Asylum Seekers: A Constitutional Right?

The right to seek asylum is a complex and contentious issue, with international laws and conventions, as well as individual country policies, governing the process. Asylum seekers often face dangerous journeys and bureaucratic challenges as they navigate the difficult path to safety. While the right to seek asylum is protected under international law, countries have their own policies and procedures for granting asylum, which can vary widely. For example, France was the first country to establish a constitutional right to asylum in 1793, while China's constitution allows the country to grant asylum to foreigners for political reasons. In the United States, asylum seekers can apply affirmatively or defensively, but they face a complex process involving multiple government agencies and potential discrimination.

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Seeking asylum at the US border

The right to asylum, or political asylum, is a juridical concept that has been recognized since ancient times. In the US, the right to asylum is part of the constitution, with 8 U.S. Code § 1158 outlining the process for seeking asylum. This states that any individual physically present in the US or at the border must be given the opportunity to apply for asylum, regardless of their immigration status or whether they entered through a designated port of arrival.

There are two types of asylum an applicant can request: affirmative asylum and defensive asylum. Affirmative asylum is for those who have not been placed in removal proceedings and must, in most cases, be filed within a year of arriving in the US. Defensive asylum, on the other hand, is for those who are seeking to request a defense against removal or deportation from the US. The burden of proof lies with the applicant, who must establish that their race, religion, nationality, membership in a particular social group, or political opinion was or will be a central reason for their persecution.

The process of seeking asylum at the US border has been subject to criticism and concerns. Since 2017, the US government has restricted access to asylum, with policies such as the Migrant Protection Protocols (MPP) or "Remain in Mexico," which forced asylum seekers to wait in Mexico. During the COVID-19 pandemic, the Trump administration implemented Title 42, a public health rule that allowed border agents to turn away asylum seekers without hearing their cases. This policy was in place from March 2020 to May 2023 and resulted in nearly 3 million expulsions.

The Biden administration's 'asylum ban' has also been criticized for barring asylum seekers who passed through another country on their way to the southern US border, unless they had previously applied for asylum and been denied. This has been described as a lottery system that leaves the protection of vulnerable people to chance. Furthermore, issues such as inefficiencies in the employment authorization process and border agents sending immigrants to the wrong addresses have also been highlighted.

Despite these concerns, there have been efforts to improve the system. The end of Title 42 led to the reinstatement of Credible Fear Interviews (CFIs) by the USCIS, and there is bipartisan support for legislation that would enable asylum seekers to apply for work authorization more efficiently.

Asylum seekers' rights

The right to asylum is a complex and evolving area of law, with international treaties, regional agreements, and national legislation all playing a role in shaping asylum seekers' rights. While the right to asylum is not explicitly mentioned in most national constitutions, it is protected by various international and regional instruments, such as the 1951 Geneva Convention and the United Nations (UN) Convention Relating to the Status of Refugees.

In the European Union (EU), the right to asylum is guaranteed by Article 18 of the EU Charter of Fundamental Rights, which is in line with the 1951 Geneva Convention and the 1967 Protocol relating to the status of refugees. EU countries have an international obligation to grant protection to eligible people, and the EU has also broadened the concept of protection by offering subsidiary protection to those who do not qualify for refugee status but are still at serious risk. This subsidiary protection ensures that people are not returned to a country where they face death, torture, or inhumane treatment.

In the United States, asylum seekers have the right to legally cross the border and request asylum at a port of entry. They can apply for asylum affirmatively through the U.S. Citizenship and Immigration Services (USCIS) or defensively through an immigration court. If granted asylum, individuals are protected from being returned to their home country, can work, and may apply for additional benefits such as a Social Security card and government assistance programs. However, it is important to note that the US government has recently restricted access to asylum at the border.

France was the first country to establish a constitutional right to asylum in Article 120 of the Constitution of 1793, and it continues to uphold this right through its modern constitution and various international agreements. Other countries, like China, also have constitutional provisions for granting asylum to foreigners for political reasons.

Regardless of the region, asylum seekers have certain fundamental rights that should be respected. These include access to housing, food, healthcare, and education, as well as protection from discrimination and violence. However, the specific rights and procedures vary depending on the country and the individual's circumstances.

The asylum application process

There are two primary ways in which a person may apply for asylum: affirmatively and defensively. Affirmative asylum is for those who are not in removal proceedings. To apply, individuals should file Form I-589, Application for Asylum and Withholding of Removal, with the United States Citizenship and Immigration Services (USCIS) within one year of their last arrival in the US. If the USCIS asylum officer does not grant the asylum application, the applicant is referred to an immigration court for removal proceedings, where they may renew their request for asylum through the defensive process and appear before an immigration judge.

