The right to asylum: Why Europe has to take in people fleeing persecution

The European refugee crisis keeps getting worse. Instead of coming together to figure out a permanent policy to handle refugees, EU countries are currently trying to ship refugees back and forth to each other en masse: Germany has closed its border with Austria off and on, Slovenia is sending trainloads of people back to Croatia, Croatia is bussing them to the border with Hungary, and Hungary has built a wall to keep them out.

The problem for Europe is that it doesn't have a reliable system in place to do what it has to do under international law: offer asylum to refugees fleeing persecution. Most of the people coming into Europe are seeking asylum, whether they come from war-torn countries like Syria or not. And while no European country is necessarily violating international law right now, the continent, as a whole, is coming dangerously close to falling down on its legal obligation.

When the refugee crisis gets treated as a political issue, the subtext often is: "It's Europe's problem that people are coming, but it's not Europe's fault that they are fleeing their home countries, so Europe needs to decide whether or not to let them in." But according to international and national laws, that's wrong. The entire refugee and asylum system is based on the obligation that one country has to take in victims of persecution from another.

Here are the clear standards international law sets for countries to take in asylum-seekers — and how the European Union made those standards a lot blurrier.

Countries are legally obligated to consider asylum claims

It may not be the fault of one country that a terrible crisis is happening in another country. But countries are obligated to take in people fleeing persecution regardless of whether that country had anything to do with it. This is a basic principle of international law, which has been on the books for over 60 years.

Jewish would-be refugees aboard the St. Louis, which wasn't allowed to dock in the US or Cuba. (Universal History Archive/Getty)

According to law professor Karen Musalo of the University of California Hastings, the current system was created in response to the Holocaust — which showed what could happen when countries didn't take in people fleeing persecution. During the 1930s, as Nazi Germany tightened its persecution of Jews, many attempted to flee for other countries but were turned away. One ship, the St. Louis, was literally turned back at port from both Cuba and the US. After World War II, countries realized just what had happened to the Jews they'd refused — 6 million of them had been killed.

The Universal Declaration of Human Rights guarantees a "right to seek and enjoy asylum," which is generally interpreted to mean that someone has the right to apply for protection. (The international refugee system was fleshed out by the 1951 Convention on the Status of Refugees.)

From the perspective of the country where someone is seeking asylum, their obligation is a negative one: not to violate the human rights of the refugee. So a country is prohibited under international law from sending an asylum-seeker back to anywhere he or she might be persecuted (something called refoulement).

That's reinforced by lots of national laws and regional agreements, which lay out procedures for how someone can apply for protection and what the standards are, but none of them challenge the basic right to apply.

People seeking refugee or asylum status have to show they've been persecuted

To get either refugee status or asylum, according to the official definition laid out by the UN (which is what the US follows in its own immigration law), an individual has to prove two things:

1. He or she has a well-founded fear of being persecuted in his or her home country
2. The persecution would be because of his/her race, religion, nationality, political opinion, or membership in a particular social group

Iraqi Christians fleeing persecution are welcomed as refugees in France. (Joel Saget/AFP)

Some countries' own laws might have broader definitions for asylum. Or countries can provide other forms of humanitarian relief. In Europe, for example, someone who would face a "real risk of serious harm" if she went back to her home country is hypothetically eligible for "subsidiary protection" — even if she isn't being persecuted based on one of those factors above. In the US, meanwhile, victims of human trafficking or violence against women are eligible for special visas if they agree to help law enforcement track down their abusers.

If you get rejected, the government is allowed to deport you

Not everyone who applies for asylum gets it — not by a long shot. In Europe, for example, only about 25 percent of asylum claims are accepted. And while you're allowed to stay in the country while your application is being processed, once you receive a final rejection you're just another unauthorized migrant and have to leave. Again, this is true even for people who've been rescued by the government or people who've been the victim of human trafficking.

Families getting off the plane after being deported to Guatemala last fall. (Johan Ordonez/AFP)

There are some exceptions — the US can't deport anyone to a country it doesn't recognize diplomatically, for example. But as a general principle of international law, two things are extremely clear. An individual has the right to apply for protection from prosecution. But she doesn't necessarily have the right to receive it.

The difference between "refugees" and "asylum-seekers"

The term "asylum-seeker" refers to someone who is trying to get humanitarian protection but hasn't officially been approved yet. The term "refugee" is used for someone who's been officially found to be fleeing persecution, either by the UN High Commissioner for Refugees or by another country.

Syrian refugees in a UNHCR camp. (Chris Jackson/Getty)

In the US, the way this works out is that people who apply for protection in their home countries (via US embassies) or otherwise outside the US get considered "refugees," while people who come to the US and then tell someone they need protection get "asylum."

