The University Kent is applying for University of Sanctuary status which aims to ‘make Higher Education institutions places of safety, solidarity and empowerment for people seeking sanctuary’.
To help ensure that the University’s application process is properly reflective and self-critical, the Migration and Movement Signature Research Theme held a series of seminars throughout the year that addressed the question ‘What is Sanctuary?’
Speakers from a range of disciplines, career stages and backgrounds discussed what sanctuary means and entails. Sian Lewis, Senior Lecturer in Law, was one of those speakers and has written, here, about the subversive roots of sanctuary and how she harnesses this through her teaching.
Introduction
“Sanctuary” is closely associated, and sometimes used interchangeably, with the word asylum; it is nevertheless useful to separate them:
- sanctuary tended historically to be used to refer to the place where
- protection (asylum) could be provided.
In refugee law and legal literature, the word asylum is far more likely to be used than sanctuary – thus people escaping persecution or war are referred to as asylum seekers. Asylum is the instrument of protection while refugee status is one of the categories of protection.
“Sanctuary” alludes to holy places and has distinctly religious roots; evidence of sanctuary exists in the histories of ancient Rome and Greece as well as in biblical texts[1]. The word asylum comes from the Greek “asylon”, meaning not to be subject to seizure, and/or “asylia”, meaning inviolability. In Ancient Greece[2], the obligation on the person seeking protection was, having entered a place of a sanctuary such as a temple, to perform a rite of supplication to the relevant god; it was open to anyone including run-away slaves and people fleeing justice for crimes they had committed.[3] Thucydides, writing about the Peloponnesian war, tells of Pausanias, a Spartan general who was wanted on charges of conspiracy to seize power in Sparta; in response, he fled to the Temple of Athena where he sought sanctuary.[4] He eventually came to an unhappy ending there – the Spartans built a wall around the Temple and starved him to death! The person requesting asylum in a Greek temple had to demonstrate he was deserving of protection and then and only then, was he granted asylum. This process is, very interestingly, mirrored in the modern-day approach to granting asylum under both the Refugee Convention and human rights instruments – it is an individualised procedure where the person must demonstrate they are deserving of protection.
The concepts of asylum and sanctuary developed elsewhere in Europe too. In England they date back at least as far as Anglo-Saxon times, with the first known text on the subject being the Council of Orange, AD 441.[5] Sanctuary had become part of the Common Law by the Middle Ages and was also embodied in canon law.
Sanctuary in England in the Middle Ages
Much like the Greek instances of sanctuary, the grant of sanctuary by churches in England in the Middle Ages[6] was given to people fleeing having committed a crime. Sanctuary was not personal; it was privilege belonging to the churches. It provided protection to a person if they placed themselves inside a church, or attaching themselves to the doorknocker. A person could remain there for 40 days; thereafter he could either hand himself over to the authorities to face trial or flee the realm. In fact, many went from church to church, each allowing them 40 days’ protection. As in Ancient Greece, so in England, a person could be starved out if they remained in a particular church for more than 40 days. Furthermore, anyone caught helping the fugitive after this point would be considered an accessory to the original offence. This is echoed in modern times, by the development of “solidarity crimes” which criminalise actions such as providing irregular migrants with water, food or temporary shelter in the desert[7], or rescuing them from sinking vessels[8].
As we can see so far, in ancient times and in the Middle Ages, sanctuary was granted to people fleeing criminal justice.
The development of sanctuary in the USA
Sanctuary in the USA has developed differently. The Sanctuary Movement first emerged among churches and synagogues in the 1980s in response to US policies in Central American states which were then engulfed in civil wars. The US actively supported those governments, providing training and sending arms to quell the opposition. Government opponents in those countries were often tortured and killed by death squads; thousands fled to the USA as a result. These forced migrants were routinely rounded up by US authorities, detained, and deported without access to the asylum system.[9] Pirie suggests the reason was that these were people fleeing regimes friendly to the USA.[10]
Churches in the southern US, somewhat extraordinarily perhaps given their reputation for both political conservativism, began to offer these people sanctuary in their places of worship. Many in their congregations were horrified by the human rights atrocities perpetrated in Central America and simultaneously outraged that the US authorities refused the migrants opportunities to claim asylum.
Unlike the sanctuary of old, those provided sanctuary in American places of worship were not fugitives from criminal justice in the sense described; rather they were fugitives from immigration enforcement. While breach of immigration law is criminalised in most western jurisdictions, most immigration authorities focus their attention on deporting rather than pursuing irregular migrants through the justice system. So, the concept of sanctuary has morphed from protection from prosecution to protection from the risk of persecution.
