The legal status of people who have entered Australia by boat without a visa is complex and potentially confusing. Their entry is not legally authorised but is not a criminal offence. The Australian Government usually refers to such entrants as "unauthorised boat arrivals" or "irregular maritime arrivals" but they are also "unlawful non-citizens" under the Migration Act.

Entrants by boat without a visa are entitled to seek asylum and, in practice, almost all of them do so. If the Government’s initial processing suggests they may have a valid case, they are classified as "asylum seekers" and allowed to stay in Australia while the claim is being finally determined. They remain "unlawful non-citizens" until their claim is approved (whereupon they get a permanent protection visa) or they receive a "bridging visa" pending finalisation of their claim. If their claim is rejected, they have not committed an offence but are liable to deportation.

Most entrants by boat without a visa do not seek to evade the authorities upon arrival. Instead, they seek to establish a legal right to stay as a refugee. Their position is very different from those people, including many who arrive with a short-term visa, who seek to remain permanently in the country on a clandestine basis (that is, "over-stayers").

In these circumstances, great care must be taken to avoid describing people who arrived by boat without a visa in terms that are likely to be inaccurate or unfair in relation to at least some of them. This can arise, for example, if the terms can reasonably be interpreted as implying criminality or other serious misbehaviour on the part of all or many people who arrive in this manner.

Depending on the specific context, therefore, terms such as "illegal immigrants" or "illegals" may constitute a breach of the Council’s Standards of Practice on these grounds. The risk of breach can usually be avoided by using a term such as "asylum seekers" although in some cases, of course, the context may require reference to their unlawful or unauthorised entry or their status as unlawful non-citizens pending determination of their claims (if they do not have bridging visas).

Note: This Guideline replaces the Council’s earlier Guideline No. 288, dated October 2009.