There is no right to guaranteed asylum in international law, only the right to request it. In order to be granted asylum under international refugee law, asylum seekers must place themselves in the position of supplicants to the putative host state. It is left to the receiving state to decide whether to grant asylum or not. Moreover, the criteria for granting asylum are inescapably subjective and politically biased. Decisions about whether or not the actions of states towards their citizens constitute persecution or legitimate prosecution is one such judgment. The question of whether people should be excluded from refugee status because their actions were political or straightforwardly criminal is another. Questions over the nature of harm and the causes of harm that should give rise to a valid asylum claim also involve questions of ethics, of who is considered “deserving” of asylum.
Because the asylum framework is constructed upon such subjective criteria, and is administered by states themselves, the decisions about who receives protection are stuck within a statist paradigm. Asylum is conceived of as a gift of the state, over which the state has discretion in how requests are considered. And that paradigm is framed by the prejudices of each particular state, and of all states generally. This statist bias is evident in various political dynamics: the discourse that labels refugees as “genuine” or “bogus” based on whether or not they have been granted refugee status; the presumption that refugee claims are themselves a burden on the state and a threat to sovereign control over borders; and the ideological and geopolitical interests that decide whether people coming from a particular country are fleeing persecution or legitimate prosecution.
This state of affairs presents a trap for asylum seekers as they become subject to the sovereign will not just of their home state but of all potential receiving states too. With the rapid spread of nativist politics tied to concerns about maintaining national sovereignty, and the hegemony of international refugee law in setting the terms of asylum, it is necessary to create an alternative vision of what asylum is and how it should operate.
The notion of “grassroots asylum” is derived from the nonstate paradigm of asylum that was historically rooted in sacred spaces — temples, churches etc. — in which the writ of secular law did not apply. This tradition was effectively ended with the advent of the modern nation-state. However, it has continued to reappear in different guises since then, including: regicides fleeing the restoration of the English monarchy in New England settlements in the 1660s; the Underground Railroad for escaped slaves in the mid-nineteenth-century United States; the hiding of Jews in villages during the Nazi occupation of France; church sanctuary given to Vietnam War draft resisters; the same given to Central American refugees in North America in the 1980s; the rise of the Sans-Papiers movement in France in the 1990s. All of these examples shared two things in common. First, they were all forms of protection or asylum granted by communities rather than states. Second, they were created in direct opposition to the state, both by challenging the imposition of particular laws and also, more fundamentally, by challenging the right of state control over space. Thus, they offer an alternative to a statist paradigm of asylum that presents, at best, an obstacle course to be navigated, and at worst, a barrier to protection.
Grassroots asylum can be conceived on either a humanitarian or a political basis. A humanitarian grounding suggests an openness closely aligned with hospitality — that is, a willingness to receive others purely on the basis that they are fellow humans who are in danger. A political approach, by contrast, is one grounded in solidarity according to political, religious, national, and other characteristics of both the host community and the putative asylee. It must be admitted that there are pitfalls with both approaches. A practice of asylum based on humanitarianism is not one that has ever been practiced, as far as I am aware, because the nature of asylum is that it inescapably makes judgments about who is deserving of protection, while the humanitarian approach asks us to suspend such judgments. This was a practical problem faced by the U.S. Sanctuary Movement in the 1980s. While at first they opened their spaces of safety to the campesinos, trade unionists, and others fleeing the death squads in El Salvador and Guatemala, eventually members of those death squads also sought sanctuary, once fortunes began to shift in those civil wars. Sometimes the murderers entered the very same towns and churches where their erstwhile victims were already residing. The Sanctuary Movement, in its heartland of Tucson, split on the question as to whether or not to give these new arrivals sanctuary.
The political approach does, of course, entail the same issues as those identified with the legal approach — namely, that it is subjective and selective. However, in this case, the biases are open and clear, and thus open to contestation in a way that is precluded by law, which claims to be objective and neutral. The very fact of an open argument about who should be granted asylum, based on ethics and politics, creates a space for different communities to agitate and to welcome and support those whom they see as deserving of asylum. Some may worry that such arguments create the potential for communities to deny as well as grant asylum, but that dynamic is already at play — too often cloaked in “objective” ideas about “genuine” and “bogus” refugees. Often, they are also expressed in terms of a supposed burden to the host community. That, too, is an argument that cannot simply be ignored by hiding behind legal frameworks. However, as soon as we start talking about the politics of asylum, questions come into play about the responsibilities of putative host societies or their states towards refugees, for the conditions that have led to their forced exit from their homes in the first place.
If we are serious about asylum as protection, rather than simply as a burden-sharing mechanism between states, then we need to focus attention on asylum as a practice rooted in communities, which does not cede the right of determination to the state.
Dr. Simon Behrman teaches law at Royal Holloway, University of London. He is currently working on two projects that examine those left out of international refugee law: “climate refugees,” and forced migrations in South Asia.