CYIL vol. 13 (2022)

VIOLETA VASILIAUSKIENĖ CYIL 13 ȍ2022Ȏ of entry may nevertheless have certain consequences in practice for the refugee or asylum seeker.” 59 Furthermore, according to the agency, “‘Illegal presence’ would cover lawful arrival and remaining after the elapse of a short, permitted period of stay (for example, in transit).” 60 It seems that illegal entry or presence is not a right or entitlement but a statement of fact on the method of how a person potentially seeking asylum entered the country. Here we have two conflicting values – the provision of protection for persons seeking asylum, seeking international protection and the need of a state to protect its own borders (and in case of Lithuania, the external borders of the whole EU), which is the guarantee of sovereignty of a state. “The nation state is defined by its borders: externally, they constitute the limits of sovereignty; internally, residence and even mere presence within borders allow individuals to claim the protection of the nation state.” 61 Therefore the protection of borders from any threats is part of the exercise of the sovereignty of the state. Another important principle in action here is the principle of non-refoulement, or to say more exactly, the moment when this obligation arises. This principle “prohibits States from transferring or removing individuals from their jurisdiction or effective control when there are substantial grounds for believing that the person would be at risk of irreparable harm upon return, including persecution, torture, ill-treatment or other serious human rights violations.” 62 The principle is established in various human rights instruments, as well as in international refugee rules. 63 This principle constitutes the cornerstone of international refugee protection. Article 33(1) of the 1951 Convention states that: “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his [or her] life or freedom would be threatened on account of his [or her] race, religion, nationality, membership of a particular social group or political opinion.” 64 According to the analysis of UNHCR, “The non-refoulement obligation under Article 33 of the 1951 Convention is binding on all organs of a State party to the 1951 Convention and/or the 1967 Protocol as well as any other person or entity acting on its behalf. […] The obligation under Article 33(1) of the 1951 Convention not to send a refugee or asylum seeker to a country where he or she may be at risk of persecution is not subject to territorial restrictions; it applies wherever the State in question exercises jurisdiction.” 65 61 HANSEN, R. ‘StateControls: Borders, Refugees, andCitizenship’ in FIDDIAN-QASMIYEH, E., LOESCHER, G., LONG, K., SIGONA, N. (eds) The Oxford Handbook of Refugee and Forced Migration Studies (Oxford University Press 2014), < https://www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780199652433.001.0001/oxfordhb 9780199652433-e-032?print=pdf> accessed 31 May 2022, p. 1. 62 United Nations Commissioner for Human Rights, ‘The principle of non-refoulement under international human rights law’ accessed 27 May 2022. 63 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; International Convention for the Protection of All Persons from Enforced Disappearance; the Inter-American Convention on the Prevention of Torture; the American Convention on Human Rights; Charter of Fundamental Rights of the European Union. 64 189 UNTS 137, Article 33. 65 The UNRefugee Agency, ‘Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol’ (Geneva 26 January 2007) accessed 31 May 2022. 59 GOODWIN-GILL (n 55), para. 34. 60 Ibid.

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