Isabella Carter
The right of asylum, or the right of political asylum, is a juridical concept that grants protection to individuals who are unable or unwilling to return to their country due to persecution or a well-founded fear of future persecution based on race, religion, nationality, membership in a particular social group, or political opinion. While asylum is not explicitly mentioned in the US Constitution, it is recognized as a legal right in the United States, with asylum seekers afforded certain protections under US and international law. The process of seeking asylum in the US can be complex and involves multiple government agencies, with applicants needing to meet specific eligibility requirements.
| Characteristics | Values |
|---|---|
| Right of asylum | A juridical concept that protects people persecuted by their own rulers from another sovereign authority |
| A right 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, as each state offered protection to persecuted foreigners | |
| The modern French right of asylum is secured by the Preamble of the Constitution of 1958 | |
| The right of asylum is enshrined by the United Nations in the Article 14 of the Universal Declaration of Human Rights of 1948 | |
| The right of asylum is also enshrined in the Code of Entry and Residence of Foreigners and of the Right to Asylum in France | |
| France adheres to international agreements that provide for application modalities for the right of asylum, such as the 1951 United Nations (UN) Convention Relating to the Status of Refugees | |
| The US Department of Justice data from 2023 shows a rate of granting asylum at 14.40%, a denial rate at 15.67%, administrative closure at 8.98%, and other at 60.95% | |
| Asylum seekers must navigate a difficult and complex process that can involve multiple government agencies | |
| Asylum is a protection granted to foreign nationals in the United States or at the border who meet the international law definition of a "refugee" | |
| An asylee is protected from being returned to their home country, is authorized to work in the United States, and can apply for a Social Security card | |
| Asylum is a "discretionary" status, meaning that some individuals can be denied asylum even if they meet the definition of a refugee | |
| Asylum seekers must be in the U.S. or at a port of entry to request the opportunity to apply for asylum | |
| Asylum seekers can apply affirmatively or defensively | |
| The Attorney General may establish additional limitations and conditions under which an alien shall be ineligible for asylum |
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What You'll Learn
Asylum in the US
Asylum is a protection granted to foreign nationals in the United States or at its border who meet the international law definition of a "refugee". The United Nations 1951 Convention and 1967 Protocol define a refugee 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 future persecution based on race, religion, nationality, membership in a particular social group, or political opinion. The right to seek asylum was incorporated into international law following World War II and has been recognized since ancient times.
In the United States, asylum seekers can apply for asylum through two primary processes: affirmatively and defensively. Affirmative asylum is available to individuals who are not in removal proceedings and can apply through U.S. Citizenship and Immigration Services (USCIS). If the application is denied, the applicant is referred to an immigration court, where they can renew their request through the defensive process. Defensive asylum is applied for as a defence against removal from the U.S. by individuals in removal proceedings, who file their application with an immigration judge. In 2022, the Asylum Processing Rule created a third pathway for some individuals arriving from the border, offering an expedited process that combines elements of both affirmative and defensive asylum processes.
The asylum process in the United States can be challenging and complex, involving multiple government agencies. The burden of proof lies with the applicant, who must demonstrate that they meet the definition of a refugee and that their fear of persecution is well-founded. The credibility of the applicant is assessed based on their demeanor, candor, responsiveness, and the consistency and plausibility of their account. Despite the existence of established rights under U.S. and international law, the U.S. government has faced criticism for restricting access to asylum at the border. Policies such as the Migrant Protection Protocols (MPP) or "Remain in Mexico" have forced asylum seekers to wait outside the country. During the COVID-19 pandemic, the Trump administration implemented Title 42, a public health rule that allowed for the expulsion of asylum seekers without considering their cases.
If asylum is granted, individuals are protected from being returned to their home country and are authorized to work in the United States. They can apply for a Social Security card, request permission to travel overseas, and petition to bring their family members to the U.S. After one year, they may apply for lawful permanent resident status, and after five years, they can apply for citizenship. In 2023, the U.S. Department of Justice reported that out of 478,885 asylum applications filed, 31,630 were granted, resulting in a granting rate of 14.40%.
