Right of asylum

Medieval boundary marker at St. Georgenberg, Tyrol

Asylum in European Union member states formed over a half-century by application of the Geneva Convention of 28 July 1951 on the Status of Refugees. Common policies appeared in the 1990s in connection with the Schengen Agreement (which suppressed internal borders) so that asylum seekers unsuccessful in one Member State would not reapply in another. The common policy began with the Dublin Convention in 1990. It continued with the implementation of Eurodac and the Dublin Regulation in 2003, and the October 2009 adoption of two proposals by the European Commission.[9] However, until today, the member states principally stay in charge for granting and organizing asylum. War refugees are protected under the subsidiary protection clause and the Temporary Protection Directive.

Sanctuary ring on a door of Notre-Dame de Paris (France)

France was the first country to establish a constitutional right to asylum, in Article 120 of the Constitution of 1793, for "foreigners banished from their fatherland for the cause of liberty".[10] This constitution, however, never entered into force. The Preamble of the Constitution of 1946 similarly guaranteed the right of asylum to "anyone persecuted because of his activities in the cause of freedom".[11] The modern French right of asylum is secured by the Preamble of the Constitution of 1958, via a reference to the Preamble of the 1946 Constitution.[12]

In addition to the constitutional right to asylum, the modern French right to asylum (droit d'asile) is enshrined on a legal and regulatory basis in the Code de l'Entree et du Sejour des Etrangers et du Droit d'Asile[13] (CESEDA).

France also adheres to international agreements which provide for application modalities for the right of asylum, such as the 1951 United Nations (UN) Convention Relating to the Status of Refugees (ratified in 1952), the additional 1967 protocol; articles K1 and K2 of the 1992 Maastricht Treaty as well as the 1985 Schengen Agreement, which defined EU immigration policy. Finally, the right of asylum is defined by article 18 of the Charter of Fundamental Rights of the European Union.

Some of the criteria for which an asylum application can be rejected include: i) Passage via “safe" third country, ii) Safe Country of Origin (An asylum seeker can be a prior refused asylum if they are a national of a country considered to be "safe" by the French asylum authority OFPRA),[14] iii) Safety Threat (serious threat to the public order), or iv) Fraudulent Application (abuse of the asylum procedure for other reasons).

The December 10, 2003, law limited political asylum through two main restrictions:

• The notion of "internal asylum": the request may be rejected if the foreigner may benefit from political asylum on a portion of the territory of their home country.
• The OFPRA (Office français de protection des réfugiés et apatrides – French Office for the Protection of Refugees and Stateless Persons)[15] now makes a list of allegedly "safe countries" which respect political rights and principles of liberty. If the demander of asylum comes from such a country, the request is processed in 15 days, and receives no social assistance protection. They may contest the decision, but this does not suspend any deportation order. The first list, enacted in July 2005, included as "safe countries" Benin, Cape Verde, Ghana, Mali, Mauritius Island, India, Senegal, Mongolia, Georgia, Ukraine, Bosnia and Croatia. It had the effect of reducing in six months by about 80% the number of applicants from these countries. The second list, passed in July 2006, included Tanzania, Madagascar, Niger, Albania and Macedonia.[16]

While restricted, the right of political asylum has been conserved in France amid various anti-immigration laws. Some people claim that, apart from the purely judicial path, the bureaucratic process is used to slow down and ultimately reject what might be considered as valid requests. According to Le Figaro, France granted 7,000 people the status of political refugee in 2006, out of a total of 35,000 requests; in 2005, the OFPRA in charge of examining the legitimacy of such requests granted less than 10,000 from a total of 50,000 requests.[17] Numerous exiles from South American dictatorships, particularly from Augusto Pinochet's Chile and the Dirty War in Argentina, were received in the 1970s-80s. During the war in Afghanistan (2001–2021), tens of thousands of Afghan refugees were granted asylum in France.[18]

Remains of one of four medieval stone boundary markers for the sanctuary of Saint John of Beverley in the East Riding of Yorkshire

In the 19th century, the United Kingdom accorded political asylum to various persecuted people, among whom were many members of the socialist movement (including Karl Marx).[19] With the 1845 attempted bombing of the Greenwich Royal Observatory and the 1911 Siege of Sidney Street in the context of the propaganda of the deed (anarchist) actions, political asylum was restricted.[20]

