By Susan Fratzke, Meghan Benton, Andrew Selee, Emma Dorst, Samuel Davidoff-Gore 

  The territorial asylum system at the heart of the global protection regime has proven itself to be a blunt tool with which to address the protection challenges of the 21st century. New crises, protracted displacement situations, and expanding norms about who merits protection have created a significant and growing population of individuals in need of international protection. In addition, growing mobility pressures due to demographic change, economic inequality, and climate change have found an outlet in asylum systems, providing an avenue of entry even for those who do not technically qualify for protection. Meanwhile, national governments have struggled to reconcile their international protection responsibilities with their domestic responsibilities to maintain security and order and to foster public trust. Asylum adjudication systems have become unwieldy and unable to keep pace with the demands placed on them, particularly when confronted with rapid changes or complex needs. These failures have had serious consequences. For individuals, the absence of large-scale alternatives to territorial asylum means that access to protection often depends on taking extreme risks or enduring hardships in order to reach the territory of a country where they can seek protection, journeys that may not be possible for the most vulnerable. For states, territorial asylum places governments in a largely reactive position, only responding to protection needs once their hand is forced by the arrival of people seeking protection on their territory. And at the global level, the lack of tools to facilitate the legal mobility of individuals in search of protection and of opportunities for displaced persons to move to a country other than their country of first asylum has concentrated protection responsibilities in a small number of countries, most of them low- or middle income. According to estimates by the United Nations High Commissioner for Refugees (UNHCR) nearly 40 percent of the world’s refugees and individuals in refugee-like situations were hosted by just five countries as of mid-2023. To answer these challenges, there is an urgent need to shift the focus of protection responses away from an exclusive reliance on territorial asylum and toward a diversified set of policy tools. Territorial asylum will, and should, remain accessible as a safety valve, but states should seek to proactively facilitate access to protection as soon after and close to a displacement crisis as possible—and well before dangerous journeys become necessary. At the same time, policy approaches should recognize the agency of refugees and displaced persons—and the mobility pressures this can create—and provide legal avenues for individuals to move within and outside of their country of first asylum to join family and other connections through family reunification or sponsorship channels and to pursue education, work, or other opportunities. Aside from the benefits for displaced persons, such approaches would help transit and destination countries to reduce disorder at their borders and, by capitalizing on the resiliency and resourcefulness of displaced individuals in locating and securing solutions for themselves, to better allocate scarce resources to assist those who are most vulnerable. Policy approaches should also be responsive to the specificities of each crisis or situation. This may mean adopting expedited procedures or flexible forms of status in order to enable faster access to  status, prevent processing backlogs, or respond to legitimate needs that are not recognized in existing legal frameworks.    

Washington, DC: Migration Policy Institute, 2024.  33p.

By Denise Gilman

The United States treats asylum as exceptional, meaning that asylum is presumptively unavailable and is offered only in rare cases. This exceptionality conceit, combined with an exclusionary apparatus, creates a problematic cycle. The claims of asylum seekers arriving as part of wide-scale refugee flows are discounted, and restrictive policies are adopted to block these claims. When asylum claims nonetheless continue to mount, the United States asserts “crisis” and deploys new exclusionary measures. The problems created by the asylum system are not addressed but are instead deepened. This Article encourages a turn away from policies that have led down the same paths once and again. This Article first describes the development of the modern U.S. asylum system, highlighting data that demonstrates the extent to which exceptionality is a basic feature of the system. In doing so, this Article reconsiders an assumption underlying much scholarship and commentary—that the U.S. asylum system is fundamentally generous even if it has sometimes failed to live up to its promise. This Article then establishes that the emphasis on exceptionality has led to an exclusionary asylum process. Most asylum claims are adjudicated within deportation proceedings, and policymakers have imposed layers of additional procedural barriers. Next, this Article presents the problems created by the system. It documents how the system places genuine asylees in danger while causing violence at the border. Further, embedded bias in the system, resulting from the focus on exceptionality, favors asylum claims from far-flung nations such as China over commonly arising claims from nearby troubled countries. This bias creates a legitimacy problem. The system also violates U.S. law and international human rights and refugee law  This Article concludes by offering suggestions for more stable, effective, and humane policies to address asylum seekers in the United States. In addition to eliminating many existing substantive restrictions on asylum, the system should incorporate group-based eligibility for applicants from designated nations or situations that are sending significant refugee flows. Finally, the United States should adopt a specialiZed non-adversarial asylum system for all cases, apart from the deportation system and with genuine independent review of denials of asylum.

  Loyola University Chicago Law Journal, 2023.