MOOC: https://courses.edx.

org/courses/course-v1:LouvainX+Louv21x_E+1T2021/course/

Conception and layout: Annie Fourny

Remember Aeschylus and the Suppliants seeking asylum. In Module 2 we explored the necessity for
an asylum seeker to access another territory to find an authority that will examine the application
for refugee status. This was the study of the principle of non-refoulement and in the European
framework, of the Dublin Regulation on determining the State responsible for examining an asylum
application.
Now we are left with some questions: would the Danaids be recognized as refugees? What is the
concept of refugee? What is the definition of this international protection?
There are four different types of international refugee protection:
1° The 1951, Geneva Convention defines the statutory refugee who will benefit from this
status under the Convention.
Although we will examine them later because they are more regional, the other types are:
2° A form of subsidiary protection which concerns war refugees in particular.
3° Another form that could be called subsidiary-subsidiary protection, although it is not
really a protection; it is simply the principle of non-refoulement or the impossibility of sending
someone back to a country where this person fears for her or his life or freedom, even if
he or she has been excluded from the Geneva Convention or subsidiary protection.
4° Group protections which can be qualified as temporary protection when there is an influx
of people. This will also be done within the framework of regional, European, African,
South American, and Central American texts. We will see this in more detail in the module
on regional protection (module 4).
In addition to these four types of international protection, one could also add national protection.
Although it varies from State to State, some constitutions provide for national protection in the
form of asylum as part of the exercise of sovereignty. We saw this in the Italian Constitution. But
remember, the Italian Constitution itself refers to the Geneva Convention. So, we come back to
this first type of protection, which we are now going to analyze in detail: the statutory protection
of the refugee based on the 1951 Geneva Convention. At this point, remember to refer to the texts
mentioned in the first module in the section entitled Texts, Sources, and Institutions, namely
Article 1 of the Geneva Convention (which we will examine next), the New York Protocol annexed
to the Geneva Convention and the European Qualification Directive. You will also find these texts
referenced under the videos in this module and in Annex I, 3.

2
The Geneva Convention relating to the Status of Refugees was adopted in Geneva on July 28,
1951, by a Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons
convened by the UN pursuant to GA Resolution 429(V) of 14 December 1950.
Two remarks on the purpose and timing of this conference:
1° The initial purpose of the conference was to work on stateless persons: the Heimatlos, those
whom Hannah Arendt called the “outlaws” because of the connection between rights and
nationality. Quickly, however, the focus shifted to the protection of refugees. A separate
convention pertaining to stateless persons was later adopted: the New York Convention
on Stateless Persons of September 28, 1954.
2° In regard to timing, remember that the Second World War (WWII) had just ended and the
1948 UDHR had just been adopted. This Declaration was referred to in the first iteration
of the Geneva Convention. The main idea in this post-war era was “never again.” Never
again should the world experience such extreme human rights violations.

The first limitation found in the Geneva Convention is in time.

First, Art. 1 confirms the old refugee statuses that were granted before WWII and which
correspond, in historical terms, to the first two periods (documents and group). The texts referred
to are the 1926 and 1928 arrangements and the 1933 and 1938 Conventions.
Secondly, Art. 1 gives a definition of refugee which refers to events “occurring before 1 January
1951.” The idea was to settle the past, hoping that there would be no more refugees in the future.
Unfortunately, things did not go as planned.
The New York Protocol of 31 January 1967 lifted this limit, “Considering that it is desirable
that equal status should be enjoyed by all refugees covered by the definition in the [Geneva]
Convention irrespective of the dateline 1 January 1951.”
This is very important. This small Protocol deletes a few words and the definition of refugee
becomes a legal, general, and abstract definition which is valid irrespective to time: past, present,
and future. Many States did not realize that, in doing so, they were signing a kind of blank check.

The refugee definition in the Geneva Convention had a second limitation, in space. According to
Art. 1(B), at the time of ratification, each State could choose to apply the words “events occurring
before 1 January 1951” either to events which occurred “in Europe” or, more broadly, “in
Europe or elsewhere.” In principle, the New York Protocol also removed this geographical
limitation, although some States decided to keep it.

3
Nearly 150 States (146) are party to the Geneva Convention and the New York Protocol. For
example, South Sudan ratified the Convention on December 10, 2018. It is one of the most ratified
international conventions in the world. There are still some important countries, such as India,
which have not ratified it. Most countries have removed the geographical limit. Some countries,
such as Turkey, have maintained it. This is an important point for the application of the principle
of non-refoulement that we discussed in Module 2.

Since these limitations in time and space are no longer relevant in most States, let’s have a look at
the content. Three elements in the Geneva Convention are central:
1° The principle of non-refoulement (Art. 33): This is the keystone of the system. Access to the
procedure for the recognition of refugee status is conditioned by access to a territory
(Module 2).
2° Refugee status (Art. 2–34): These are the rights granted to refugees. James Hathaway, in
The Rights of Refugees under International Law, examines all these rights in depth.
3° The definition of refugee (Art. 1): who is a refugee within the meaning of the Geneva
Convention? This is the subject of this module.

Who should be recognized as a refugee?

