What Is Asylum? The Right Not to Be Sent Back

The Refugee Convention of 1951, extended worldwide by a protocol in 1967, defines a refugee as a person who is outside their country and unable or unwilling to return because of a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. Every word has been litigated. Well-founded means the fear must be genuine and objectively reasonable rather than certain; persecution is more than discrimination and less than a requirement of death; the five grounds are exhaustive, so that a person fleeing a famine, a war that threatens everyone equally, or poverty is not a refugee under the Convention, though other rules may protect them; and particular social group, the vaguest of the grounds, is where claims based on sexuality, gender and family have been recognised, country by country and case by case.

The Convention's central obligation is not to grant asylum but to refrain from returning: a state may not expel or return a refugee to a territory where their life or freedom would be threatened on those grounds. That principle, non-refoulement, is now regarded as binding on every state whether or not it signed the treaty, and it is why an asylum claim must be assessed before a person can be removed, and why the assessment is a legal process with appeals. It is not unconditional. A person who has committed a serious non-political crime, a war crime or acts contrary to the purposes of the United Nations is excluded, and a refugee who is a danger to the security of the host country may be returned. But it is why a claim made at a border cannot simply be refused at the border.

The process, in outline, is the same in most countries:

• •Registration and a screening interview, and often detention or dispersal to accommodation while the claim is pending
• •A substantive interview in which the applicant tells their account and is questioned on it, usually through an interpreter
• •Assessment against country evidence, the official reports on what is actually happening in the country of origin, which decide whether the fear is well founded
• •A decision granting refugee status, granting a lesser protection such as humanitarian or subsidiary protection, or refusing
• •An appeal to a tribunal and, sometimes, beyond it, where most of the law is made
• •If granted: leave to remain, the right to work, and after some years a route to settlement and citizenship

The central difficulty is proof. An applicant fleeing persecution rarely carries documents, may have been advised to lie by the agent who brought them, may be traumatised in ways that make an account inconsistent, and is asked to establish a fear about the future from events in a country the decision-maker has never seen. Systems respond with the benefit of the doubt in principle and with credibility findings in practice, and the refusal rates that vary from country to country and, within a country, from one decision-maker to the next by factors of several, are the evidence of how uncertain the exercise is. The second difficulty is arrival. The Convention protects a person who reaches a country and says nothing about getting there, and states have responded to increased claims with visa requirements, carrier sanctions that fine airlines for bringing undocumented passengers, offshore processing and agreements with transit countries, all of which are designed to prevent the claim being made without formally refusing it. The dangerous journeys across the Mediterranean and the Channel are the direct result.

Around 120 million people were displaced by force in the mid-2020s, of whom about a third had crossed a border, and the large majority are hosted by countries neighbouring the conflicts they fled, Turkey, Iran, Colombia, Germany, Pakistan and Uganda among the largest; the rich countries that argue loudest about asylum receive a small fraction. The politics is the same everywhere: an obligation that a state has accepted, a public that experiences arrivals as a loss of control, and a legal system that decides cases one at a time while the argument is conducted in millions. The Convention's defenders point out that it was written by states that had just seen what happens when there is no such rule, and that it binds them precisely because they will always be tempted; its critics say it was written for a Europe of displaced persons and fits badly a world of mass movement. Both are describing the same document.

Asylum is the protection a state owes to a person outside their own country who has a well-founded fear of persecution on grounds of race, religion, nationality, political opinion or membership of a particular social group, under the 1951 Refugee Convention, whose central rule, non-refoulement, forbids returning them to face that danger and therefore requires the claim to be assessed. Decisions turn on credibility and country evidence and vary widely, and states that cannot refuse claims at the border have instead built barriers to reaching it.