Skip to content
Society, Politics & Law

Does the US have a legal obligation to accept refugees?

Updated Monday 30th January 2017

Donald Trump's order preventing entry to the US for citizens of certain countries has proved controversial - but is it legal?

Protests at JFK airport against Donald Trump's executive order stopping entry Creative commons image Icon Beverly Yuen Thompson under Creative Commons BY-NC 4.0 license Protests against the executive order at JFK airport

Donald Trump signed an executive order on January 27 which temporarily bans the majority of refugees from coming to the US and suspends visas for those from seven, mainly Muslim, countries. The Conversation asked Liam Thornton, lecturer in law at University College Dublin, whether the plans breach international law.

If a person arrives on US soil and claims asylum, does the US have to deal with their claim under international law?

Yes. Not only does the US have an international legal obligation to do so, based on the requirement of complying with the object and purpose of the 1951 Refugee Convention, and implementing legal obligations in good faith, it has an obligation to do so under its own domestic law.

The executive order cannot displace domestic legal obligations. So those who, with great difficulty, manage to reach the US will have to have their asylum claims examined. The duty not to return a person to a state where they may face torture or other serious harms is absolute under the UN’s Convention Against Torture. The US has signed and ratified this convention.

However, with the likely increase in asylum detention of people crossing the US-Mexico border that will arise from one of Trump’s earlier executive orders, there is potential for decisions on whether a person is a refugee being made in an exceptionally tight time frame. It’s possible that, more generally, asylum decisions will be rushed through and the law not properly adhered to.

Under international law, can the US ban asylum seekers from certain countries?

Under international law, the US cannot ban asylum seekers from certain countries. The US has signed and ratified a number of international treaties that prohibit religious and race discrimination in the operation of legal systems, and this extends to operating a migration system in line with international non-discrimination protections.

That said, a person cannot claim asylum unless they are on US soil. The executive order will generally suspend issuing visas for 90 days for Iranian, Iraqi, Libyan, Somalian, Sudanese, Syrian and Yemeni citizens under the US visa-waiver programme. An exception for “religious minority” – such as Christians from these countries – appears to be nothing more than a poorly attempted disguise to try to ban Muslims from these countries from reaching US soil.

However, this prevention of safe, legal and accessible routes is not unique to the US. In the European Union, the imposition of visa rules for countries that produce the greatest number of refugees, is precisely what is leading thousands of migrants and refugees to make the perilous Mediterranean crossing. So while you have a right to leave your country, all too often your right to claim asylum in another country can be ignored by states through imposing harsh visa requirements which prevent potential refugees arriving in a country and lodging an asylum claim. For example, a Syrian refugee living in Turkey who is unlikely to get a visa to enter Europe’s Schengen zone, may choose to resort to crossing the Mediterranean in a boat.

Why is the refugee admissions programme being paused?

The US Refugee Admissions Programme (USRAP) deals with people referred from the UNHCR, a US embassy or assigned non-governmental organisations, or a limited direct application scheme. It is open to people who already have refugee status (or would be likely to qualify), who are outside the US, but may wish the US to consider them for entry as a resettled refugee. The US had been due to take in 110,000 refugees under USRAP in 2017, but in the executive order Trump indicates he wants this number to be more than halved to an intake of 50,000 refugees. The executive order calls for USRAP to be paused for all refugee applicants for a period of 120 days. The reason Trump offers for this suspension is to ensure the already complex vetting processes are strengthened.

The US takes the largest number of people under UNHCR’s resettlement programme. Looking to international law, there is no legal obligation to have or operate a resettlement programme.

Yet, an exceptionally concerning aspect of the executive order is to exclude Syrian refugees from being resettled in the US under USRAP. This exclusion is to remain in place until such time as Trump has determined that entry of Syrian refugees aligns “with the national interest”. Trump has proposed that “safe zones” are to be planned for refugees within Syria as a result of the Syrian citizen exclusion from USRAP.

How many asylum seekers are we talking about?

From 2013 to 2015, only 1,823 Syrian refugees were accepted under USRAP. Therefore, Syrian refugees constituted an exceptionally small number of the almost 210,000 refugees accepted for resettlement in the US between 2013 and 2015. Outside of USRAP, the number of individual Syrians claiming asylum on the territory of the US between 2013 and 2015 was exceptionally low. This is because visa laws already in place manage to deflect most Syrian asylum applicants from ever reaching the US. The proposed visa prohibition will mean the numbers of Syrians claiming asylum at US borders will decrease.

