The Purpose of Asylum
Author: Nathwani, Niraj
Source: International Journal of Refugee Law, Volume 12, Number 3, 1 July 2000 , pp. 354-379(26)
Publisher: Oxford University Press
Abstract:The institution of asylum faces a serious crisis in Europe. At the root of this problem lies the perception that refugee law and asylum practice obstruct the efficient enforcement of a restrictive immigration policy. It is also seen to weaken the deterrence effect of the main instruments (punishment, forcible expulsion) used to combat unwanted immigration. This crisis highlights the need to explain the following question: Why should asylum be granted, given that EU Member States are committed to a restrictive immigration regime. Past explanations of the purpose of asylum are not fully satisfactory on this account. The theory of diplomatic protection by Paul Weis and the theory of de facto statelessness by Atle Grahl‐Madsen are designed to explain the difference of treatment between a refugee and a normal alien resident abroad; these theories therefore presuppose the fact of immigration, and cannot explain why unwanted immigration should be permitted exceptionally. The human rights theory is capable of explaining asylum practice against the background of a restrictive immigration regime, but relies exclusively on altruism. Also, the proliferation of human rights results in the plea for asylum for all human rights victims conflicting with a restrictive immigration policy. If the human rights theory were taken seriously, States would find it difficult to realise the policy goal of restricting immigration. The human rights theory therefore appears to be utopian. The concept of necessity offers a useful approach. Morally, necessity explains the conditions under which it would be unfair to fight off unwanted immigrants by deportation and punishment. Practically, necessity explains the conditions under which immigration control is not feasible at a reasonable cost versus desperate individuals. Instead of forcing refugees into hiding, the flow of forced migrants needs to be managed instead. The institutional means to do so is asylum. It follows that both, morally and practically, necessity trumps a restrictive immigration policy and qualifies as a robust explanation of the purpose of a limited, but fair asylum policy.
Document Type: Research Article
Publication date: 2000-07-01
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