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?