Asylum

The Universal Declaration of Human Rights, proclaimed by the General Assembly of the United Nations in 1948, states that everyone has the right to seek and enjoy asylum from persecution. This starting point leads to several important observations. The first is that the notion of asylum is linked to the development of international human rights, which followed World War II. It is also crucial that even in this original text, asylum is qualified. The right is limited to asylum “from persecution,” a qualifier that politicizes the term. The Universal Declaration also states that asylum is not available to people fleeing legitimate prosecution [Page 101]or those who have acted against the principles and purposes of the United Nations. Finally, the right is to seek asylum and not to be granted asylum. From these starting points, international refugee law has developed.

The concepts of “refugee” and “asylum” are inextricably linked. Refugees are people to whom asylum is granted. Asylum is the protection granted to refugees. There have historically been some differences between countries regarding qualifications for this status, but these differences have now largely disappeared in favor of a widely respected international commitment.

Since 1951, there has been an international agreement regarding who qualifies as a refugee. A refugee is someone who is outside his or her country of origin and is at risk of being persecuted if he or she returns. The persecution risk must be at least partially for reasons of race, religion, nationality, political opinion, or group membership. The refugee definition, which sets out these key ideas, is the centerpiece of the agreement known as the Refugee Convention. Its formal name is the Convention Relating to the Status of Refugees. This is now one of the most widely ratified treaties in the world: by October 2008, 144 countries were party to this agreement.

When people leave their own country and ask another country to protect them as refugees, they are said to be seeking asylum. In some places, those seeking this kind of protection are called refugee claimants; in others, they are called asylum seekers. The terms are interchangeable in a legal sense, although they do tell us something about the national origins of those who use them. As the international definition of refugee is now widely accepted, there are no remaining differences between refugee claimants and asylum seekers. The vast majority of nations in the world use the refugee definition to determine who is entitled to asylum. There is, however, nothing preventing any nation from granting asylum on any other basis.

The main benefit of refugee status is protection against non-refoulement. This means that refugees cannot be returned to a place where they are at risk of being persecuted. In most cases, this is their home. This commitment means that refugees have a right to remain in the country that is protecting them, because is it virtually impossible to send them on to a place where they are neither citizens nor residents. In addition to this protection, the Refugee Convention establishes the human rights to which all refugees are entitled. These include, among others, freedom from discrimination, a right to work, access to education, and access to the courts. In general, refugees are not to be treated more harshly than citizens or than foreign nationals who have status under immigration laws. Refugees also must not be punished for entering any country illegally.

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