The acts of sanctuary performed by churches and synagogues were deeply subversive. They were designed to prevent people from being removed by immigration enforcement officials and returned to the prospect of human rights atrocities at home. Sanctuary also exposed those providing it – priests, rabbis, nuns and members of congregations – to immigration law breaches themselves, by harbouring so-called illegal aliens. Many were in fact charged with, and faced trial for, immigration offences. Remember, these were hardly leftist agitators – these were most likely people who form the bedrock of Republican support.
The Sanctuary Movement initially only involved about 200 congregations. However, it did seem to prompt wider thinking in the USA about sanctuary, such that there are now whole cities of sanctuary[11]. It thus crossed over from being the domain of Christian or Jewish charity into the secular domain.
Sanctuary cities[12] generally adopt one of two types of policy: (i) a policy of not inquiring about a person’s immigration status, (ii) a policy of refusing to cooperate with federal immigration law enforcement unless required by law[13]. Some states have also adopted similar policies, enacting laws designed to limit their co-operation with federal immigration law enforcement. An example is the California Values Act[14]. Villazor & Godinez-Navarro claim “[It] prohibits using state and local government resources to arrest a person on the basis of civil immigration law violations, prohibits state and local employees from inquiring about a person’s immigration status, and prohibits the detention of an individual based on a detainer request by immigration officers”[15]. They also point out that some states pull in the opposing direction – including Texas that passed a law[16], which provides that a “local entity shall not adopt, enforce, or endorse a policy under which the entity prohibits or discourages the enforcement of immigration laws.” As Ayers points out, supporters of sanctuary in the US feel bound by moral necessity to resist what they deem to be unjust immigration laws, whereas opponents of sanctuary see those engaged in the movement as lawless rebels against federal power.[17]
Friedman-Boyce et al, argue that Cities of Sanctuary have a central aim[18] – to build community trust to “promote public safety and confidence in local law enforcement.”[19] They indicate that victims and witnesses who are in irregular immigration status are unlikely to make contact with law enforcement, because doing so would place them at risk of deportation. Where a city adopts a sanctuary policy, there is a far greater likelihood of irregular migrants coming forward to report crimes or provide witness statements. This understanding of sanctuary therefore goes significantly beyond merely ensuring a person remains in the territory and moves towards integration of the person into the community. Clearly, this goes much further than either ancient notions of sanctuary or sanctuary performed by churches in England in the Middle ages, or even the faith based idea of sanctuary in the USA.
Concluding comments
Sanctuary has deeply subversive roots and has emerged in the USA as a subversive movement in the modern era. Recently, realising that that British Universities are now required to perform an immigration function, in that we are obliged to provide the Home Office with data on international student attendance in class, I considered which acts of subversion were open to me. My conclusion was to start every module by asking students, why do you think I am taking a register? Most of them haven’t much of a clue to begin with, but after a few minutes of discussion, they usually get there, and they are usually shocked. Knowledge, as they say, is power.
[1] See Pirie, The Origins of a Political Trial: The Sanctuary Movement and Political Justice, (1990) 28(2) Yale Jo of Law and Hums, 380 at p 388
[2] Burson, Refugee Status Determination in Costello et al (eds) The Oxford Handbook of International Refugee Law (2021) chapter 31
[3] The Ancient Origins of Asylum: Part II
[4] Encyclopaedia Britannica: https://www.britannica.com/biography/Pausanias-Greek-military-officer He came to an unhappy ending there though – the Spartans built a wall around the Temple and starved him to death!
[5] Baker, JH, The English Law of Sanctuary, Ecclesiastical Law Journal (1990) 2(6), 8-13
[6] until it was abolished by Henry VIII
[7] Eg eg Scott Daniel Warren https://www.nbcnews.com/news/latino/volunteer-arrested-after-giving-food-water-undocumented-immigrants-arizona-n840386
[8] see the case of Sean Bender and Sarah Mardini charged with serious crimes in Greece, carrying 25 year sentences
[9] See Pirie, T he Origins of a Political Trial: The Sanctuary Movement and Political Justice, (1990) 28(2) Yale Jo of Law and Hums, 380
[10] Loc sit.
[11] Lasch et al, found that many towns, boroughs, counties and sheriffs also have adopted sanctuary policies, Lasch et al, 59(5) Boston College Law Review, 1703, at 1710-11
[12] Rose Cuison Villazor & Alma Godinez-Navarro, ‘Sanctuary States’ (2019) 48 Southwestern Law Rev 503
[13] Lasch et al, who conducted an in-depth survey of sanctuary policies in the USA, suggest there are actually 5 types of policy. Ibid at p 1737
[13] SB 54
[14] SB 54
[15] Ibid at 507
[16] SB 4
[17] Ayers, Missing Immigrants in the Rhetoric of Sanctuary,
[18] Friedman-Boyce et al, Legal Analysis: Sanctuary Cities, Distinguishing Rhetoric from Reality, 61 Boston Bar Journal, 8
[19] Ibid at p 8