Right of asylum

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Asylum seekers by country of origin in 2009.
  40,000 asylum seekers
  30,000 asylum seekers
  20,000 asylum seekers
  10,000 asylum seekers
  <10,000 asylum seekers (or no data)
Remains of one of four medieval stone boundary markers for the sanctuary of Saint John of Beverley in the East Riding of Yorkshire.
Sanctuary ring on a door of Notre-Dame de Paris (France).
Medieval boundary marker at St. Georgenberg, Tyrol.
Plaque at St. Mary Magdalene Chapel, Dingli, Malta, indicating that the chapel did not enjoy ecclesiastical immunity

The right of asylum (sometimes called right of political asylum; from the Ancient Greek word ἄσυλον)[1][2] is an ancient juridical concept, under which people persecuted by their own rulers might be protected by another sovereign authority, like a second country or another entity which in medieval times could offer sanctuary. This right was recognized by the Ancient Egyptians, the Greeks, and the Hebrews, from whom it was adopted into Western tradition. René Descartes fled to the Netherlands, Voltaire to England, and Thomas Hobbes to France, because each state offered protection to persecuted foreigners.

The Egyptians, Greeks and Hebrews recognized a religious "right of asylum", protecting people (including those accused of crime) from severe punishments. This principle was later adopted by the established Christian church, and various rules were developed that detailed how to qualify for protection and what degree of protection one would receive.[3]

The Council of Orleans decided in 511, in the presence of Clovis I, that asylum could be granted to anyone who took refuge in a church or on church property, or at the home of a bishop. This protection was extended to murderers, thieves and adulterers alike.

That "Everyone has the right to seek and to enjoy in other countries asylum from persecution" is enshrined in the United Nations Universal Declaration of Human Rights of 1948 and supported by the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees.[4] Under these agreements, a refugee is a person who is outside that person's own country's territory owing to fear of persecution on protected grounds, including race, caste, nationality, religion, political opinions and participation in any particular social group or social activities.

Medieval England[edit]

In England, King Æthelberht of Kent proclaimed the first Anglo-Saxon laws on sanctuary in about 600 AD. However Geoffrey of Monmouth in his Historia Regum Britanniae (c. 1136) says that the legendary pre-Saxon king Dunvallo Molmutius (4th/5th century BC) enacted sanctuary laws among the Molmutine Laws as recorded by Gildas (c. 500–570).[5] The term grith was used by the laws of king Ethelred. By the Norman era that followed 1066, two kinds of sanctuary had evolved: all churches had the lower-level powers and could grant sanctuary within the church proper, but the broader powers of churches licensed by royal charter extended sanctuary to a zone around the church. At least twenty-two churches had charters for this broader sanctuary, including

Sometimes the criminal had to get to the chapel itself to be protected, or ring a certain bell, hold a certain ring or door-knocker, or sit on a certain chair ("frith-stool"). Some of these items survive at various churches. Elsewhere, sanctuary held in an area around the church or abbey, sometimes extending in radius to as much as a mile and a half. Stone "sanctuary crosses" marked the boundaries of the area; some crosses still exist as well. Thus it could become a race between the felon and the medieval law officers to the nearest sanctuary boundary. Serving of justice upon the fleet of foot could prove a difficult proposition.

Church sanctuaries were regulated by common law. An asylum seeker had to confess his sins, surrender his weapons, and permit supervision by a church or abbey organization with jurisdiction. Seekers then had forty days to decide whether to surrender to secular authorities and stand trial for their alleged crimes, or to confess their guilt, abjure the realm, and go into exile by the shortest route and never return without the king's permission. Those who did return faced execution under the law or excommunication from the Church.

If the suspects chose to confess their guilt and abjure, they did so in a public ceremony, usually at the church gates. They would surrender their possessions to the church, and any landed property to the crown. The coroner, a medieval official, would then choose a port city from which the fugitive should leave England (though the fugitive sometimes had this privilege). The fugitive would set out barefooted and bareheaded, carrying a wooden cross-staff as a symbol of protection under the church. Theoretically they would stay to the main highway, reach the port and take the first ship out of England. In practice, however, the fugitive could get a safe distance away, abandon the cross-staff and take off and start a new life. However, one can safely assume the friends and relatives of the victim knew of this ploy and would do everything in their power to make sure this did not happen; or indeed that the fugitives never reached their intended port of call, becoming victims of vigilante justice under the pretense of a fugitive who wandered too far off the main highway while trying to "escape."

