persecution, they are frequently portrayed as security threats, illegal entrants, or economic migrants. This shift has serious implications for the human rights of asylum seekers while causing a serious shake to the core principles of international refugee law. It is therefore imperative to explore the criminalisation of asylum seekers in the context of border enforcement practises in various countries, analysing their compatibility with Human rights and International legal standards as it will be in this essay. The essay shall therefore bring into focus case scenarios and legal provisions by various states to highlight the extent to which current practises have only continued to violate refugee rights provided for in international law. While there are many refugee rights that face the threat of violation, this article focuses on the most critical rights whose impact is often under looked by many governments with recommendations that could help remedy the crisis.

Introduction

To move is human, but to be forced to flee is a legal crisis. While moving is a natural part of human life, to some it signifies more than just a change of geographical location. It is movement not by choice but forced by necessity, entailing the loss of their nationality, their legal identity, citizenship and potential loss of their right to access fundamental human rights. In an era of rising statelessness due to conflicts, violence and persecution, the international community has been subjected to an intense test on whether it can successfully uphold the rights of the stateless amidst the increasing political polarisation. The refugees and asylum seekers crisis have taken shape since the second World War which had heightened the amount of stateless population calling for international intervention. For that reason, The United Nations High Commissioner for Refugees was established vide the 1951 Geneva Convention on the status of Refugees. While recognising the significant strides taken by the organisation through various conventions put in place since 1951, it is also impossible to overlook the continued violation of rights of asylum seekers in loopholes that have not been fully addressed by the international legislation.

Human rights

Detention of asylum seekers solely on the basis of their mode of entry is one of the common manifestations of criminalising asylum seekers witnessed across the globe. This trend has emerged in the wake of increased displacement of people due to conflicts and wars, with states prioritising national security and protection of their borders over the rights of the displaced approaching their country to seek asylum. This has been a clear violation of international provisions protecting refugees manifesting the failure of the non-refoulment principle as provided for under article 33 of the 1951 Convention on the status of refugees[2]. The practise of detention at border single handedly raises numerous legal rights violations of the rights of the victims prolonged arbitrary detention, lack of legal protection, unjustified discrimination and abuse against women and children, denial of right to movement, torture and ill-treatment among others

Right to movement

As per article 31 of the 1951 convention, state parties shall not restrict refugee movement arbitrarily unless it is necessary.[3] This is interpreted to mean that detention shall only be exercised where it is proportionate, reasonable and required by law. The UNHCR Detention Guidelines further emphasise that detention of asylum seekers should be avoided as much as possible and should only be exercised as a last resort[4].However, many countries have normalised this exercise and have made it seem more of a routine than an exceptional occurrence with aims not considered appropriate under international standards. For instance, in a report by The Working Group on arbitrary Detention following a visit to the US, concern was expressed that detention of asylum seekers appeared to be a way to deter individuals from proceeding with their immigration claims[5]. This problem has mainly occurred as a result of failure by law enforcement officers to distinguish between criminals, illegal migrants and asylum seekers[6]. While the UNHCR has provided guidelines necessary for detention of asylum seekers requiring the places of detention to have humane and dignified conditions[7], most countries like the US and Australia have continued to use prisons for that purpose which in most cases have poor standards. Innocent, genuine refugee and asylum seekers are met with not the golden doors of freedom and safety but the steel doors of prisons for “illegal immigration”.[8]

 In a case study of Kenya, an African country hosting more than 800,000 refugees and asylum seekers[9] ,the government has been frequently accused of discriminating refugees from Somalia with the excuse that they are a security threat. This has led to confinement of these refugees at the border with most of them being denied the opportunity to travel further into the mainland. This is clearly a violation of the right and of international provision specifically article 26 of the Geneva Convention on the Status of Refugees which protects their right to movement.[10]

Health rights

Health rights of refugees and asylum seekers represent major legal and humanitarian concern with evidence from various jurisdictions showing consistent patterns of inadequate healthcare provisions which has raised concerns regarding compliance to international principles of prohibition of inhuman or degrading treatment under article 7 of the International Convention on Civil and Political Rights (ICCPR).[11] From lack of proper medication, poor reproductive health services to deteriorating mental health state refugees and asylum seekers are faced with a myriad of health risks throughout their migration journey.

Mental health

Migration, especially by involuntary ant unavoidable circumstances, can expose the subjects to psychosocial problems and mental health conditions emanating from their encounters with violence, trauma and other stressors they come across before, during and post migration.[12] Evidence and records shown that ratings of harsh experiences and poor living conditions in host countries have had strong impact on the mental health of the subjects of displacement.[13]A research conducted in Malaysia revealed that refugees and asylum seekers faced more complex health concerns due to exposure to violence, inadequate nutrition and government restrictions on their movement.[14] Another study on Israel revealed that according to the laws regulating the provision for health services in Israel, most asylum seekers are not entitled to health services due to lack of a civil status that entitles them to resident rights and are only eligible to emergency medical care.[15]

Reproductive health rights

Reproductive health for women and girls in refugee camps like Kakuma and Dadaab camps in Kenya is not any better. While there exist policies to provide for their health care, the clinics setup in these camps are usually overcrowded with inadequate contraceptives or maternity services for the women in need.[16]the consequences of this situation is increase of unwanted pregnancies which lead to further crowding of the camps, increased mother and infant deaths due to poor maternity services and high rates of school drop outs for the youth girls.These are just but a few examples of how critical the refugee health rights situation is and how much need there is for governments to adopt better regulations to protect the victims as they are as much human as legal citizens of any country.

