Are asylum seekers who arrive by boat ‘illegal’?
No. It is definitely not a crime to seek protection from persecution or other serious human rights abuses, every individual has that right under international law. That right to seek asylum is enshrined in article 14 of the Universal Declaration of Human Rights.
Article 31 of the Refugee Convention – the basis on which the Australian Government justifies its use of the word ‘illegal’ – provides that actions that would otherwise be illegal, such as entering a country without a visa, must not be treated as illegal if a person is seeking asylum. Those drafting the Refugee Convention recognised the problematic nature of refugee escape and the frequent difficulty of obtaining travel documents.
The Refugee Council of Australia explains:
Refugees are, by definition, persons fleeing persecution and in most cases are being persecuted by their own governments. It is often too dangerous for refugees to apply for a passport or exit visa [as required by some countries] or approach an Australian Embassy for a visa, as this could put their lives, and the lives of their families, at risk. Refugees may also be forced to flee with little notice due to rapidly deteriorating situations and do not have time to apply for travel documents or arrange travel through authorised channels … Permitting asylum seekers to enter a country without travel documents is similar to allowing ambulance drivers to exceed the speed limit in an emergency – the action may ordinarily be illegal but, in order to protect lives at risk, an exception is made.