As we’ve discussed before in this blog, and as other human rights advocates have noted, asylum requires traveling to a border. Since you can only apply for asylum after you arrive in a country of refuge, freedom to travel from a place where you are subject to persecution to a country of refuge is a prerequisite for asylum.
But as we have also noted, including in comments earlier this year to the U.N. Office of the High Commissioner for Human Rights concerning the rights of migrants, governments including the US government have steadily increased their efforts to undermine the right to asylum by preventing asylum seekers from traveling to their borders.
The latest step in this direction is the Advance Travel Authorization (ATA) system operated by U.S. Customs and Border Protection (CBP). Under this program, asylum seekers can request permission through the CBP One mobile app to travel to the US. CBP is already operating this system under a temporary “emergency” authorization from the Office of Management and Budget (OMB), but is seeking OMB approval to make it permanent.
As we explain in comments we submitted today to CBP:
Because the US has no jurisdiction and CBP has no statutory authority over travel by non-US citizens within or between other countries or their departure from other countries, and because whether or not a non-US citizen has requested or been granted “permission” from CBP has no bearing on their right to leave any other country or to travel within or between other countries by common carrier or otherwise, this collection of information is of no practical utility for any lawful activity of CBP or any US agency.
Do asylum seekers need permission from the US government to leave other countries where they are being persecuted, or to travel to the US?
No, they do not, as we explain in our comments to CBP:
The unstated but implied minor premise behind the Advance Travel Authorization (ATA) system is that the US has jurisdiction and CBP has authority to control “travel to the US”.
But “travel to the US” consists, by definition, of activities outside US borders: travel within and between other countries and departures from other countries, including inter alia departures from foreign airports and seaports on foreign-registered aircraft and vessels….
We know of no treaty which confers extraterritorial US jurisdiction over, and no statute which grants CBP authority to control, foreign travel or foreign travelers outside US borders, merely on the basis of a claim that they intend at some later point in time to seek entry to the US….
US jurisdiction and CBP authority over travel and travelers are coterminous with US borders and with the entitlement to request asylum in the US. The point at which the US acquires jurisdiction and CBP acquires authority over a traveler is exactly the point at which they reach US territory and become eligible to request asylum in the US…
Not all requests for asylum will be granted, of course. The US is not required to admit everyone who steps across the US border or lands at a US airport or seaport. The US can refuse to admit such an individual and can deport them if their request for asylum is denied, subject to the requirements of humanitarian and human rights treaties and customary international law including the prohibition on refoulement (deportation to a place of possible persecution).
But the right to refuse admission on arrival in the US does not equate to extraterritorial US authority to interfere with, control, or require permission for departure from or travel within or between other countries, prior to arrival at a US border or the limits of US territory.
If an individual wants to depart from some other country and travel through or between other countries to the US border or a US port of entry – whether by land, sea, or air, including by common carrier – and then request asylum in the US, at the risk of denial of asylum and deportation, the US has no jurisdiction over their movements until they reach the US.
Neither CBP nor any US agency has the authority to take a single step outside the US to stop a traveler from approaching the US border or to interfere with their movements on foreign soil or in foreign airspace. Any such activity would be an interference with foreign sovereignty just as much as would any attempt by agents of a foreign government to interfere, within US borders, with the right of US citizens to move freely within the US or to leave the US.
There’s much more that’s wrong with the details of the CBP One app, but the fundamental problem lies in the effort to persuade asylum seekers and airlines that travelers need permission from CBP to travel to the US, and that airlines may refuse to transport asylum seekers who have not obtained an Advance Travel Authorization through the CBP app.
For asylum seekers, that can be a matter of lifetime persecution, or even of life or death:
If airlines or other common carriers refuse to transport them, or if they believe that airlines or common carriers will refuse to transport them, asylum seekers either remain in places where they are subject to persecution or resort to other, more dangerous, means of transport….
If CBP succeeds in its apparent intent to induce individuals not to try to travel to the US, and to induce airlines and other common carriers not to transport them without permission from CBP that they are unable to obtain, individuals who could have afforded an airline ticket to travel safely to the US and who might have been able to obtain asylum once they arrived in the US will be denied access to asylum. Some will be trapped in a lifetime of persecution or subjected to retaliation and greater persecution for seeking to flee. Other will die trying to reach the US.
If CBP doesn’t abandon its plans to make this illegal scheme permanent, there will be a second window of opportunity for members of the public to submit comments to OMB before OMB makes its decision to approve or disapprove this use of the CBP One app.