American leaders from across the political spectrum lament the country’s broken refugee system, but they are aligned around shortsighted, reactive solutions that don’t solve the underlying problem: an outdated, unresponsive definition of refugee status that fails to address the real threats refugees face in the 21st century.
Faced with a rise in asylum seekers, policymakers’ first instinct is to limit who and how many are granted asylum. President Biden recently followed this pattern, Unprecedented restrictions The president has passed legislation that undermines the right to seek asylum, including imposing arbitrary limits on the number of “encounters” at the border that would trigger a complete shutdown of the asylum system, but continues to face criticism for not creating higher hurdles to block access and narrow eligibility.
What the US should do is almost the opposite. As surprising as it may sound, expanding the definition of refugee would be a measure to reduce chaos, illegality and inequity at the border and to reduce gridlock in immigration courts. It might not reduce the number of people seeking refuge in the US, but it would help to clear the backlog of asylum cases (more than 1.5 million cases are currently pending between immigration judges and US Citizenship and Immigration Services officials) and would allow US authorities to determine much more quickly which newcomers need protection.
In 1980, the United States adopted into U.S. law the definition of “refugee” contained in the 1951 UN Refugee Convention, which correctly recognizes that people who have a “well-founded fear of being persecuted” should not be returned to a place where they may be harmed because of their identity or beliefs. But adjudicating asylum claims based on this standard is often an exhaustive, slow, and meticulous process, including ascertaining the intent of the persecutors and ascertaining the applicants’ beliefs and identity that underlie the persecution.
At the same time, the 1951 criteria do not explicitly recognise as refugees people fleeing war or clear threats to their life and physical security.
In 2015, Germany faced a massive influx of asylum seekers, about 890,000. Germany also used the 1951 Refugee Convention definition as its first criterion for protection. However, by broadening the criteria to include those who suffered “inhuman or degrading treatment or punishment” and “indiscriminate violence in situations of international or internal conflict,” Germany was able to clear the backlog of asylum applications and begin accepting new applications by September 2017.
The broadened definition has resulted in faster and fairer decisions. The approval rate for some 725,000 asylum seekers from Eritrea, Iran, Iraq and Syria was over 50 percent. Meanwhile, 99 percent of the more than 275,000 refugees from the Western Balkans, where human rights violations are most severe, were rejected. Germany currently has a backlog of just under 250,000 cases.
Forty years ago, Latin American governments Cartagena Declarationis a regional treaty in the Americas that amends the Refugee Convention’s limitations and expands its scope to include “persons who have fled their countries because their life, safety or freedom is threatened by generalized violence, foreign aggression, internal conflicts, massive violations of human rights, or other situations seriously disturbing the public order.”
The language of the Cartagena Convention, combined with the refugee definition, the granting of Temporary Protected Status, and the relaxation of other visa requirements, allowed Latin American countries to grant residence permits and other legal status relatively quickly and flexibly to most of the 6.8 million people forced from their homes by violence and unrest in Venezuela – all without the extensive time and resources the United States devotes solely to determining the protective status of asylum seekers.
As a matter of principle, and under international law, the United States should set asylum standards commensurate with the actual threats faced by people fleeing foreign invasion, civil war, gang violence, and even rising sea levels and other climate disasters.
A broadened refugee definition is not the same as an open invitation to migrate. Applicants must prove that they have suffered inhuman and degrading treatment or a serious threat to their life or physical safety due to a real risk of violence or exceptional circumstances, such as a natural or man-made disaster, for which there are no adequate remedies in their home country. These criteria are easier to assess than the “fear of persecution” criterion. Economically motivated asylum seekers will also be easier to identify, resulting in faster refusals and forced returns.
The United States should do what Germany, 26 other European Union member states, and 16 Latin American countries have done: redesign our understanding of who deserves refugee protection to align it with the forces that are forcing people from their homes today. By broadening its arbitrary definition of “refugee,” the United States could better manage the influx of people seeking protection at its borders and build a more efficient, humane refugee protection system broadly.
Bill Frelick is refugee and migrant rights director at Human Rights Watch.
