Asylum Policies

by

Nazli Avdan

• LAST REVIEWED: 26 May 2016
• LAST MODIFIED: 26 May 2016
• DOI: 10.1093/obo/9780199743292-0175

Introduction

Asylum refers to the institution of protection granted to political migrants by host states. Asylum is granted to individuals fleeing persecution or serious harm in their country of origin and therefore needing international recognition. The merit of asylum applications lodged in signatory states to the 1951 Convention must be considered under the stipulations of the Convention. All developed countries and most others are signatories to the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. The Convention established the post–Second World War refugee regime, designed to cope with involuntary migration within postwar Europe. Article 1 of the Convention defines a refugee as someone outside their country of normal residence and who is unable or unwilling to return to it due to a well-founded fear of persecution. Two core tenets are integral to enshrining the humanitarian aspirations of the Geneva regime. First, Article 33 codifies the non-refoulement clause and stipulates that a person cannot be forcibly returned to a territory where they may be at risk of persecution. Second, Article 3 defines the principle of non-discrimination as a prohibition against asylum outcomes biased against refugee groups of a particular race, ethnicity, or religion. Article 33 (2) of the Convention recognizes that refugees may be without a country of asylum and does not impose a requirement that refugees be granted asylum. Nonetheless, it is customary within the industrialized world to confer asylum upon individuals recognized as refugees under the Convention. Alternatively, individuals may be granted asylum by recipient countries without Convention refugee status. Accordingly, the United Nations High Commissioner for Refugees reports a full refugee status and combined recognition rate; the latter refers to allowance to remain for humanitarian reasons short of full refugee recognition. Asylum seekers are individuals who claim to be refugees but whose claims have not yet been decided. They can lodge their claims at destination territories or at an embassy or consulate abroad, provided that the destination state allows for the latter. Refugees on the other hand, are defined by the 1951 United Nations (UN) Refugee Convention an under the United Nations High Commissioner for Refugees (UNHCR) statute. The recognition of an individual as a refugee is thus of a declaratory nature. Individuals may be granted refugee status by the UNHCR while abroad, often in refugee camps, and may qualify for resettlement under the domestic law and policy of recipient states. Importantly, however, only a small subset of refugees are granted asylum through resettlement programs. United Nations High Commissioner for Refugees 2014 (cited under Trends in Political Migration: Current Trends) estimates, for example, that in 2014 less than 1 percent of global refugees (or slightly over 100,000 cases) were referred for resettlement. In brief, the distinction between refugee and asylum seeker hinges on whether their claim is recognized and whether the refugee intends to apply for asylum.

General Overviews

Studies on asylum policy remain region specific, with the clearest demarcation drawn between polices in the United States context and policies of European Union member states. Hence, it is not possible to speak of an overarching body of work that outlines asylum policies. Loescher 2005 traces the evolution of asylum policies in the West and explores the political, demographic, and economic crises that have paved the way to asylum-refugee problems. Borjas and Crisp 2005 traces the evolution of the asylum regime and focuses on the nexus between poverty, economic migration, and asylum. Loescher and Milner 2005 engages the nexus between security and protracted refugee situations by discussing the transnational security implications of refugee camps at borders and forceful repatriation. Van Hear 2014 examines refugees and asylum seekers as a consequence of conflict. International Organization for Migration 2012 traces changes in asylum procedures for intergovernmental consultations participating states and covers statistical data and regional and international law on asylum determination. Goodwin-Gill and McAda 2007 analyzes the foundations and the framework of international refugee law by demarcating between the definition of refugees and asylum seekers, and further, cover standards of protection. As a non-English source, Odman 2006 provides an overview of jurisprudence concerning political migration.

• Borjas, George J., and Jeff Crisp, eds. Poverty, International Migration, and Asylum. New York: Palgrave Macmillan, 2005.

  This is an edited volume that contains a selection of essays by migration scholars examining the nexus between migration and asylum. The volume brings attention to the global dynamics of migration, the consequences of immigration and asylum, and includes case studies of asylum and immigration.

• Goodwin-Gill, G. S., and J. McAda. The Refugee in International Law. Oxford: Oxford University Press, 2007.

  The third and most recent edition of this book is a leading text on international refugee law. It also discusses the legal basis of the definition of a refugee, the institution of asylum, and the principles guiding asylum determination.

• International Organization for Migration. Report on Asylum Procedures in IGC Participating States. Washington, DC: IOM, 2012.

  The IOM report is published every three years and comprises country reports on asylum policy and determination procedures for seventeen ICG participating countries: Australia, Belgium, Canada, Denmark, Finland, Germany, Greece, Ireland, Netherlands, New Zealand, Norway, Spain, Sweden, Switzerland, UK, and United States.

• Koslowski, Ray. Possible Steps Towards an International Regime for Mobility or Security. Global Migration Perspectives 8. Geneva: Switzerland: Global Commission on International Migration, 2004.

  The paper utilizes regime theory to draw out the incentive structures for establishing an international migration regime. Discusses harmonization efforts on asylum policy and border control within the European Union’s Justice and Home Affairs (JHA) framework as an example of a regional regime.

• Loescher, Gil. Refugees and the Asylum Dilemma in the West (Issues in Policy History). State College: Pennsylvania State University Press, 2005.

  This is an edited volume on the asylum crisis in the West. The series of articles documents the historical background and contemporary significance of asylum and refugee issues.

• Loescher, G., and J. Milner. Protracted Refugee Situations: Domestic and International Security Implications. New York: Routledge, 2005.

  Discusses the long-term security implications of protracted refugee situations. Although published a decade ago, the theoretical arguments are relevant for understanding the negative externalities of forceful repatriation and the installment of poorly managed refugee camps at borders.

• Odman, M. T. “Mülteci Hukuku ve Türk Mülteci Politikası.” Güncel Hukuk Dergisi 26 (2006).

  The article appears in Turkish in a law journal and offers an account of refugee law and its application to Turkey’s refugee policies.

• Van Hear, N. “Refugees, Diasporas and Transnationalism.” In The Oxford Handbook of Refugee and Forced Migration Studies. Edited by E. Fiddian-Qasmiyeh, G. Loescher, K. Long, et al, 176–187. Oxford: Oxford University Press, 2014.

  This chapter examines the connection between asylum seekers, refugees, and diaspora communities. Transnationalism is posited as a solution to displacement in conflict-ridden zones.