Way forward

In light of all these systemic violations of the rights of refugees and asylum seekers, it is most paramount that long term effective measures be adopted to ensure full compliance with international standards regarding refugee and asylum seekers hosting. In this current era of globalisation, the international community at large has imposed obligations on states in regards to upholding refugee rights with expectations that countries need to respect refugee rights which has been evidenced in the theoretical framework. As much as many countries have ratified the international conventions protecting refugees, most of the provisions have been shelved and remain mere paper principles without the genuine zeal to protect the migration victims.[17] It is therefore only fair enough to pinpoint that legal rules alone are insufficient to remedy these violations. While the international community lacks a specific sovereign power and depends on the specific state governors to ensure implementation, it is crucial to develop more effective mechanisms of ensuring all states abide by the provisions. Furthermore, non-ratifying countries need to take the plight of refugees and asylum seekers as the lack of ratification poses a danger to the refugees hosted in these countries given that their migration occurs involuntarily and are in most need of environment free from the harsh conditions in their homeland.  There is also need for establishment of fast and efficient systems for clearly refugees as non-security threats in a country. This way refugees will be able to fend for themselves without discrimination for being outsiders. For a country like Kenya recently, the government has retracted the limiting encampment policies and recognised refugees as agents of economic development which has seen improvement of their livelihoods as employees and entrepreneurs reducing their over reliance on the government for survival. This could be a world changing move if many host countries could adopt it.

Bibliography

1. Amaya Andhambi, Implementation of Refugee Rights in International Law: A Case Study of Kenya (2008)
2. Deraso Dokole, Kenya Must Put Displaced Women at the Centre of Reproductive Rights (2025) The Legal Caravan
3. Fiona Chuah et al, The Health Needs and Access Barriers Among Refugees and Asylum Seekers in Malaysia: A Qualitative Study (2018) International Journal for Equity in Health pg. 4
4. Healey, Sharon A. “The Trend Toward the Criminalization and Detention of Asylum Seekers.” Human Rights brief, (2004)
5. Hebrew Immigration Aid Society, Refugees in Kenya: What You Need to know (2025)
6. International Convention on Civil and Political Rights (ICCPR), Article 7
7. Kiama Lucy, Dennis Likule Detention in Kenya: Risks for refugees and asylum seekers. Refugee Migration review. https://www.fmreview.org/kiama-likule/
8. N Moshe, health Services for Foreign and Disadvantaged Workers. In Knesset speeches; Research and Information Center: Jerusalem Israel 2014 http://knesset.gov.il/committees/heb/material/data/zarim2014-02-03.pdf
9. The Geneva Convention on the Status of Refugees 1951, article 26
10. UN General Assembly, Convention Relating to the Status of Refugees, article 31 & 33(July 28, 1951).
11. The UN General Assembly, Report of the Working Group on Arbitrary Detention on its Visit to the United States of America, UN Doc, A/HRC/36/37/Add.2 (July, 17,2017)
12. UNHCR, Guidelines on Applicable criteria and standards Relating to the Detention of Asylum seekers and Alternatives to Detention (2012), Guideline 2.
13. United States Committee for Refugees and Immigrants, Mental awareness month: barriers and access to mental health care (2024) https://refugees.org/mental-health-awareness-month-barriers-and-access-to-mental-health-care/
14. Wai Kai Hou et al, Everyday Life Experiences and Mental Health Among Conflict-Affected Forced Migrants: A Meta-Analysis (2020) Journal of Affective Disorder

[1] Michelle Ndeto is a third-year student at Egerton University, Kenya pursuing Bachelor of Laws Degree who is passionate about shaping the legal world (especially in relation to human rights) in her country and regionally through legal research and writing.

[2] UN General Assembly, Convention Relating to the Status of Refugees, article 33(July 28, 1951).

[3] Ibid article 31.

[4] UNHCR, Guidelines on Applicable criteria and standards Relating to the Detention of Asylum seekers and Alternatives to Detention (2012), Guideline 2.

[5] The UN General Assembly, Report of the Working Group on Arbitrary Detention on its Visit to the United States of America, UN Doc, A/HRC/36/37/Add.2 (July, 17,2017)

[6] Kiama Lucy, Dennis Likule Detention in Kenya: Risks for refugees and asylum seekers. Refugee Migration review. https://www.fmreview.org/kiama-likule/

[7] UNHCR, Guidelines on Applicable criteria and standards Relating to the Detention of Asylum seekers and Alternatives to Detention (2012)

[8] Healey, Sharon A. “The Trend Toward the Criminalization and Detention of Asylum Seekers.” Human Rights brief, (2004)

[9] Hebrew Immigration Aid Society, Refugees in Kenya: What You Need to know (2025)

[10] The Geneva Convention on the Status of Refugees 1951, article 26

[11] International Convention on Civil and Political Rights (ICCPR), Article 7

[12] United States Committee for Refugees and Immigrants, Mental awareness month: barriers and access to mental health care (2024) https://refugees.org/mental-health-awareness-month-barriers-and-access-to-mental-health-care/

[13] Wai Kai Hou et al, Everyday Life Experiences and Mental Health Among Conflict-Affected Forced Migrants: A Meta-Analysis (2020) Journal of Affective Disorder

[14] Fiona Chuah et al, The Health Needs and Access Barriers Among Refugees and Asylum Seekers in Malaysia: A Qualitative Study (2018) International Journal for Equity in Health pg. 4

[15] N Moshe, health Services for Foreign and Disadvantaged Workers. In Knesset speeches; Research and Information Center: Jerusalem Israel 2014

http://knesset.gov.il/committees/heb/material/data/zarim2014-02-03.pdf

[16] Deraso Dokole, Kenya Must Put Displaced Women at the Centre of Reproductive Rights (2025) The Legal Caravan

[17] Amaya Andhambi, Implementation of Refugee Rights in International Law: A Case Study of Kenya (2008)