Anaya Nolan
The right to asylum is a juridical concept that has been recognized by various ancient civilizations and is now enshrined in Article 14 of the 1948 Universal Declaration of Human Rights, which states that everyone has the right to seek asylum from persecution in other countries. While this declaration is non-binding, the right to asylum is also referenced in the 1951 Convention Relating to the Status of Refugees, which most countries are parties to. Despite this, the right to asylum is not universal in practice, as countries have different legal statuses and definitions for asylum rights and refugees. This has resulted in disparities among different states, as governments craft asylum laws based on their resources, national security concerns, and histories with forced migration movements.
| Characteristics | Values |
|---|---|
| Right of asylum | Recognized by Ancient Egyptians, Greeks, and Hebrews |
| Founded on the non-binding Universal Declaration of Human Rights | |
| The right to seek asylum was incorporated into international law following the atrocities of World War II | |
| Asylum seekers | May be of any age, gender, socioeconomic status, or nationality |
| Majority come from regions with conflict, disaster, and weak rule of law | |
| May be recognized as refugees according to the Convention Relating to the Status of Refugees | |
| May apply for asylum in the US, regardless of their status | |
| May be granted asylum in the US if they are deemed refugees | |
| Refugees | Defined as those unable or unwilling to return to their country due to a well-founded fear of persecution |
| Have the right to seek and enjoy asylum from persecution in other countries | |
| Must be granted certain rights like citizens of that State | |
| May have their movement restricted to designated areas, such as refugee camps | |
| May be returned to a "safe third country" if treated in accordance with basic humanitarian norms | |
| Countries like France have conserved the right of political asylum | |
| Non-refoulement | Refers to the obligation of states not to return refugees to territories where their life or freedom would be threatened |
| Is universally acknowledged as a human right |
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What You'll Learn
The right to asylum is a fundamental human right
The right to asylum is enshrined in Article 14 of the Universal Declaration of Human Rights (UDHR) of 1948. The UDHR is a milestone document in the history of human rights, drafted by representatives from across the world with diverse legal and cultural backgrounds. It sets out fundamental human rights to be universally protected and has been translated into over 500 languages. Article 14 of the UDHR states that "everyone has the right to seek and to enjoy in other countries asylum from persecution". This right is further supported by the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees.
While the UDHR is considered non-binding, the right to asylum as defined in it is referenced in the Convention Relating to the Status of Refugees, to which most countries are parties. The convention defines a refugee as someone "unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion". It is important to note that asylum seekers are distinguished from refugees, as asylum seekers are individuals who are in the process of submitting a formal request for refugee status in a foreign country and are awaiting the result of their application.
The right to asylum is further defined by Article 18 of the Charter of Fundamental Rights of the European Union. Asylum applications can be rejected based on criteria such as passage through a "safe" third country, safety threats, or fraudulent applications. In cases of large-scale influxes of asylum seekers or humanitarian crises, the receiving state (often a neighbouring country) is obliged to provide temporary asylum or subsidiary protection until a durable solution is found.
Despite the existence of these rights, it is important to recognise that the right to choose one's country of asylum is not absolute. Asylum seekers may be returned to a "safe third country" if they will be treated in accordance with basic humanitarian norms and civil rights. Additionally, the right to asylum does not grant individuals the ability to invoke persecution in cases of prosecutions arising from non-political crimes or acts contrary to the principles of the United Nations.
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Asylum seekers' rights before official recognition
The right of asylum, or the right of political asylum, is a juridical concept that grants people facing persecution by their own rulers the protection of another sovereign authority, such as a second country. This right has been recognised by various ancient civilisations and is enshrined in Article 14 of the Universal Declaration of Human Rights (UDHR) of 1948, which states that everyone has the right to seek and enjoy asylum from persecution in other countries. This right is further referenced in the Convention Relating to the Status of Refugees, also known as the 1951 Refugee Convention, which defines a refugee as someone who is unable or unwilling to return to their country due to a well-founded fear of persecution based on race, religion, nationality, social group membership, or political opinion.
While the UDHR and the Refugee Convention establish the fundamental human right to seek asylum, they do not guarantee that states will automatically grant asylum to those who request it. The granting of asylum is subject to criteria and procedures determined by international refugee law and the policies of individual countries. Asylum seekers may face challenges such as detention, uncertainty about the credibility of their claims, and varying legal statuses and definitions across different countries.
Before an asylum seeker receives official recognition as a refugee, they are in a vulnerable state, having left their country of origin and not yet having the legal protection and rights afforded to refugees. During this period, asylum seekers may be detained, particularly in countries like the United States, which argues that it has the right to detain asylum seekers instead of releasing them into the community. However, some US courts have held that asylum seekers meeting certain criteria have a right to a bond hearing, which could lead to their release from detention.
Asylum seekers also face challenges in navigating the complex asylum application process, which may include interviews, evidence submission, and legal representation. Their applications may be rejected for various reasons, including passage through a "safe" third country, the existence of a country of first asylum, or fraudulent applications. In the case of a large-scale influx of asylum seekers, the receiving state is obliged to provide temporary asylum or subsidiary protection until a durable solution is found or the situation in the asylum seekers' country of origin improves.
While awaiting the outcome of their asylum claims, asylum seekers have certain rights and protections. For example, in the United States, asylum seekers have the right to remain in the country while their claim for protection is pending. Additionally, international human rights organisations like Amnesty International advocate for the rights of asylum seekers, refugees, and migrants, campaigning for governments to honour their responsibility to protect these individuals.
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Criteria for rejection of asylum applications
The right of asylum is a juridical concept that grants persecuted people protection from another sovereign authority, such as a second country. While the Universal Declaration of Human Rights (UDHR) Article 14(1) states that everyone has the right to seek asylum from persecution in other countries, it is not binding, and there is no reciprocal and automatic obligation for states to grant asylum.