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Right of asylum in France
France has a long tradition of offering asylum to foreign refugees, and the right to asylum is constitutionally guaranteed. The country's asylum law is heavily based on international and European law, but is largely codified in the Code de l’entrée et du séjour des étrangers et du droit d’asile (CESEDA, Code of Entry and Residence of Foreigners and of the Right of Asylum).
The Constitution of 1793, drafted during the French Revolution, provided that France should "give asylum to foreigners who have been banished from their homeland for the cause of liberty" and should "refuse [asylum] to tyrants". While this constitution was never implemented, France was the first country to establish a constitutional right to asylum. The preamble to the French Constitution of 1946, which was incorporated by reference into the preamble of the current Constitution of 1958, declared that “ [a]ny man persecuted in virtue of his actions in favor of liberty may claim the right of asylum upon the territories of the Republic.” This was confirmed by the Constitutional Council in 1993, which ruled that asylum is a constitutional right for those who qualify and that asylum applicants have a general right to stay in France until their request has been processed.
In addition to the constitutional right to asylum, the modern French right to asylum (droit d'asile) is enshrined in the Code of Entry and Residence of Foreigners and of the Right to Asylum. France also adheres to international agreements that 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 1967 protocol, articles K1 and K2 of the 1992 Maastricht Treaty, and the 1985 Schengen Agreement. The right of asylum is also defined by article 18 of the Charter of Fundamental Rights of the European Union.
French asylum law recognizes two types of asylum protection: refugee protection and subsidiary protection. Asylum seekers must be on French territory or at a French border crossing point to request asylum. They can either request a special visa for asylum application from a French embassy/consulate or get a temporary visa for up to 8 days at the border. They then need to register as "asylum seekers" at a "GUDA" (a single-desk contact point) and get a formal certificate to lodge the application form. The OFPRA (French Office for the Protection of Refugees and Stateless Persons) handles all asylum applications and conducts investigations into each applicant's circumstances, including the situation in their country of origin and any past harm or threats they have faced. After the evaluation, OFPRA decides whether to grant asylum status. If the application is unsuccessful, applicants can appeal to the CNDA (National Court of Asylum) within one month.
Asylum may be denied or revoked for individuals who pose a threat to society or national security, have been convicted of serious crimes, or have been sentenced or punished for terrorism. In 2020, the European Court of Human Rights (ECHR) condemned France for the “inhuman and degrading living conditions” of three asylum seekers. There are also controversies surrounding the current system of French asylum policies, including issues related to the assimilation policy, national security, and living conditions of asylum seekers.
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Refugee status
The right to asylum, or the right to political asylum, is a juridical concept that protects individuals persecuted by their own rulers. This concept has been recognized by various ancient civilizations, including the Egyptians, Greeks, and Hebrews, and was later adopted into Western tradition. The modern interpretation of this right is founded on the non-binding Universal Declaration of Human Rights by the United Nations in 1948.
In the context of refugee status, asylum seekers are individuals who meet the international law definition of a "refugee." The United Nations 1951 Convention and 1967 Protocol define a refugee as someone who is unable or unwilling to return to their home country and cannot obtain protection there due to past or feared future persecution based on race, religion, nationality, membership in a particular social group, or political opinion. This definition has been incorporated into the immigration laws of various countries, including the Refugee Act of 1980 in the United States.
The process of seeking refugee status or asylum can be complex and involves multiple steps and government agencies. In the United States, there are two primary ways to apply for asylum: affirmatively and defensively. An affirmative asylum application is for individuals who are not in removal proceedings and can be submitted through the U.S. Citizenship and Immigration Services (USCIS). If the application is denied, the applicant may be referred to an immigration court, where they can renew their request through the defensive process. Defensive asylum is applied for as a defense against removal from the country and involves filing the application with an immigration judge.
It is important to note that asylum is considered a "discretionary" status, meaning that even if an individual meets the definition of a refugee, they may still be denied asylum. In such cases, alternative forms of protection, such as "withholding of removal," may be available to protect them from harm. Additionally, when asylum claims are rejected, the principle of non-refoulement applies, which forbids the deportation of asylum seekers to countries where their life or freedom would be threatened due to the reasons mentioned above.
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Asylum application process
The asylum application process in the United States involves multiple government agencies and can be navigated through two primary pathways: affirmative asylum and defensive asylum. A third pathway, created in 2022, is available for some individuals arriving from the border and includes elements of both affirmative and defensive asylum processes on an expedited timeline.
