In short it is the respondents’ contention that Article 31 allows the refugee no element of choice as to where he should claim asylum. He must claim it where first he may: only
considerations of continuing safety would justify impunity for further travel. 18. For my part I would reject this argument. Rather I am persuaded by the
applicants’ contrary submission, drawing as it does on the travaux préparatoires, various Conclusions adopted by UNHCR’s executive committee (ExCom), and the
writings of well respected academics and commentators (most notably Professor Guy Goodwin-Gill, Atle Grahl-Madsen, Professor James Hathaway and Dr Paul
Weis), that some element of choice is indeed open to refugees as to where they may properly claim asylum. I conclude that any merely short term stopover en
route to such intended sanctuary cannot forfeit the protection of the Article, and that the main touchstones by which exclusion from protection should be judged are
the length of stay in the intermediate country, the reasons for delaying there (even a substantial delay in an unsafe third country would be reasonable were the time
spent trying to acquire the means of travelling on), and whether or not the refugee sought or found there protection de jure or de facto from the persecution they were
fleeing