Knowing the grim options, some fugitives rejected both choices and opted for an escape from the asylum before the forty days were up. Others simply made no choice and did nothing. Since it was illegal for the victim's friends to break into an asylum, the church would deprive the fugitive of food and water until a decision was made.

During the Wars of the Roses, when the Yorkists or Lancastrians would suddenly get the upper hand by winning a battle, some adherents of the losing side might find themselves surrounded by adherents of the other side and not able to get back to their own side. Upon realizing this situation they would rush to sanctuary at the nearest church until it was safe to come out. A prime example is Queen Elizabeth Woodville, consort of Edward IV of England.

In 1470, when the Lancastrians briefly restored Henry VI to the throne, Queen Elizabeth was living in London with several young daughters. She moved with them into Westminster for sanctuary, living there in royal comfort until Edward IV was restored to the throne in 1471 and giving birth to their first son Edward V during that time. When King Edward IV died in 1483, Elizabeth (who was highly unpopular with even the Yorkists and probably did need protection) took her five daughters and youngest son (Richard, Duke of York) and again moved into sanctuary at Westminster. To be sure she had all the comforts of home, she brought so much furniture and so many chests that the workmen had to knock holes in some of the walls to get everything in fast enough to suit her.[6]

Henry VIII changed the rules of asylum, reducing to a short list the types of crimes for which people were allowed to claim asylum. The medieval system of asylum was finally abolished entirely by James I in 1623.

Modern political asylum[edit]

The Dutch government grants asylum to a couple of hundred elderly from Yugoslavia, Poland, Hungary and the Baltic states. Since the end of World War II the people stayed in camps in Austria and West Germany. (Newsreel (in Dutch))

Article 14 of the Universal Declaration of Human Rights states that "Everyone has the right to seek and to enjoy in other countries asylum from persecution." The United Nations 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees guides national legislation concerning political asylum. Under these agreements, a refugee (or for cases where repressing base means has been applied directly or environmentally to the refugee) is a person who is outside that person's own country's territory (or place of habitual residence if stateless) owing to fear of persecution on protected grounds. Protected grounds include race, caste, nationality, religion, political opinions and membership or participation in any particular social group or social activities. Rendering true victims of persecution to their persecutor is a violation of a principle called non-refoulement, part of the customary and trucial Law of Nations.

These are the accepted terms and criteria as principles and a fundamental part in the 1951 United Nations Convention Relating to the Status of Refugees non-refoulement order.[7]

Since the 1990s, victims of sexual persecution (which may include domestic violence, or systematic oppression of a gender or sexual minority) have come to be accepted in some countries as a legitimate category for asylum claims, when claimants can prove that the state is unable or unwilling to provide protection.

Right of asylum by country of refuge[edit]

European Union[edit]

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.[8]


France was the first country to establish a constitutional right to asylum, this being enshrined in article 120 of the Constitution of 1793.[9] This constitution, however, never entered into force. The modern French right of asylum is laid down by the 1958 Constitution, vis-à-vis the paragraph 4 of the preamble to the Constitution of 1946, to which the Preamble of the 1958 Constitution directly refers. The Constitution of 1946 incorporated parts of the 1793 constitution which had guaranteed the right of asylum to "anyone persecuted because of his action for freedom" who are unable to seek protection in their home countries.

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[10] (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),[11] 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:

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.[14] 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.[15]

United Kingdom[edit]

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).[16] With the 1845 attempted bombing of the Greenwich Royal Observatory[citation needed] and the 1911 Siege of Sidney Street in the context of the propaganda of the deed (anarchist) actions, political asylum was restricted.[17]

United States[edit]

The United States recognizes the legal rights of asylum seeking refugees but only as specified by the U.S. Congress in the Immigration and Nationality Act (INA).[18][19][20] 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.[21][22] Of these, many are recommended for firm resettlement by the offices of the UNHCR around the world.

