Kara Sears
Asylum law, or the right to seek humanitarian protection, was incorporated into international law after World War II. The United Nations' 1951 Convention Relating to the Status of Refugees and its 1967 Protocol Relating to the Status of Refugees define a refugee as someone who is unable or unwilling to return to their home country due to past persecution or a well-founded fear of future persecution based on race, religion, nationality, membership in a particular social group, or political opinion. The US incorporated this definition into its immigration law with the Refugee Act of 1980, which established two paths to refugee status: resettlement from abroad or seeking asylum at the US border. While seeking asylum is legal under US and international law, recent US policies have restricted access to asylum.
| Characteristics | Values |
|---|---|
| Definition of Asylum | A protection granted by a state to a foreign citizen against their own state |
| Definition of Refugee | A person who is unable or unwilling to return to their home country and cannot obtain protection in that country, due to past persecution or a well-founded fear of being persecuted in the future on the basis of race, religion, nationality, membership in a particular social group, or political opinion |
| Right to Seek Asylum | Incorporated into international law following World War II |
| US Asylum Law | The Refugee Act of 1980 established two paths to obtain refugee status: either from abroad, as a resettled refugee, or at the border of the United States as a person seeking asylum |
| Current US Asylum Policies | Recent US administrations have restricted access to asylum; on January 20, 2025, President Trump indefinitely suspended the right to seek asylum at the southern border |
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What You'll Learn
The 1951 UN Convention relating to the Status of Refugees
The 1951 United Nations Convention relating to the Status of Refugees is a key document that forms the basis of the UNHCR's work. The Convention was opened for signature in Geneva on 28 July 1951 and was subsequently deposited with the Secretary-General of the United Nations. It was initially limited to protecting European refugees in the aftermath of World War II, as indicated by the phrase “events occurring before 1 January 1951," which was widely understood to refer to events in Europe.
The Convention defines a refugee as a person who is unable or unwilling to return to their home country and cannot obtain protection there due to past persecution or a well-founded fear of future persecution based on race, religion, nationality, membership in a particular social group, or political opinion. This definition was later incorporated into U.S. immigration law through the Refugee Act of 1980, which established two paths to obtaining refugee status: resettlement from abroad or seeking asylum at the border.
The core principle of the 1951 Convention is non-refoulement, which asserts that a refugee should not be returned to a country where they face serious threats to their life or freedom. It outlines the basic minimum standards for the treatment of refugees, including the right to housing, work, and education, and specifies the obligations of both refugees and host countries. The Convention also details the legal obligations of the States that are party to it.
The 1951 Convention has been subject to only one amendment, the 1967 Protocol, which removed the geographic and time-based limitations, expanding its application to protect all persons fleeing conflict and persecution. This protocol was adopted on 4 October 1967 and further solidified the rights of refugees at an international level.
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The 1967 Protocol Relating to the Status of Refugees
The 1951 United Nations Convention Relating to the Status of Refugees restricted refugee status to those whose circumstances had arisen before 1 January 1951. It also gave signatory states the option to interpret this date restriction as applying only to events occurring in Europe. However, the 1967 Protocol Relating to the Status of Refugees, which entered into force on 4 October 1967, removed these temporal and geographic restrictions. This was necessary due to the emergence of new refugee situations resulting from decolonisation.
The 1967 Protocol is a significant treaty in international refugee law, with 146 countries being parties to it. It gave states that had previously ratified the 1951 Convention and chosen the Europe-only definition the option to retain the temporal restriction or adopt the new, broader definition. Only four states—the Republic of the Congo, Madagascar, Monaco, and Turkey—chose the former option. Congo and Monaco later dropped the restriction upon ratifying the 1967 Protocol, while Turkey retained it, and Madagascar has not ratified the protocol.
The 1967 Protocol defines a refugee as a person who is unable or unwilling to return to their home country and obtain protection there due to past persecution or a well-founded fear of future persecution based on race, religion, nationality, membership in a particular social group, or political opinion. This definition was incorporated into US immigration law through the Refugee Act of 1980, which established two paths to obtaining refugee status: resettlement from abroad or seeking asylum at the border of the United States.
The 1967 Protocol imposes obligations on its state parties to cooperate with the Office of the United Nations High Commissioner for Refugees or any successor agency. State parties are required to facilitate the High Commissioner's duty of supervising the application of the Protocol's provisions and providing information and statistical data to enable reporting to the competent organs of the United Nations. Additionally, state parties must communicate to the UN Secretary-General the laws and regulations they adopt to ensure the application of the Protocol.