The criteria for rejection of asylum applications vary across countries, but some general reasons include:
- Passage via a "safe" third country or country of first asylum: Asylum applications can be rejected if the applicant passed through or has temporary protection in a "'safe'" third country before reaching the country where they are seeking asylum. The notion of ""internal asylum"" also falls under this category, where the request may be rejected if the foreigner could benefit from political asylum in a portion of their home country.
- Safe Country of Origin: If the asylum seeker is a national of a country considered "safe" by the relevant asylum authority, their application may be rejected. Lists of "safe countries" are maintained by some authorities, such as France's OFPRA.
- Safety Threat: Applications can be rejected if the applicant is deemed to pose a serious threat to public order or national security.
- Fraudulent Application or Abuse of Procedure: Asylum applications can be rejected if they are found to be fraudulent or if the applicant is deemed to be abusing the asylum procedure for reasons other than genuine persecution.
- Failure to Meet Basic Requirements: Asylum applications may be rejected if they are not submitted within the required timeframe, lack proper documentation or fees, or are incomplete.
- Changed Circumstances: In some countries, such as the United States, asylum applications may be rejected if there are changed circumstances that no longer materially affect the applicant's eligibility for asylum or if more than a year has passed since their arrival in the country.
- Bilateral or Multilateral Agreements: Asylum applications can be rejected if the applicant can be safely returned to their country of origin or another safe country, in accordance with bilateral or multilateral agreements, where their life or freedom would not be threatened due to race, religion, nationality, social group, or political opinion.
- Criminal History: Asylum may be denied to individuals with a criminal history, especially if they have been convicted of non-political crimes or acts contrary to the principles of the host nation or international organizations like the United Nations.
It is important to note that the criteria for rejection vary based on the legal framework of each country and the specific circumstances of each case. Asylum seekers have the right to legal representation and due process during the asylum application procedure.
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The non-refoulement principle
The principle of non-refoulement is a fundamental principle of international law, enshrined in the 1951 Convention Relating to the Status of Refugees, which forbids the deportation of asylum seekers to a country where their "life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group, or political opinion". This principle is based on the understanding that individuals have the right to flee persecution and seek asylum, as outlined in the Universal Declaration of Human Rights (UDHR), which states in Article 14(1) that "everyone has the right to seek and to enjoy in other countries asylum from persecution".
The importance of the non-refoulement principle lies in its role in addressing the failures of nations during World War II to provide refuge to those fleeing genocide at the hands of Nazi Germany. It serves as a collective memory of that time and ensures that refugees are not returned to countries where they face persecution or human rights violations. This principle is particularly relevant in the context of large-scale influxes of asylum seekers or humanitarian crises, where the receiving state, often a neighbouring country, is obligated to provide temporary asylum or subsidiary protection until a durable solution is found.
Despite the non-refoulement principle's significance, recent terrorist attacks have led to renewed calls for permitting refoulement in the interest of national security. States and the European Union are seeking ways to balance security concerns with human rights protections. However, the principle remains a crucial aspect of international law, and organisations like Amnesty International advocate for safe ways for refugees to start new lives, such as family reunification, community sponsorship, and access to work and study visas.
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The Universal Declaration of Human Rights and its influence
The Universal Declaration of Human Rights (UDHR) is a milestone document in the history of human rights. It was drafted by representatives from diverse legal and cultural backgrounds from across the globe, and it sets out fundamental human rights that should be universally protected. The UDHR was adopted by the United Nations General Assembly in Paris on December 10, 1948, in response to the atrocities of World War II. This declaration has been translated into over 500 languages and is considered the most translated document in the world, serving as a global roadmap for freedom, equality, and dignity.
The UDHR's 30 articles outline rights and freedoms that belong to everyone, regardless of race, colour, sex, sexual orientation, language, religion, political opinion, or other distinguishing factors. It emphasizes that human rights are interdependent and indivisible, and its adoption recognized human rights as the foundation for freedom, justice, and peace. The declaration has inspired and influenced the adoption of more than seventy human rights treaties, which are applied at global and regional levels.
One of the key influences of the UDHR is its recognition of the right to seek asylum from persecution in other countries. Article 14 of the UDHR establishes this right, which has been referenced in the Convention Relating to the Status of Refugees, a treaty that most countries are parties to. While the UDHR itself is non-binding, the right to asylum has been further defined and protected by other instruments, such as the 1951 UN Refugee Convention and its 1967 Protocol.
The UDHR has also influenced the development of refugee and asylum laws at regional levels. For example, Article 18 of the Charter of Fundamental Rights of the European Union defines the right of asylum within the EU. Additionally, the UDHR's principles have guided the UNHCR's recommendations on temporary asylum and subsidiary protection for large-scale influxes of asylum seekers during humanitarian crises.
The UDHR has had a significant impact on organizations like Amnesty International, which uses it as a foundation stone to fight for justice, freedom, truth, and dignity worldwide. The UDHR challenges us to defend human rights and disrupt world orders that reproduce historical injustices. It continues to be a living document, influencing education, cultural participation, scientific advancement, and social and international relations.
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Frequently asked questions
The law of asylum is a human right that grants protection to individuals and groups who are fleeing persecution and are unable to obtain protection in their home country.
The right to seek asylum is a human right that is recognised by international law and is referenced in the Convention Relating to the Status of Refugees, which most countries are parties to. However, the implementation of asylum laws varies across different countries due to factors such as national security concerns and historical contexts.
Asylum is granted to individuals who can demonstrate a well-founded fear of persecution based on race, religion, nationality, membership of a particular social group, or political opinion. The principle of non-refoulement, recognised as a universal human right, prohibits the return of refugees to countries where their life or freedom would be threatened.
