The meaning of the term ‘asylum’, in the context of immigration, is the protection offered by a country or state to a refugee who has left their home country, or feels that they cannot safely return to their home country, because of persecution they have suffered or may suffer on the grounds of race, religion or some other factor.
The right of asylum
Although the right of asylum has been in existence for many centuries, it was officially written into international law in Article 14(1) of the 1948 Universal Declaration on Human Rights, and later clarified at the 1951 Refugee Convention and in the 1967 Protocol Relating to the Status of Refugees.
Under the modern right of asylum, any person facing persecution in their home country may seek asylum, that is protection, in another country or state.
Asylum may be sought when persecution happens, or may happen, for any of the following reasons:
- Political opinion
- Membership and participation in certain social groups or activities
- Sexual persecution and violence, for instance, female genital mutilation
- Civil war
- Ethnic cleansing
- Tribal violence
- Sexual or gender orientation
The last five issues mentioned above are not always seen as acceptable reasons for the granting of asylum but the UN Refugee Agency (UNHCR) has urged that these reasons be considered.
How does asylum work?
When an asylum seeker applies to a country for protection from persecution in their home country, they must prove both their identity and their eligibility for refugee status by providing supporting documents, such as passport and birth certificate, and attending an initial screening and further interview with immigration and government officers.
Where the asylum seeker is already resident in the country where they are seeking protection from persecution, for instance, an Iranian national living in the UK who wishes to seek asylum there, it will be necessary to prove residency in the asylum country by providing evidence such as bank statements or household bills.
Successful applicants will be granted the status of refugee and the right to safe asylum. International law states that refugees should have the same rights and assistance offered to any foreigner who is a legal resident. These rights include:
- fair treatment
- freedom of thought, opinion and expression
- freedom of movement
- freedom from torture or other degrading actions
- freedom to practice their religion
- freedom from discrimination
- economic and social rights
- medical care
In return, a refugee is expected to respect and uphold the laws of the country which has granted asylum to them.
What happens when a large number of asylum seekers apply to a country for protection?
In the case where a large group of asylum seekers ask for protection from persecution, such as those escaping a civil war, for instance, processing applications individually may prove difficult. Where a group of asylum seekers are fleeing persecution for the same reason, it may be possible to make a group decision regarding refugee status. The fact that the group have all arrived en masse in the same time period and for the same reason could be taken as evidence of their case for seeking asylum.
Alternatively, temporary protection may be granted to avoid the asylum application process being overwhelmed. In this situation, asylum seekers may be granted access to a safe country without any assurance that they will be offered ongoing asylum.
What affects a country’s asylum policies and rules?
Despite the rights of any individual facing persecution in their home country to seek asylum in a safe country, the approach to how asylum seekers are dealt with differs from country to country. In addition to this, countries may also differ on how they define the criteria for granting asylum.
For instance, in certain countries asylum seekers may be accommodated in detention centres, whereas in other countries they may be provided with more domestic accommodation, such as a hostel.
Tribal violence may not be seen as a fit reason for a person to claim persecution in their home country by certain governments, while others would find it a match for the asylum criteria.
So what is the reason for these variances?
Although the laws regarding asylum are set out in Article 14(1) of the 1948 Universal Declaration on Human Rights and the 1967 Protocol Relating to the Status of Refugees, each country creates its own corresponding legislation. This legislation must be in accordance with the existing international asylum laws but will also place that country’s personal definition of those laws in its own legislation. This ‘personal definition’ may lead to some of the variances seen between countries, for instance, in countries where homosexuality is outlawed or frowned upon, persecution on these grounds may not be seen as a reason for granting asylum.
In addition to this, where a country is a member of a group of countries or states, such as the EU (European Union), it may be necessary to adhere to group legislation.
What is the difference between an asylum seeker and a migrant?
Generally, a migrant leaves their home country to begin a new life in another country, possibly for employment reasons, education or to begin a new marriage. A migrant’s chance of being granted the right to live in a country is based on the legal immigration process of that country.
By comparison, an asylum seeker flees their home country to escape persecution. They have a right to seek asylum in accordance with international asylum law.
What is the difference between an asylum seeker and a refugee?
An asylum seeker is a person who has applied for asylum. A refugee is a person who has been granted asylum.
What is the country of first entry and the country of first asylum?
The country of first entry is a term used by the EU (European Union) to stipulate the first EU country that an asylum seeker reaches. It is not necessarily the first country that an asylum seeker applies to for asylum.
The country of first asylum is the first country than an asylum seeker applies to for asylum, although not necessarily the first country where they are granted asylum.
Although asylum seekers entering the EU have no obligation to apply for asylum in their country of first entry, the Dublin Regulation may be used to decide which EU state has responsibility for an asylum seeker, dependent on country of first entry and any protection the asylum seeker has received whilst in any EU country.
How does the Human Rights Act 1998 affect asylum seekers?
The Human Rights Act 1998 offers further protection to asylum seekers. When considering an application for asylum, and even where asylum has been refused, the applicant may not be returned to their home country if it would contravene their rights as laid out in the Human Rights Act and where they would face persecution and discrimination.
Can a convicted criminal seek asylum to avoid imprisonment?
Where a person, either convicted or simply accused of crimes, may face persecution in their home country, it may be possible for them to apply for asylum.
The case will be considered on an individual basis to decide whether persecution in accordance with international asylum law is present or likely or whether the applicant is simply using the process of asylum to escape punishment for their crimes.
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.