The world’s asylum system is in crisis. Over the last fifteen years, unprecedented numbers of people have sought asylum in Western Europe and North America. As the number of asylum seekers has surged, a public backlash against them has intensified, especially in Europe. Increasingly, asylum seekers are seen as opportunists ready to exploit the relatively generous social welfare systems of industrialized states, and as cultural threats whose presence in large numbers may undermine the liberal and secular values of their host countries. The problem has been especially acute in Britain: more than 100,000 people sought asylum there in 2002, up twenty percent from the year before, leading to regular accusations in the tabloids that the government had lost control of its borders. Although the number of new applicants in Britain declined sharply in 2003 and continued to fall through 2005 due to a combination of changed international conditions and draconian measures taken by the British government, asylum seekers continue to be assailed as “economic migrants” who intend to leech off of Britain’s welfare state.
In the United States, and increasingly in Europe as well, the war on terror has also generated suspicion of asylum seekers. Some commentators have expressed concern that the asylum system is a back door through which al-Qaeda operatives may attempt to enter the West. Indeed, one of the 1993 World Trade Center bombers entered the United States as an asylum seeker. Law enforcement authorities also express concern that asylum seekers have become a lucrative source of income for transnational human smuggling and trafficking gangs, which themselves may have ties to terrorists.
Faced with historically high numbers of asylum seekers, as well as increasing domestic pressure to curb asylum, states are erecting barriers to entry; introducing onerous procedural requirements to reduce the number of people eligible for asylum; reducing public benefits available to asylum seekers pending the decision on their applications; detaining asylum seekers pending determination of their status, often in facilities housing common criminals; and expediting the determination process at the cost of giving asylum seekers less time to prepare for their hearings and gather evidence in support of their claims. Even the United Nations High Commissioner for Refugees (“UNHCR”), by emphasizing refugees’ “right to remain” in their countries of origin, has aided in diminishing asylum’s importance. Although these methods, together with regime change in Afghanistan and Iraq (two major source countries in the 1990s), have led to a decline in the total number of new applications filed in the West, asylum nonetheless remains a volatile political issue.
At the same time, however, courts have steadily adopted increasingly generous interpretations of the substantive eligibility requirements for asylum, which limit asylum to those who have a “well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.” Courts have recognized for the first time claims made by people fleeing ethnic conflicts, battered women, and victims of female genital mutilation, among others. In part, this widening of the substantive grounds for asylum has been achieved by linking the eligibility requirements for asylum to international human rights law. As Deborah Anker argues, “nternational refugee law is coming of age . . . . Over the past decade especially, refugee law has been claiming its international human rights roots and evolving across national borders. As refugee law matures, judicial bodies, including states’ highest courts, are reviewing more refugee cases.” Commonwealth courts in particular have interpreted “persecution” as “the sustained or systemic violation of human rights demonstrative of a failure of state protection.” This interpretation has significantly aided claimants who have been victimized by nonstate actors. Many advocates and academics have urged a further widening of eligibility requirements, to include not only victims of persecution, but other victims of violence as well. They have claimed that limiting asylum to the persecuted draws a morally arbitrary distinction among people who are similarly situated with respect to their need for protection from violence.
The result has been a tug-of-war between the courts and advocacy groups, who push for further substantive liberalization, and elected officials, who have responded to a disgruntled public by making it more difficult for applicants to have their claims judged on their merits. As a practical matter, asylum is a “scarce resource,” politically speaking. Western publics support asylum as a way to help people who truly need assistance, but only if they feel that control over the borders more generally is being maintained. An influx of asylum seekers invites a backlash because it raises doubts about the effectiveness of border control, unless there is evidence that the sudden spike in demand can be attributed to “a real outbreak of implacable persecution.” If the public perceives that the asylum system is being used as a loophole by “ordinary” immigrants, and that “resettlement rights are not being reserved only for those who show the kind of special threat that clearly justifies an exception from the usual rigours of the immigration law,” popular support for asylum will quickly erode. Professor David Martin has expressed concern that public backlash against asylum abusers can even undermine support for foreign aid programs more generally.
Given the current state of affairs, a reassessment and articulation of asylum’s theoretical underpinnings is especially important. What group of people is asylum meant to assist? What purpose does it serve, and what criteria should determine eligibility for it?
