Right of asylum

See also refugee and refugee law.

Right of asylum (or political asylum) is an ancient judicial notion, under which a person persecuted for his political opinions or religious beliefs in his country may be protected by another sovereign authority, either the Church as in medieval sanctuaries or a foreign country. Political asylum shouldn't be mistaken with modern refugee law, which rather deals with massive influx of population, while the right of asylum concerns individuals and is usually delivered in a case-to-case basis. However, the two may somehow overlap, since each refugee may demand to be accorded on an individual basis political asylum. This right has its roots in a longstanding Western tradition &mdash; although it was already recognized by the Egyptians, the Greeks and the Hebrews &mdash; : Descartes went to the Netherlands, Voltaire to England, Hobbes to France (followed by many English nobles during the English Civil War), etc. Each state offered protection to foreign persecuted persons. However, the development in the 20th century of bilateral extradition treaties has endangered the right of asylum, although international law considers that a state has no obligation to surrender an alleged criminal to a foreign state, as one principle of sovereignty is that every state has legal authority over the people within its borders.

Medieval right of asylum

 * See also: Sanctuary

Many ancient peoples, including the Egyptians, the Greeks, and the Hebrews, recognized a religious "right of asylum", protecting criminals (or those accused of crime) from legal action to some extent. This principle was adopted by the early Christian church, and various rules developed for what the person had to do to qualify for protection and just how much protection it was.

In England, King Ethelbert made the first laws regulating sanctuary in about 600 A.D. By Norman times, there had come to be two kinds of sanctuary:  All churches had the lower-level kind, but only the churches the king licensed had the broader version. There were at least twenty-two churches with charters for that kind of sanctuary, including Battle Abbey, Beverley (see image, right), Colchester, Durham, Hexham, Norwich, Ripon, Wells, Winchester Cathedral, Westminster Abbey, and York Minster.

Sometimes the criminal had to get to the church itself, to be protected, and might have to ring a certain bell there, or hold a certain ring or door-knocker, or sit on a certain chair ("frith-stool"), and some of these items survive at various churches. In other places, there was an area around the church or abbey, sometimes extending as much as a mile and a half, and there would be stone "sanctuary crosses" marking the boundary of the area; some of those still exist today, too. Thus it could became a race between the felon and mediaeval law officers to the nearest sanctuary boundary, and could make the serving of justice a difficult proposition indeed.

Church sanctuaries were regulated by common law. An asylum seeker was to confess his sins, surrender his weapons, and be placed under the supervision of the head of the church or abbey where he had fled. He then had forty days to make one of two choices: surrender to secular authorities and stand trial for the crimes against him, or confess his guilt and be sent into exile (abjure the realm), by the shortest route and never return without the king's permission. Anyone who did come back could be executed by the law and/or excommunicated by the Church.

If the suspect chose to confess his guilt and abjure, he would do so in a public ceremony, usually at the gate of the church grounds. He would surrender his worldly goods to the church, and landed property to the crown. The coroner, a medieval official, would then chose a port city from which the fugitive should leave England (though the fugitive himself sometimes had this privilege). The fugitive would set out barefooted and bareheaded, carrying a wooden cross-staff as a symbol of his protection under the church. Theoretically he would stay to the main highway, reach the port and take the first ship out of England. However in practice, the fugitive could get a safe distance away, ditch the cross-staff and take off and start a new life. But there was one problem: we can safely assume the friends and relatives of the victim knew of this ploy and would do everything in their power to make sure this did not happen; or indeed that the fugitive never reached his intended port of call, a victim of vigilante justice under the pretense of a fugitive who wandered too far off the main highway while trying to "escape".

Knowing the grim options, some fugitives rejected both choices and opted for an escape from the asylum before the forty days were up. Others simply made no choice and did nothing; since it was illegal for the victims friends to break into an asylum, the church would deprive the fugitive of food and water until a choice was made.

Henry VIII changed the rules of asylum, reducing to a short list the types of crimes which were allowed to claim asylum. The mediaeval system of asylum was finally abolished entirely by James I in 1623.

During the Wars of the Roses, when the Yorkists or Lancastrians would suddenly get the upper hand by winning a battle, some adherents of the losing side might find themselves surrounded by adherents of the other side and not able to get back to their own side, so they would rush to sanctuary at the nearest church until it was safe to come out. A prime example is Queen Elizabeth Woodville, consort of Edward IV of England:

In 1470, when the Lancastrians briefly restored Henry VI to the throne, Edward's queen was living in London with several young daughters. She moved with them into Westminster for sanctuary, living there in royal comfort until Edward was restored to the throne in 1471 and giving birth to their first son Edward during that time. When King Edward died in 1483, Elizabeth (who was highly unpopular with even the Yorkists and probably did need protection) took her five daughters and youngest son (Richard, Duke of York; Prince Edward had his own household by then) and again moved into sanctuary at Westminster. To be sure she had all the comforts of home, she brought so much furniture and so many chests that the workmen had to knock holes in some of the walls to get everything in fast enough to suit her.

