An assault on asylum? Experts raise alarm

Montreal, Canada – Last May, the United Nations unveiled a “sobering” milestone that it said “should never have been set”: For the first time in recorded history, more than 100 million people around the globe had been forced to flee their homes due to conflict, violence and persecution.

Today, as the world grapples with the effects of this displacement, experts have cautioned that an equally alarming trend is also picking up pace: the “erosion” of the right to seek asylum in other countries.

“The doors are closing, and the language is coarsening. Hearts are hardening, walls are being built,” Allan Rock, a member of the World Refugee & Migration Council and former Canadian ambassador to the UN, told Al Jazeera.

“Everywhere you look, there is a weakening and often a disappearance of the right to claim asylum.”

Global asylum system

That right is anchored in the 1951 Refugee Convention, which came about in the aftermath of World War II as millions of European refugees were displaced and in search of protection.

The convention – and a later amendment known as the 1967 Protocol – set out who could be defined as refugees under international law and what their rights are. This includes a key principle known as non-refoulement, which bars countries from sending people back to territories where they fear harm.

“Asylum is a protection,” explained Jaya Ramji-Nogales, a law professor at Temple University in the United States. “It’s really about our moral obligation to other humans who are in need of protection because they are facing harm.”

One hundred and forty-nine countries have ratified the Refugee Convention or the Protocol, or both, and many have also enshrined the right to seek asylum in their own national laws.

But access to asylum has been “eroding significantly” since at least the 1990s “and precipitously so of late”, said Alison Mountz, a geography professor at Canada’s Wilfrid Laurier University and its research chair in global migration.

That is largely because countries that signed the 1951 convention “are using geography creatively to prevent people from accessing” their territories to put in asylum claims, Mountz told Al Jazeera – a phenomenon she called “border externalisation”.

“They’re effectively reaching more deeply into the journeys that people are making on their way to make an asylum claim, to stop them along the way before they’ve reached sovereign territory where they accrue that right to seek asylum,” Mountz said.

Indeed, contrary to refugee resettlement – an often timely process in which refugees are vetted by the UN before being matched to countries that take them in – an asylum claim can be placed only once a refugee is in another nation’s territory.

“Asylum is different because it does involve more chaos and uncertainty because people are moving,” Mountz said. “That taps into this fear about who’s coming, and it exposes the desire of government and policy to select people, but unfortunately that’s not how it works.”

Extending borders

“Border externalisation” takes many forms today, from pushbacks of refugees seeking to reach Europe via the Mediterranean Sea, to bilateral agreements that discharge countries’ duties to assess asylum claims or effectively seal their shared frontiers.

Recently, the British government came under fire for reaching a “memorandum of understanding” with Rwanda to allow it to send asylum seekers to the African nation to have their claims heard there – more than 7,000km (4,350 miles) away.

European countries also have spent tens of millions of dollars to train the Libyan coastguard in a push to stem the flow of asylum seekers using Libya as a jumping-off point to try to reach Europe by sea. Tens of thousands have died making such crossings in recent years.

In North America, Canada last month extended a deal with the US that effectively allows it to shut the door on most asylum seekers who cross the US-Canada land border and send them back to the United States, even if they have reached Canadian territory.

US President Joe Biden’s administration also has proposed a policy that rights groups have dubbed an “asylum ban”; the plan would block asylum seekers who arrive at the US-Mexico border from accessing protection in the US if they didn’t first apply for asylum in Mexico or another country they crossed earlier in their journeys.

“The policies at the [US-Mexico] border are so restrictive that we’re seeing a record number of people amass because they’re being prevented from crossing,” said Javier Hidalgo, director of pre-removal services at RAICES, an organisation in Texas that supports asylum seekers and migrants.

“We’re not as a country diverting the resources to creating a system to meet the need for the processing that needs to happen,” he told Al Jazeera. “[We’re] diverting resources to being preventative.”

The deadly consequences of US immigration policies are often “erased from the public view”, said Hidalgo, who pointed to recent figures that showed more than 850 people died in the 2022 fiscal year trying to cross along the US-Mexico border.

The recent deaths of dozens of mostly Guatemalan migrants in a detention centre fire in Ciudad Juarez, across the border from El Paso, Texas, also put a spotlight back on the dangers asylum seekers face when forced to wait in Mexico in hopes of having their claims heard in the US.

“It’s an increasing level of desperation,” Hidalgo said. “There’s a huge amount of preying upon this population that’s waiting to get across. We have created a market for kidnapping by the cartels and corruption by the officials on the other side of the border.

“And then we blame the victims – and it’s an ugly cycle there.”

Criminalising asylum

Dehumanising rhetoric around migration also contributes to that “ugly cycle”, the experts said, as governments that enact restrictions on the right to asylum also employ language that seeks to obfuscate their own obligations under international law.

In some cases, this has been overt, such as when former US President Donald Trump and other Republican legislators use the term “illegals” to refer to people crossing into the country to seek protection, or warn of an “invasion”.

It can also be more subtle, such as the phrase “legal migration”, which implies that seeking asylum by crossing a border irregularly is “illegal”.

“Those who appear at our border asking for asylum … are not jumping a queue, they’re not gaming the system, and they’re not asking for charity,” said Rock, with the World Refugee & Migration Council. “They’re exerting a right – a right that’s recognised morally and legally, and has been for millennia.”

The 1951 Refugee Convention also addresses the falsehood that crossing a border to seek asylum is “illegal”, stating that refugees should not be punished for “illegal entry” because “the seeking of asylum can require refugees to breach immigration rules”.

According to Mountz at Wilfrid Laurier University, the rhetoric around migration “falls into broader narratives and tropes about immigration and fear of people crossing the border without authorisation”.

“But it’s important to note that there really isn’t a visa that you can get to make a claim for asylum,” she said. “So unfortunately, people who are seeking asylum are often associated with criminal activity because they’re forced to make an irregular crossing essentially in order to get somewhere to make a claim.”

‘Life and death’

Yet as wealthy countries build more walls and find new and innovative ways to make asylum out of reach, Ramji-Nogales said another path is possible: one where nations devote the resources needed to accommodate people fleeing harm.

“Europe’s response in particular to Ukrainians has shown that these destination countries are wealthy countries with a lot of resources and actually, it could work,” she said, referring to how Ukrainian refugees fleeing Russia’s invasion were able to seek safety in neighbouring countries, as well as in the US, Canada and further afield.

“Instead of spending all this money building a wall at the border, we could be spending money on integration and training and enabling people to come and lead a productive life.”

That was echoed by Rock, who said the world is at a critical juncture.

“What is more basic as an element of our common humanity than our obligation to respect the right of other people to live? We shouldn’t lose sight of that fundamental principle in all of this,” he said.

“Now that principle has been eroded, it’s been ignored, it’s been undervalued – and it has to be revived. And people have to understand that for many, many of those who are seeking asylum, it is a matter of life and death.”