The evolution of the right of asylum in the digital era
By: Jorge Leyva
The right of asylum was historically structured as a protection mechanism against identifiable acts of persecution, carried out by state authorities or by actors tolerated by them, and proven through facts verifiable in the physical space. That design corresponded to a model of power that was visible, territorial and formally attributable. The digital transformation of the exercise of power has altered that premise without a corresponding adjustment of the analytical standards applied by the international protection system.
Today, a significant portion of decisions that produce direct effects on liberty, personal security or the ability to remain within a territory are not executed through easily attributable individual acts, but through systems of surveillance, mass data processing and algorithmically constructed risk profiles. When these systems operate in authoritarian or hybrid contexts, they generate forms of functional persecution that do not always adopt the classical appearance of repression, yet produce comparable or even more intense legal effects.
Persecution thus ceases to manifest exclusively as detention, criminal prosecution or explicit threat, and instead operates through systematic exclusion, anticipatory neutralisation or the practical impossibility of exercising basic rights. Repeated denial of documents, inability to access essential services, activation of internal security alerts or inclusion in opaque control lists constitute mechanisms of sustained pressure that structurally alter the individual’s legal position vis-à-vis the state. In such scenarios, the absence of a single formal act does not negate the existence of persecution. It merely shifts the way in which it is produced.
The core legal problem does not lie in technology itself, but in the mismatch between the effects produced and the evidentiary standards traditionally required in asylum matters. When the analysis remains anchored to the demand for singular acts, official documents or express decisions, the system leaves unprotected those who are subjected to continuous forms of harassment that operate precisely through opacity, fragmentation and formal denial. The practical effect is the elevation of the evidentiary threshold to a level incompatible with the protective function of asylum.
This mismatch requires a reconceptualisation of the object of legal analysis. The decisive element is not the form of the act, but the intensity and predictability of its effects. When a set of technical, administrative or automated decisions consistently produces a serious deterioration of an individual’s legal situation for political, ideological or state-control reasons, the requirement of persecution is functionally satisfied, even in the absence of an individualised decision susceptible to direct challenge in the domestic legal order.
From this perspective, the right of asylum is neither expanded nor relaxed in a discretionary manner. It is adjusted in order to continue fulfilling its structural function in the face of new modalities of power. Maintaining evidentiary standards designed for an analogue context when confronted with digital mechanisms of persecution does not preserve legal certainty. It empties international protection of its substance.
The legal consequence is clear. In contexts of digitalised persecution, the examination of asylum claims must centrally incorporate the analysis of patterns, cumulative effects and control structures, rather than limiting itself to the verification of isolated acts. Denying protection on the basis of the absence of an identifiable formal act amounts to requiring the persecuted individual to translate structural harm into an evidentiary format that the very system of persecution has been designed to prevent. That requirement is not neutral. It produces a material denial of the protection that the right of asylum is meant to guarantee.