What means does the international community have to punish the US if it breaches international refugee or asylum law?

Well, that is the significant issue with international legal obligations and domestic enforcement of these obligations. International refugee and international human rights law relies heavily on attempting to embarrass or pressure a state to comply with their international legal obligations. This can have some effect on smaller states – for example in Ireland, the UN Human Rights Committee added to the chorus of activist agitation for seeking to change misogynistic laws on abortion.

However, a country as powerful as the US can easily set aside international legal obligations to which they had previously adhered. So I would be surprised to see any “punishment” from the international community. If the international community is genuinely outraged by this decision, other countries need to start planning to increase their own refugee resettlement programmes, along with ensuring safe, legal and accessible routes of entry for those seeking sanctuary. But, given the current political climate in Europe, Australia and elsewhere, I’d expect a rather muted response to the executive order.The Conversation

This article was originally published on The Conversation. Read the original article.

Editor's note: the standfirst to this article was revised to reflect that the Executive Order blocked entry, and not just immigration, to the US for those affected

 

For further information, take a look at our frequently asked questions which may give you the support you need.

Have a question?

Other content you may like

Who counts as a refugee? Copyrighted image Icon Copyright: Used with permission free course icon Level 3 icon

Society, Politics & Law 

Who counts as a refugee?

The words 'refugee' and 'asylum seeker' have a wide variety of connotations in Britain, many of them negative. This free course, Who ------ as a refugee?, explores how changing social policy and terminology help to shape, and are shaped by, the experiences of people seeking asylum in the UK.

Free course
10 hrs
Gendering refugee experiences Creative commons image Icon James Gordon under Creative Commons BY-SA 4.0 license article icon

Society, Politics & Law 

Gendering refugee experiences

More than one million people sought safety in Europe in 2015. This is no small number: Amnesty International have called this  ‘the worst refugee crisis of our era’, paralleled only by the mass movements of people in the Second World War. But what makes a refugee, where do refugees come from, and where do they go to?  

Article
The refugees hoping to make a splash at Rio 2016 Creative commons image Icon UN Brasil under Creative Commons BY 4.0 license video icon

Health, Sports & Psychology 

The refugees hoping to make a splash at Rio 2016

This year's Olympics includes a team of Refugees for the first time. Hear some of the athlete's stories - and find out why their participation is central to the Olympic ideal.

Video
5 mins
OpenLearn Live: 17th June 2016 Copyright free image Icon Copyright free: NASA article icon

Science, Maths & Technology 

OpenLearn Live: 17th June 2016

The moon that wasn't there. Twice. Then more free learning through the day.

Article

Society, Politics & Law 

Exploring the boundaries of international law

This free course, Exploring the boundaries of international law, is designed to provide you with an introduction to key concepts underpinning your study of international law. It introduces the concept of international legal personality, explores the status of the state, the principle of sovereignty and summarises the principles of jurisdiction.

Free course
15 hrs
Interview: Mohammed Musoke Copyrighted image Icon Copyright: Production team article icon

Society, Politics & Law 

Interview: Mohammed Musoke

An interview with head of art and design Mohammed Musoke, part of BBC FOUR's African School series

Article
What does President Macron mean for Brexit? Creative commons image Icon Official LeWeb Photos under Creative Commons BY 4.0 license article icon

Society, Politics & Law 

What does President Macron mean for Brexit?

A new occupant at the Elysée Palace - and a stongly pro-European one at that. What does that mean for the process of the UK leaving the EU?

Article
Exodus: The videos Copyrighted image Icon Copyright: The BBC video icon

Society, Politics & Law 

Exodus: The videos

A collection of clips from our award-winning programme Exodus: Our Journey To Europe, which explored first-hand the reasons why people make the choice to face the risks of migration.

Video
5 mins
HIV AIDS in developing countries Copyrighted image Icon Copyright: Used with permission article icon

Society, Politics & Law 

HIV AIDS in developing countries

Why HIV AIDS has taken such a disproportionate hold in developing countries

Article