Asylum in the United States has three basic requirements. First, asylum applicants must not be convicted of a particularly serious crime or an aggravated felony.[23] Second, they must show a well-founded fear of persecution in their country of nationality and permanent residency.[24][25] Third, asylum applicants must show that they would be persecuted on account of at least one of the following protected grounds: (1) race; (2) religion; (3) nationality; (4) political opinion; or (5) membership in a particular social group.[18][26][27]

Asylum seekers are a disfavored group because many come from safe and fast developing countries such as China, which is racing to become a superpower.[28][29] Because too many people apply for asylum in the United States, majority of asylum claims fail or are rejected. Since World War II, more refugees have found homes here than any other nation. "Since the passage of the Refugee Act in 1980... the United States has admitted more than 3.1 million refugees."[30] 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.[31] 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).

See also[edit]

Notes and references[edit]

  1. ^ "Asylum – Definition". Merriam-Webster Dictionary. Retrieved 2012-08-17.
  2. ^ "asylum (n.)". Online Etymology Dictionary.
  3. ^ "Catholic Encyclopedia: Sanctuary".
  4. ^ "Convention and Protocol Relating to the Status of Refugees".
  5. ^ Geoffrey of Monmouth, Historia Regum Britanniae 2, 17
  6. ^ Historical Memorials of Westminster Abbey by Arthur Penrhyn Stanley, pp. 35–36
  7. ^ Convention Relating to the Status of Refugees, Article 33 (1)
  8. ^ A single asylum procedure and equitable to establish a uniform status valid throughout the European Union: the final building blocks of international protection are asked, Brussels, October 21, 2009 (press release Europa.eu)
  9. ^ Prof. Vincent Chetail (2008-09-16). "Helène Lambert, Francesco Messineo, and Paul Tiedemann, COMPARATIVE PERSPECTIVES OF CONSTITUTIONAL ASYLUM IN FRANCE, ITALY, AND GERMANY: REQUIESCAT IN PACE?, Refugee Survey Quarterly, Vol. 27, No. 3". Refugee Survey Quarterly. 27 (3): 16–32. doi:10.1093/rsq/hdn043. S2CID 145682715.
  10. ^ "Code de l'entrée et du séjour des étrangers et du droit d'asile" (in French). Legifrance. Retrieved 2013-07-10.
  11. ^ "Authority delegated to OFPRA by art. L. 722-1 of Code de l'entrée et du séjour des étrangers et du droit d'asile, J.O., 4 December 2009". Legifrance.gouv.fr.
  12. ^ "ofpra.gouv.fr".
  13. ^ Asile politique: la France ajoute cinq Etats à sa liste de pays «sûrs», Le Figaro, April 27, 2006 (in French)
  14. ^ "La porte étroite de l'asile politique", Le Figaro, February 13, 2007, p.20 (in French)
  15. ^ "How the US and the UK accept far fewer Afghan refugees than other countries". New Statesman. August 19, 2021. Retrieved 2021-12-06.
  16. ^ Lattek, Christine (2006-01-01). Revolutionary Refugees: German Socialism in Britain, 1840-1860. Psychology Press. ISBN 9780714651002.
  17. ^ Black, Gerry (2003-10-13). Jewish London: an illustrated history. Breedon. ISBN 9781859833636.
  18. ^ a b INA section 208, 8 U.S.C. § 1158 ("Asylum")
    • "Dep't of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959 (2020)". U.S. Supreme Court. Harvard Law School. June 25, 2020. p. 1965 n.4. A grant of asylum enables an alien to enter the country, but even if an applicant qualifies, an actual grant of asylum is discretionary.
    • "Garland v. Ming Dai, 141 S.Ct. 1669 (2021)". U.S. Supreme Court. Casetext.com. June 1, 2021. p. 1675. To win relief, Mr. Dai bore the burden of proving that he was a 'refugee'—someone 'unable or unwilling' to return to China 'because of persecution or a well-founded fear of persecution . . . for failure or refusal to undergo [involuntary sterilization] or for other resistance to a coercive population control program.'