The United States recognizes the right of asylum of individuals as specified by international and federal law. In accordance with international law, the United States considers asylum candidates on the basis of persecution or fear they will be persecuted on account of race, religion, nationality, and/or membership in a particular social group or political opinion.[21]

Every year, the President of the United States specifies a number of legally defined refugees who are granted refugee status outside the United States to be admitted to the country under 8 U.S.C. § 1157.[22] Of these, many are recommended for firm resettlement by the offices of the UNHCR around the world. The annual number of refugees admitted varies from year to year and is determined by a joint collaboration between the incumbent Presidential administration and Congress. By contrast, the United States does not enforce any such quota for asylum seekers. Rather, the annual number of asylum grants is dependent upon a combination of how many individuals submit applications and how many individuals are able to successfully prove their asylum claim.[23]

According to US law, individuals are eligible for asylum status based on the following conditions:[24]

• Meet the definition of refugee
• Are already inside the United States
• Are seeking admission at a port of entry

There are two main types of asylum an applicant can request under US law: affirmative asylum and defensive asylum. To apply for affirmative asylum, applicants must be physically present in the United States, regardless of their current immigration status. In most cases, affirmative asylum applications must be filed within one year of arriving in the United States. Defensive asylum is typically filed by individuals seeking to request a defense against removal or deportation from the United States. The primary distinction between these two processes is whether removal proceedings have been initiated for an applicant. If an individual has been placed in removal proceedings they must seek defensive asylum. If an individual has not been placed in removal proceedings, they are able to seek affirmative asylum. [25]

The majority of asylum claims fail or are rejected. Still, since World War II, more refugees have found homes in the United States than any other nation. "Since the passage of the Refugee Act in 1980... the United States has admitted more than 3.1 million refugees."[26] During much of the 1990s, the United States accepted over 100,000 refugees per year, though this figure has recently decreased to around 50,000 per year in the first decade of the 21st century, due to greater security concerns. As for asylum seekers, the latest statistics show that 86,400 persons sought sanctuary in the United States in 2001.[27] Before the September 11 attacks in 2001, individual asylum applicants were evaluated in private proceedings by officers of the former Immigration and Naturalization Service (INS). In the aftermath of the attacks, the United States established three distinct organizations that each handle a different aspect of US immigration law, including the US Citizenship & Immigration Services (USCIS), Immigration & Customs Enforcement (ICE), and Customs & Border Protection (CFB). Asylum applications are handled by the USCIS.[28]

Despite this, concerns have been raised with the U.S. asylum and refugee determination processes. A recent empirical analysis by three legal scholars described the U.S. asylum process as a game of refugee roulette; that is to say that the outcome of asylum determinations depends in large part on the personality of the particular adjudicator to whom an application is randomly assigned, rather than on the merits of the case. The very low numbers of Iraqi refugees accepted between 2003 and 2007 exemplifies concerns about the United States' refugee processes. The Foreign Policy Association reported that:

Perhaps the most perplexing component of the Iraq refugee crisis... has been the inability for the U.S. to absorb more Iraqis following the 2003 invasion of the country. To date, the U.S. has granted fewer than 800 Iraqis refugee status, just 133 in 2007. By contrast, the U.S. granted asylum to more than 100,000 Vietnamese refugees during the Vietnam War.

Refugee and asylum policy advocates have called for a system based upon the "human interest approach" which seeks to allow asylum applicants be assessed on a case-by-case basis, as opposed to being assessed against other applicants. Under the US asylum structure, applicants' cases are often analyzed based on the strength of their educational/professional qualifications or on the level of danger they face in their country of origin. Amongst the academic community, such an approach is considered to be the narrative of the "gifted or traumatized" refugee. By contrast, the human-interest approach experts advocate for seeks to reframe the application process around the individual and focus on each applicant's unique story and experience.[29]

Paragraph 2 of Article 32 of the Constitution of the People's Republic of China stipulates that China may grant asylum to foreigners who request it for political reasons.

In 1979, Hoàng Văn Hoan, the Vice Chairman of the National Assembly of Vietnam, was the last foreigner to be granted political asylum by China. From 1980 to the present, no foreigner has been granted political asylum by China. All foreigners who have been granted political asylum in China are foreign pro-communist political leaders.

In April 2023, Latvia approved the asylum application of a Russian citizen. He had previously been harassed by authorities for his support of Russian opposition Alexei Navalny, and he faced court-martial for alleged war crimes after Russia invaded Ukraine in 2022 for objecting to military service.[30]