Affirmative Asylum
To be eligible for affirmative asylum, the applicant must not be in removal proceedings. An exception is made for those designated as "unaccompanied children", even if they are in removal proceedings. The applicant must file Form I-589, Application for Asylum and for Withholding of Removal, with the United States Citizenship and Immigration Services (USCIS) within one year of their last arrival in the United States. However, there are exceptions to this timeline, including changed circumstances that materially affect their eligibility for asylum or extraordinary circumstances related to the delay in filing. After receiving the completed application, the USCIS schedules a biometrics services appointment and initiates security vetting. The applicant then undergoes an Asylum Merits Interview, where they must demonstrate a credible fear for their safety if removed from the US. If the asylum application is denied by the USCIS asylum officer, the applicant (without lawful immigration status) is referred to an immigration court for removal proceedings, where they can renew their asylum request through the defensive process.
Defensive Asylum
Defensive asylum is sought by individuals already in removal proceedings. The applicant files the application with an immigration judge at the Executive Office for Immigration Review (EOIR). The defensive process involves the judge hearing from both the asylum seeker (and their attorney, if they have one) and the US government (represented by an ICE attorney). If the judge deems the applicant eligible, asylum is granted. If not, the judge determines whether the applicant meets the criteria for any other forms of relief from removal. Both parties can appeal the decision. The defensive process can take significantly longer than the affirmative process.
Additional Information
Asylum seekers may be eligible to obtain a work permit (Employment Authorization Document) based on a pending asylum application. However, eligibility determination can be challenging due to changing requirements and multiple criteria. Thus, it is recommended that asylum seekers consult an immigration attorney before applying for employment authorization. If granted asylum, the beneficiary is immediately authorized to work and may also be eligible for certain government programs, such as Medicaid or Refugee Medical Assistance. After one year, they can apply for lawful permanent resident status (a green card) and must wait four more years to apply for citizenship.
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History of asylum
The right to asylum, or the right to political asylum, is a juridical concept that grants protection to individuals persecuted by their own government. The concept, which has its roots in the Ancient Egyptian, Greek, and Hebrew traditions, was adopted into Western tradition, with the likes of René Descartes, Voltaire, and Thomas Hobbes seeking asylum in the Netherlands, England, and France, respectively. The contemporary right of asylum is founded on the non-binding Universal Declaration of Human Rights, enshrined by the United Nations in the Article 14 of the 1948 declaration.
The right to asylum was first established as a constitutional right in France in 1793, with Article 120 of the Constitution of 1793 granting asylum to "foreigners banished from their fatherland for the cause of liberty". The French right to asylum was further strengthened by the Preamble of the Constitution of 1958, which referenced the Preamble of the 1946 Constitution, guaranteeing the right of asylum to "anyone persecuted because of his activities in the cause of freedom".
In the United States, asylum law is derived from international agreements that emerged after World War II, particularly the 1951 Convention Relating to the Status of Refugees, drafted by the United Nations. This convention aimed to set an internationally recognized standard for refugee status, defining refugees as those who are 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 United States acceded to the 1967 Protocol, an expansion of the 1951 Convention, in 1968, and incorporated its definitions into domestic law with the Refugee Act of 1980.
Under U.S. law, asylum seekers can apply for asylum in two primary ways: affirmatively and defensively. Affirmative asylum is available to individuals who are not in removal proceedings, while defensive asylum is sought by those already in removal proceedings. Asylees, or individuals granted asylum, are protected from being returned to their home country, can work in the United States, and may access certain government programs and benefits.
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Frequently asked questions
Asylum is not explicitly mentioned in the US Constitution. However, asylum seekers are protected under US immigration law, which was passed in the Refugee Act of 1980.
Asylum seekers can begin their process at the US border or within the US. They must demonstrate that they are unable or unwilling to return to their 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 process can be lengthy and complex, and asylum seekers may have to navigate multiple government agencies.
Individuals granted asylum in the US, known as asylees, are protected from being returned to their home country and are authorized to work. They may apply for a Social Security card, request permission to travel overseas, and petition to bring their family members to the US. Asylees may also be eligible for certain government programs, such as Medicaid, and can apply for lawful permanent resident status (a green card) after one year.