Defensive asylum is for those who are in removal proceedings. In this case, the applicant is asking the government to reverse its decision to deport them and allow them to remain in the US via asylum. The defensive process works within immigration courts, where the judge will hear from the asylum seeker and their attorney (if they have one) and the US government. If the judge deems the applicant ineligible for asylum, they can determine whether the individual meets the criteria for any other forms of relief from removal.

A third pathway, known as the Asylum Processing Rule, was created in 2022 for individuals arriving from the border. This pathway includes elements of both affirmative and defensive asylum processes and operates on an expedited timeline.

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Asylum seekers' treatment in Mexico

The treatment of asylum seekers in Mexico is a complex issue that has been influenced by various factors, including the country's asylum system, domestic policies, and its role in regional migration dynamics.

Mexico has experienced a significant increase in asylum claims in recent years, with the number of applications in 2021 being over 100 times higher than in 2013. This surge has overwhelmed the country's asylum system, leading to backlogged legal processes and extended wait times for applicants. Asylum seekers in Mexico often face steep obstacles, arbitrary treatment, and abuses during their journey and when interacting with Mexican authorities. Language barriers, racism, and discrimination further exacerbate the challenges faced by asylum seekers, particularly for Black individuals.

The "Remain in Mexico" policy, also known as the Migrant Protection Protocols (MPP), implemented by the Trump Administration, has had a significant impact on the situation. This policy requires asylum seekers fleeing violence and persecution in their home countries to wait in Mexico while their cases are processed in the U.S. While the policy aimed to uphold the rule of law and protect vulnerable populations, it has instead contributed to a humanitarian crisis at the border. Tens of thousands of asylum seekers have been stranded in dangerous cities, facing homelessness, a lack of access to basic services, and heightened risks of extortion, kidnapping, and sexual abuse.

Mexico's southern border, specifically the city of Tapachula, has become a critical focal point in the asylum-seeking process. Protection-seeking migrants often face difficulties in requesting asylum at Mexico's ports of entry, and those who succeed are often contained within Tapachula due to administrative rules. The high concentration of asylum seekers in this city has led to a lack of affordable housing, discrimination, and arbitrary detention.

The treatment of asylum seekers in Mexico highlights the challenges faced by countries in the region that are grappling with increasing migration flows. While Mexico's asylum system aims to provide protection, the combination of rising caseloads and limited resources has resulted in prolonged case processing times and difficult living conditions for those seeking refuge.

The right of asylum in China

The right to asylum is a form of protection for individuals who can demonstrate that they are unable or unwilling to return to their country of origin due to a well-founded fear of persecution based on race, religion, nationality, social group, or political opinion. This right was incorporated into international law following World War II. While the right to asylum is recognised internationally, the process and implementation vary across countries.

In the context of China, the right to asylum is addressed in Article 32 of the Constitution of the People's Republic of China. This article stipulates that China may grant asylum to foreigners who request it for political reasons. However, it is important to note that the domestic law on refugees and asylum in China is still under development, and there is a lack of comprehensive legislation specifically addressing this issue.

Historically, China has granted asylum to foreign pro-communist political leaders. Hoàng Văn Hoan, the Vice Chairman of the National Assembly of Vietnam, was the last foreigner to be granted political asylum by China in 1979. Since then, no foreigner has been granted political asylum by China as of the present.

While China does not have a comprehensive refugee law, there are some legal provisions that offer protection to refugees and asylum seekers. Article 46 of the Exit and Entry Law recognises the right of refugees and asylum seekers to obtain ID cards. This provision is seen as a positive step towards enhancing the rights of refugees in China, including the right to work and education. Additionally, refugees and asylum seekers registered with the United Nations High Commissioner for Refugees (UNHCR) in China are permitted to stay in the country. The UNHCR provides support in terms of food, accommodation, healthcare, and children's education.

However, it is important to note that China's human rights record has been criticised by international bodies, non-governmental organisations, and dissidents. There have been concerns about the political abuse of psychiatry, with human rights activists targeted and placed in mental asylums. Additionally, Ankang hospitals have been scrutinised for their inhumane treatment of patients, including forced labour and torture. As such, while China recognises the right to asylum in its Constitution, the practical implementation and protection of asylum seekers' rights remain a concern.

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