These questions of underlying theory are brought into stark relief by the prevailing framework governing asylum law. Almost every state has followed the 1951 U.N. Convention Relating to the Status of Refugees (“Convention”) in embracing what I shall call the “persecution criterion”—the requirement that a recipient of asylum have “a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Those who fail to qualify for asylum, but who nonetheless can make a strong case that they ought not be returned to their respective state of origin, are sometimes eligible for a form of “temporary protection,” a status that typically grants fewer rights and benefits than asylum does, and, unlike asylum, often offers no opportunity for permanent settlement. In the United States, for example, the Attorney General is authorized to make temporary protection available for those aliens whose return to their home countries would “pose a serious threat to their personal safety” because of an “ongoing armed conflict within the state,” or who would experience a “substantial but temporary disruption of living conditions” by an “earthquake, flood, drought, epidemic, or other environmental disaster.” Recipients of temporary protection have no opportunity to adjust their status to permanent residence, regardless of how long they stay.
The result is a two-tiered system of refugee protection. Those who satisfy the persecution criterion receive a potentially permanent place of refuge and relatively generous benefits as a matter of de facto individual right. Others fleeing life-threatening situations are eligible for a temporary place of refuge and relatively less generous benefits as a matter of charity.
Scholars have engaged in little sustained reflection as to asylum’s normative underpinnings. Why might the persecution criterion have normative appeal? The absence of such a discussion is troubling; lives ride on the matter. Among those who have been excluded from asylum by the persecution criterion are people caught in the crossfire of civil war or generalized violence, starving people, people without the economic resources to subsist, people forced to flee their countries due to environmental catastrophe, people forcibly recruited by a rebel militia, and battered women unable to obtain protection from the police. States should be able to justify their reliance on the persecution criterion when they use it to deny asylum to such people. The persecution criterion has been subject to scathing criticism from scholars and activists. These critics argue that those forced to flee their homelands because they lack protection from generalized violence or severe economic hardship have as strong a moral claim to asylum as people targeted for violence by their state. That is, there is no moral justification for excluding the former and limiting asylum to the latter. I call this view the “humanitarian conception of asylum.” On this view, the Convention refugee definition should be widened to include not only persecuted people, but also those who need protection from serious harm more generally, regardless of the source of the harm. Part I of this Article begins by laying out the humanitarian conception and its critique of the current legal framework for asylum.
The goal of this Article is to articulate and defend a normative theory of asylum that can account for the persecution criterion. In Part II, I offer such a theory of asylum’s purpose and function, which I call the “political conception of asylum.” On this view, asylum’s purpose is to shelter those who are wrongfully harmed by agents acting under the color of state authority and to call the persecuting state to task by expressing condemnation. The political conception does not focus on the mere fact of an asylum seeker’s need for protection; instead, it focuses on the legitimacy of, and the state’s culpability in, the asylum seeker’s exposure to harm. This theory explains why asylum should be narrowly focused on assisting persecuted people, rather than broadly aimed at protecting people from insecurity generally.
Part III offers a normative defense of the political conception. I begin by calling attention to the variety of ways that states can assist refugees. These include not only asylum, but also in situ aid, temporary protection, overseas refugee resettlement programs, and military intervention. Asylum is thus just one tool of many in the refugee policy toolkit, distinguished from the others in that it provides its recipients with a political good: membership in the state of refuge, and not merely protection of recipients’ basic rights. A defensible conception of asylum should account for the distinction between a need for membership and a need for protection. I argue that this distinction is preserved by the political conception, but not by the humanitarian conception. However, my argument should not be read as an apologetic for the move toward restriction among many policymakers today. In many respects, I contend, current policy needs to be substantially liberalized.
Part IV examines the implications of the political conception for asylum law and policy. In particular, I consider the consequences for the interpretation of “persecution.” Over the last decade, refugee advocates have argued that “persecution” should be understood to consist in the “sustained or systemic violation of basic human rights demonstrative of a failure of state protection.” Courts in Canada, the United Kingdom, New Zealand, and Australia have embraced this “human rights approach,” and it is beginning to gain traction in the United States as well. The political conception, however, calls into question the normative defensibility of this interpretation. Like the humanitarian conception, the human rights approach views a person’s need for protection as giving rise to a claim for asylum. It fails to recognize the distinction between a need for protection and a need for membership. The implications of this disagreement between the human rights approach and the political conception are brought into sharp focus when one considers how the law should treat persecution by nonstate actors. Finally, I consider the implications of the political conception for rights of integration. I then conclude in Part V.
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