Modern political asylum
The United Nations 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees guides national legislation concerning political asylum. Under these agreements, a refugee is a person who is outside his or her country of nationality (or place of habitual residence if stateless) who, owing to a fear of persecution on account of a protected ground, is unable or unwilling to avail himself of the protection of the state. Protected grounds include race, nationality, religion, political opinion and membership of a particular social group. The signatories to these agreements are obliged not to return or "refoul" refugees to the place where they would face persecution.

Right of Asylum in France
Political asylum is recognized in France (droit d'asile) by the 1958 Constitution. It has been restricted due to immigration policies with the December 30, 1993 law; the Debré law of April 24, 1997, the May 11, 1998 law and the December 10, 2003 law. Henceforth, critics, including the Human Rights League (Ligue des droits de l'homme - LDH) have opposed themselves to this practical abandon of a longstanding European judicial tradition.

Political asylum is also defined in France by the 1951 United Nations (UN) Convention Relating to the Status of Refugees (ratified in 1952), the additional 1967 protocol; articles K1 and K2 of the 1992 Maastricht Treaty as well as the 1985 Schengen Agreement which defined the European policy on immigration. Finally, right of asylum is defined by article 18 of the Charter of Fundamental Rights of the European Union.

On a purely judicial level, only four conditions may be opposed to the accordance of political asylum to someone who has proven being subject to persecution in his country: the presence of the alien represent a serious threat to public order; his request should be adressed by another sovereign state; his request has already been accepted in another state; the request is an abuse on the system of political asylum.

The December 10, 2003 law has limited political asylum, giving two main restrictions:
 * it invented the notion of "internal asylum": the request may be rejected if the foreigner may benefit from political asylum on a portion of the territory of his state
 * the OFPRA (Office français pour la protection des réfugiés et apatrides - French Office for the Protection of Refugees and Stateless Persons ) now makes a list of allegedly "safe countries" which respect political rights and principles of liberty. In this case, the request may be automatically rejected if the demander comes from such a country.

Thus, although the right of political asylum has been conserved in France in despite of the various anti-immigration laws, it has been severely restricted. Apart of the purely judicial level, the bureaucratic process is also used to slow down and ultimately reject what might be considered as valid requests.

As a current example, since the 2001 invasion of Afghanistan, tens of homeless Afghan refugees waiting to be accorded political asylum have been sleeping in a park in Paris near the Gare de l'Est train station. Although their demands haven't been yet accepted, their presence has been tolerated a while. However, since the end of 2005, NGOs notes that the police separates Afghans from other migrants during raids, and expell in charters those who have just arrived in Gare de l'Est by train and haven't had time to make the demand for asylum.

Right of asylum in the United Kingdom
In the 19th century, the United Kingdom accorded political asylum to various persecuted people, among whom many members of the socialism movement (including Karl Marx, etc.) With the 1894 attempted bombing of the Greenwich Royal Observatory and the 1911 Siege of Sidney Street in the context of the propaganda of the deed anarchist actions, political asylum legislation was restricted.

Right of asylum in the United States
Further information: Political asylum in the United States

Asylum is offered as part of the United States' obligation under the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees. The primary benefit for such an asylum applicant is the eligibility for a work permit (employment authorization) by simply filing an application for asylum with U.S. Citizenship and Immigration Services (UCIS). To the later dismay of a large number of these applicants, however, if their claims of persecution are not backed up by genuine evidence or proofs, the claims are eventually denied and they are placed in removal (deportation) proceedings in the Immigration Court. Since the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act voted in 1996, an applicant must apply for asylum within one year of entry or be barred from doing so unless there were certain exceptional circumstances. Some asylum cases have been also granted based on sexual orientation or gender, where cultural norms of the home country create and sustain conditions that make life unsafe or unbearable for the individual.

As of 2004, recipients of political asylum faced a wait of approximately 14 years to receive permanent resident status after receiving their initial asylee status, because of an annual cap of 10,000 green cards for this class of individuals. However, in May 2005, under the terms of a proposed settlement of a class-action lawsuit, Ngwanyia v. Gonzales, brought on behalf of asylees against USCIS, the government agreed to make available an additional 31,000 green cards for asylees during the period ending on September 30, 2007. This is in addition to the 10,000 green cards allocated for each year until then. This should speed up the green card waiting time considerably for asylees. However, the issue is rendered somewhat moot, since the enactment of the REAL ID Act of 2005 (Division B of United States Public Law 109-13 (H.R. 1268)) eliminated the cap on annual asylee green cards and currently an asylee who has continuously resided in the US for more than one year in that status has an immediately available visa number.