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US Immigration Law
Over time, US asylum laws have evolved with various legislative changes. In 1948, the US Congress enacted the first refugee legislation, reflecting the country's tradition of offering safe haven. This law provided for the admission of displaced Europeans after World War II. Later laws addressed refugees fleeing Communist regimes and, in the 1960s, Cubans escaping Fidel Castro.
The process of seeking asylum in the US can be navigated affirmatively or defensively. Affirmative asylum allows individuals physically present in the US, regardless of their immigration status, to apply through the USCIS. If an asylum officer deems them eligible, they may be granted asylum. Otherwise, the case is referred to an immigration court for removal proceedings, where defensive asylum can be sought.
To win asylum, an individual must provide evidence of past persecution or a "well-founded fear" of future persecution in their home country based on protected grounds such as race, religion, political opinion, nationality, or membership in a particular social group. The asylum process has faced criticism for its complexity and the involvement of multiple government agencies.
In recent years, there have been calls to redesign asylum laws to balance humanitarian concerns with border security. The Biden administration has proposed changes, such as restricting asylum eligibility to those who have previously applied for asylum in countries they travelled through to reach the US. Additionally, the Real ID Act of 2005 imposed further limitations, requiring asylum seekers to provide corroborating documents and making it easier for adjudicators to deny claims based on credibility concerns.
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Asylum seeker rights
Asylum seekers in the United States have specific rights under both international and national law. The right to seek asylum is a fundamental human right. Asylum seekers have the right to legally enter the US to seek asylum, even without proper documentation. However, they are not entitled to permanent legal status or public benefits until their asylum request is approved.
The asylum process can be complex and involve multiple government agencies. Asylum seekers must prove that they meet the definition of a refugee, which is defined by the United Nations' 1951 Refugee Convention and 1967 Protocol as a person who is "unable or unwilling to return to their home country and cannot obtain protection in that country, due to past persecution or a well-founded fear of being persecuted in the future on account of race, religion, nationality, membership in a particular social group, or political opinion". The US incorporated this definition into its immigration law with the Refugee Act of 1980.
Asylum seekers have the right to a fair and impartial hearing, access to legal representation, and protection from deportation until their case is resolved. They cannot be detained indefinitely without a fair hearing and must be protected against unlawful search and seizure. Asylum seekers can apply for asylum affirmatively or defensively, and a 2022 regulation created a third pathway that includes elements of both processes on an expedited timeline.
Asylum seekers who are denied asylum can appeal the decision to the Board of Immigration Appeals and the appropriate Circuit Court of Appeals. If their asylum application is deemed frivolous, they may be permanently ineligible for any benefits. Asylum seekers may also be subject to electronic monitoring as an "alternative to detention".
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The US Refugee Act of 1980
The 1980 Act changed the definition of a "refugee" to a person with a ""well-founded fear of persecution", in accordance with the United Nations' 1951 Convention Relating to the Status of Refugees and 1967 Protocol Relating to the Status of Refugees. This definition was incorporated into US immigration law, which, as a signatory to the 1967 Protocol, has legal obligations to provide protection to those who qualify as refugees.
The Refugee Act of 1980 established two paths to obtain refugee status: from abroad as a resettled refugee, or at the border of the United States as a person seeking asylum. To apply for asylum, an individual must be physically present in the United States or arrive at a port of entry. They must then prove to the government that they meet the definition of a refugee by providing evidence that they have suffered persecution in their home country on account of race, religion, nationality, membership in a particular social group, or political opinion, and/or that they have a "well-founded fear" of future persecution in their home country.
It is important to note that asylum is technically a "discretionary" status, meaning that some individuals can be denied asylum even if they meet the definition of a refugee. Asylum seekers must navigate a difficult and complex process that can involve multiple government agencies.
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Frequently asked questions
Asylum law was created following World War II, with the 1951 Convention Relating to the Status of Refugees, also known as the 1951 Refugee Convention.
The 1951 Refugee Convention is a United Nations treaty that defines the term "refugee" and outlines the rights of displaced people and the legal obligations of states providing them with protection.
Asylum law and refugee law are closely related. Asylum is a form of protection granted to individuals who meet the legal definition of a refugee and are unable or unwilling to return to their country due to a well-founded fear of persecution.