Many refugees fleeing civil wars (like the one going on in Syria) end up living in adjacent countries in massive, semi-permanent refugee camps, because governments in those countries don't have the infrastructure (or might not want) to fully resettle them into communities.

The long wait, and the uncertainty of permanent resettlement, makes hanging out in refugee camps a pretty unappealing option — some of the people coming to Europe now have left refugee camps closer to Syria. But even if someone's been officially designated a refugee by the UNHCR, he or she still has to apply for asylum in another country upon arriving there.

Countries are supposed to do their part in taking in refugees from elsewhere. But that doesn't excuse them their obligation to let people apply for asylum after they've already arrived.

Kurdish refugees from Syria in a Turkish camp. (Gokhan Sahin/Getty)

It's legal to come to another country without papers and seek asylum

The entire point of asylum, in the words of law professor Musalo, is that "people fleeing persecution don't have the luxury of obtaining legal documents." So while someone seeking asylum often doesn't have legal papers when he gets to his destination, there's a legal process he can follow to ask for asylum when he arrives (or, in the US, up to a year later). If he were turned back and forced to apply for refugee status from his home country (which is nearly impossible) just because he didn't have papers, it would count as refoulement — and would violate international law.

This can get extremely tricky. A border patrol agent can't just look at someone and tell whether he has a legitimate claim to asylum or whether he's coming solely for economic reasons (which would likely just make him an unauthorized migrant). And people fleeing persecution often travel with people who are coming for other reasons. They're often brought or sent by human smugglers or traffickers, who themselves are violating the law. A smuggling ring might even seek out a group of people who are desperate to leave because they're being persecuted.

(Ali Balli/Anadolu Agency/Getty)

But even if there's only one person in a boatload of 800 people who has a good claim for international protection, the country where that boat docks is obligated to hear him out.

That said, people have to go through the process. And this is where, for Europe, it gets tricky.

European countries are fighting over who has to process asylum applications

When countries' obligations under international law meet the EU's internal immigration policy, things get complicated. A large area of the EU, usually called the "Schengen area," enjoys open internal borders and a common labor market, so citizens of one Schengen country can freely live, work, and travel in other Schengen countries without a visa. But there is no common Schengen refugee policy.

People who want to seek asylum in the EU are supposed to apply for it in the first EU country they enter. This is why Italy and Greece, both accessible from North Africa via the Mediterranean, were the first EU countries to get overwhelmed with asylum-seekers: they aren't terribly well-off countries where refugees would particularly want to live, but refugees had to get asylum there before going elsewhere. As 2015 has gone on, though, it's become increasingly clear that the rest of Europe needs to step in to help out Italy and Greece (as well as Eastern European countries taking refugees who've entered over land) — either by sending them a lot more money and resources to process the asylum-seekers they have, or by taking in some asylum-seekers to share the burden.

Sweden — and, for a while, Germany — agreed to do the latter: they agreed to allow refugees to come and apply for asylum, even if they'd entered the EU in another country. That meant that instead of refugees being stuck in the country they entered to apply for asylum, they could race to Germany or Sweden — more desirable countries anyway — and apply for asylum there. (Germany has since reversed itself, and is now operating by the first-entry rule again; Sweden, however, is still allowing refugees to apply for asylum after coming from elsewhere.)

The problem is that, to get to a country where the first-entry rule is waived, refugees have to travel through several countries where the rule is in effect. So countries like Hungary — while they blame Germany for creating an incentive for refugees to come — aren't sending people forward to Germany; they're sending them back where they came from, including to other EU countries. At the same time, however, the countries where refugees are entering the EU — like Croatia — are refusing to process any asylum applications themselves. Instead, they're claiming that refugees can travel to Sweden and apply for asylum there.

Taken to an absurd extreme, that looks like what's happened at the end of this week: Croatia has openly declared that it's not taking asylum claims (except for particularly vulnerable refugees), and that it's doing its job by helping refugees leave Croatia — because in theory they could make it to Sweden. But the refugees aren't making it nearly that far. Slovenia is literally stopping trainloads of refugees at the border and sending them back to Croatia, and Hungary is trying to stop Croatia from bussing refugees to its border. As a result, refugees are ending up with no way to apply for asylum at all.

For the EU, as my colleague Amanda Taub has written, this is a political problem. It desperately needs a unified response to the asylum crisis — not just to deal with refugees themselves, but to demonstrate that European integration means that countries have a shared obligation to help each other out. But it's important to remember that, while Europe is still figuring out whose responsibility it is to welcome asylum-seekers, international law — and the Treaty on the Functioning of the European Union itself — is clear: Europe, as a whole, has to let them make their case to stay.

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