"The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence."
(Article 31 (1), Convention and Protocol Relating to the Status of Refugees, 1951, UNHCR)
Convention and Protocol Relating to the Status of Refugees forms one of the most important legal institutions of international refugee regime. As one examines the article 31 of the convention cited above, it is rather clear that, under international law, a person can enter a country with or without proper documentation, such as passport or travelling visa, in the purpose of claiming asylum. Furthermore, it is evident that any mean of entering, whether through governmental border entry point or with the help of a smuggler, are legal as well.
Also, it follows from the article that claiming asylum is not an illegal act (Gomez & McKanders 2017). Travelling in order to claim for an asylum, as well as the claiming process itself, is no more unlawful than my neighbor visiting a grocery store or my friend applying for economic benefits for students from the government. However, as many publications and a lot of research material have shown, asylum seekers are treated more and more with suspicion and as if they were, indeed, criminals.
This development can be seen most clearly in the US, where detention of asylum seekers upon claiming for asylum is a norm. Detention is expanded to concern unaccompanied minors too: In 2014, 68,541 children were detained at the US-Mexico border. Since these individuals in detention haven't committed a crime by entering the country or by claiming asylum, the arbitary deprivation of their freedom becomes highly questionable. (Gomez & McKanders 2017). Furthermore, detention of children, whether accompanied by an adult or not, is even more questionable.
Detention is also problematic in regards to the obtainability of legal help. As it has been illustrated in class many times by Dr. Tricia Hepner and Dr. Karla McKanders, the detention camps are often located far from the big cities, in which most lawyers hold their practises. Furthermore, since the governmental institutions often regulate heavily communication and visiting from and to the camps, this regulation hinders even further the possibility to find legal help for one's asylum case in a country, in which legal help is not guaranteed by law.
Europe may fare a bit better when it comes to the treatment of asylum seekers, but a detention is a used practice here too. In example, German government issued a law under which the state has the right to detain asylum seekers entering the country if they are travelling from another EU country (Gomez & McKanders 2017). This procedure is justified on the basis of Dublin Regulation. In the official web page of European Commission, in regards to the Dublin Regulation, it is stated: "The Dublin Regulation establishes the Member State responsible for the examination of the asylum application." (European Commission 2017). Based on the web page, it seems that the Dublin Regulation imposes responsibilities on states only, but not on individuals such as asylum seekers. There were no explicit mentions on the obligations individuals, but several on states. As the lack of my resources at this point is limited, this notion is nothing more but highly speculative.* I'm hoping to elaborate this issue furthermore on my term paper.
For a conclusion, I would like to draw a broader picture to which this issue of detention and criminal-like treatment of asylum seekers is part of. Didier Fassin argues in his article Policing Borders, Producing Boundaries that asylum seekers are nationally subjected on more and more suspicion and scrutiny, thus delegitimizing the asylum institution in France. Matthew J. Gibney, in his book The Ethics and Politics of Asylum, elaborates the policies both German and US governments have implemented in order to keep individuals from claiming asylum in the first hand, such as by limiting visa-distribution for certain nationalities in German embassies or intercepting and deporting rafts in the Caribbean sea before they even enter the US waters.
These procedures of limiting successive asylum claims in any means necessary seem to imply strong hypocrisy and double-standards at the level of national asylum policies. On the one hand, as western democracies, states must respect the obligation of the legal basis of society. On another, the moral legitimacy of claiming an asylum is thwarted by any means as long as it is commissioned accordingly to the international law.
If the reason for this direction of action is in the need to be sure that only legitimate asylum claims get accepted, I would like to draw attention to the following analogy as a source of moral reflection point on the issue:
A professor of mine once stated: "For a Finnish, the worst fault the judicial institution can commit is to sentence an innocent. For an American, the worst fault is if a guilty walks free". In consideration to current asylum procedures, which is worse: That a illegitimate claim succeeds or that a legitimate claim doesn't?
And if the reason is something else, well, then maybe we should re-examine our priorities a bit more further.
*This notion is included in the hope that someone more educated in the subject matter reads the article and can assist me with providing further knowledge.
References:
European Commission; 2017; https://ec.europa.eu/home-affairs/what-we-do/policies/asylum/examination-of-applicants_en
Fassin, Didier; 2011; Policing Borders, Producing Boundaries. The Governmentality of Immigration in Dark Times
Gibney, Matthew J.; 2004; Chapter 3: The Federal Republic of Germany: the rise and fall of a right to asylum & Chapter 5: The United States: the making and breaking of a refugee consensus; in The ethics and Politics of Asylum: Liberal Democracy and the Response to Refugees
Gomez, Valerie & McKanders, Karla Mari; 2017; Refugee Reception and Perception: U.S. Detention Camps and German Welcome Centers
UNHCR; 1951; Convention and Protocol Relating to the Status of Refugees, Article 31 (1)
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