      • "Aldana-Salguero v. Garland, No. 21-9516". U.S. Court of Appeals for the Tenth Circuit. Casetext.com. December 3, 2021. p. 1. To receive asylum, an applicant must be a 'refugee.' 8 U.S.C. § 1158(b)(1)(A). A refugee is a person who is unable or unwilling to return to his or her country because of persecution or a well-founded fear of persecution on account of any of five protected grounds: race, religion, nationality, membership in a particular social group, or political opinion.
  19. ^ "Mashiri v. Ashcroft, 383 F.3d 1112". U.S. Court of Appeals for the Ninth Circuit. Harvard Law School. November 2, 2004. p. 1120. Persecution may be emotional or psychological, as well as physical.
  20. ^ "Matter of D-X- & Y-Z-, 25 I&N Dec. 664" (PDF). Board of Immigration Appeals. U.S. Dept. of Justice. January 6, 2012. p. 666. It is well settled that an alien is not faulted for using fraudulent documents to escape persecution and seek asylum in the United States.
  21. ^ "Reznik v. U.S. Department of Justice, INS, 901 F. Supp. 188". U.S. District Court for the Eastern District of Pennsylvania. Harvard Law School. March 28, 1995. p. 193. Congress granted the President and Attorney General wide discretion in determining the admission of refugees to the United States.
  22. ^ "Vartelas v. Holder, 566 U.S. 257". U.S. Supreme Court. Harvard Law School. March 28, 2012. p. 262. Congress made 'admission' the key word, and defined admission to mean 'the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.' § 1101(a)(13)(A).
    • "Posos-Sanchez v. Garland, 3 F.4th 1176". U.S. Court of Appeals for the Ninth Circuit. Casetext.com. July 7, 2021. pp. 1182–83. The INA generally defines the words 'admission' and 'admitted' as 'the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.'
      • "Matter of D-K-, 25 I&N Dec. 761" (PDF). Board of Immigration Appeals. U.S. Dept. of Justice. April 12, 2012. p. 766. With regard to refugees, the language of both the Act and the regulations states that they are 'admitted' to the United States.
  23. ^ "Hernandez v. Holder, 760 F.3d 855". U.S. Court of Appeals for the Eighth Circuit. Harvard Law School. July 28, 2014. p. 859. An alien who has been convicted of an 'aggravated felony' is ineligible for asylum....
    • "Matter of G-G-S-, 26 I&N Dec. 339" (PDF). Board of Immigration Appeals. U.S. Dept. of Justice. July 17, 2014. p. 347 n.6. An alien who, 'having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States' is similarly barred from establishing eligibility for asylum....
  24. ^ "Refugees". U.S. Citizenship and Immigration Services. September 23, 2021. Retrieved 2021-11-17.
  25. ^ Rempell, Scott (2011-10-08). "Defining Persecution". Rochester, NY. SSRN 1941006. Cite journal requires |journal= (help)
  26. ^ "Matter of A-B-, 28 I&N Dec. 307". Attorney General. U.S. Dept. of Justice. June 16, 2021. Under the [INA], the Attorney General may grant asylum to individuals who meet several statutory requirements, including that they have suffered or fear (1) 'persecution,' (2) 'on account of,' (3) their 'race, religion, nationality, membership in a particular social group, or political opinion.'
  27. ^ "Eduard v. Ashcroft, 379 F.3d 182". U.S. Court of Appeals for the Fifth Circuit. Harvard Law School. July 21, 2004. p. 189. Moreover, a finding of a well-founded fear of persecution is negated if the applicant can avoid persecution by relocating to another part of his home country.
  28. ^ "Under Xi Jinping, the number of Chinese asylum-seekers has shot up". The Economist. July 28, 2021. Retrieved 2021-12-05.
  29. ^ "The United States Should Welcome Immigrants from China". Cato Institute. June 10, 2021. Retrieved 2021-12-05.
  30. ^ "U.S. Refugee Admissions Program". United States Department of State. Retrieved 2021-12-06.
  31. ^ "Asylum Seekers (most recent) by country". Nationmaster.com. Retrieved 2012-08-17.

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