Article 1 of the Geneva Convention provides a three-part definition of refugee:
– Inclusion, letter A: who is included in the definition?
– Cessation, letter C: when does this protection cease?
– Exclusion, letters D, E and F: who is excluded from this protection?
Let’s focus first on inclusion: who is a refugee under the Geneva Convention? Article 1 of the
Geneva Convention states:

Article 1
Definition of the term “refugee”
A. For the purposes of the present Convention, the term “refugee” shall apply to any person
The words “shall apply” are already important. They show us that one does not grant refugee status,
but that one recognizes this quality which applies by right, i.e., it is a declaratory decision of right
and not a constitutive decision of right.

who […] owing to well-founded fear of being persecuted for reasons of race, religion, nationality,
membership of a particular social group or political opinion, is outside the country of his
nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection
of that country; or who, not having a nationality and being outside the country of his former
4
 habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to
return to it.
In the case of a person who has more than one nationality, the term “the country of his
nationality” shall mean each of the countries of which he is a national, and a person shall not
be deemed to be lacking the protection of the country of his nationality if, without any valid
reason based on well-founded fear, he has not availed himself of the protection of one of the
countries of which he is a national.
The only objective element in this definition is found in the words “is outside the country.”
This means that the Geneva Convention does not cover the situation of internally displaced
persons (IDPs). The Convention only protects those who have crossed a border, who have left
their country of origin. The word “fugitive” emphasizes this idea of “fleeing,” like vluchteling in
Dutch or Fluchtling in German. Admittedly, everyone has the right to leave their country, including
their own (Art. 12.2 ICCPR), but it is not always easy to take up one’s “pilgrim’s staff” and flee.
According to the Convention, the “country of origin” of a person means either the “country of his
nationality” or, for the stateless person, the “country of his former habitual residence.” A stateless
person can be recognized as a refugee.
In cases of multiple nationality, the Convention specifies that “a person shall not be deemed to be
lacking the protection of the country of his nationality if, without any valid reason based on well-
founded fear, he has not availed himself of the protection of one of the countries of which he is a
national.” In other words, the national protection of each country of nationality takes precedence
over international protection. This already shows that international refugee protection is a
“surrogate or substitute protection” (Ward) in the absence of national human rights protection.

Let us continue our analysis of the definition of refugee. Apart from the sole objective criterion “is
outside the country,” the definition of refugee enshrined in the Geneva Convention contains only
subjective elements: a refugee is “any person […] owing to a well-founded fear of being
persecuted.”
Well-founded fear of being persecuted. These words, which are at the heart of the definition,
show us that the definition is subjective. It must be interpreted according to the protection
objective pursued. This is the classic teleological interpretation which does not disregard literal and
historical interpretations but will complement them. This means, as we will see in the case law
extracts below, that:
1. We should regard the Geneva Convention as a living instrument subject to an evolving
interpretation.

It is […] plain that the Convention must be seen as a living instrument

in the sense that while its meaning does not change over time, its application will. I would agree
with the observation [that] unless it [the Convention] is seen as a living thing, adopted by

5
 civilised countries for a humanitarian end which is constant in motive but mutable in form, the
Convention will eventually become an anachronism.1
2. The Convention includes concepts, such as persecution, which are themselves evolving.
For example, according to an Australian court:

Because the Convention is universal, it does not speak only of the grounds of persecution that
have been most familiar to Western countries. […] [I]n other societies, and in modern times,
different cultural norms and social imperatives may give rise to different sources of persecution.
[…]
The concept is not a static one. Nor is it one fixed by historical appreciation.2
3. A decision should include a structured rationale. The judge will have to reason step by step,
in a structured way.

Experience shows that adjucators and tribunals give better reasoned and more lucid decisions
if they go step by step, rather than follow a recital of the facts and arguments with a single
laconic statement which others then have to unpick, deducing or guessing at its elements rather
than reading them off the page.3
A case law decision which states: “this person is not recognized as a refugee because he or she does
not have a well-founded fear of persecution” is not a reasoned decision. It is a truism. It is self-
evident: if the person does not have a well-founded fear of persecution, since that is the definition,
that person cannot be recognized as a refugee. But the real question is: what are the reasons for
which this person does not have a well-founded fear of persecution?
Let’s draw a parallel to another area of law, such as civil liability in the case of a traffic accident: it
is not enough to say that Mr. X should not compensate Mr. Y because he is not responsible for the
accident. The judge must give reasons why Mr. X is or is not responsible for the accident.
Similarly, reasons must be given to justify the notion of fear of persecution. In the 1990s, in a
research book, we analyzed about 2,000 decisions from 15 countries, and we noticed a lack of due
motivation.4 Since then, several doctrinal works by James Hathaway and Guy Goodwill-Gill have
made it possible to further analyze this definition of refugee.
Texts such as the EU Qualification Directive (Directive 2011/95) provide precise elements for
interpreting the refugee definition. Likewise, we now have a worldwide access to case law, notably
from the Refworld site of the UNHCR. As a result, we can attempt a more structured analysis of
the definition of refugee per the Geneva Convention.
To structure the definition in the best possible way, we will use a Three-Scale Theory. First, we
examine separately the three central elements that are at the heart of the definition: well-founded
fear of persecution.

1 UKHL, Sepet and Bulbul v. SSHD, 2003, Opinions of the Lords of appeal for judgment, § 6.
2 Australian High Court Lexis 4, Applicant A & Anor v. MIEA, 1997, § 5.
3 EWCA Civ. 74, Svazas v. SSHD, 2002, § 30.
4 J.-Y. Carlier et al., Who is a Refugee?

6
For each of these three elements, a scale is used:
1. What is meant by “persecution?” What level of infringement of fundamental rights should
be achieved?
2. What is meant by “fear” of persecution? What level of risk should be considered?
3. What is meant by “well-founded” fear of persecution? What level of proof is required?
Taken together, these three scales, will give us, in a Three-Scale Theory, a comprehensive approach
(or holistic approach). After a separate and systematic examination of each element of the refugee
definition, we will be able to determine, in law, whether there is a well-founded fear of persecution
that would allow the person to be included in the refugee definition under the Geneva Convention.
Let us first focus on the first central word: persecution.

UK House of Lords, Sepet and Bulbul v. SSHD, 2003, Opinions of the Lords of appeal for judgment,
§ 6: “It is […] plain that the Convention must be seen as a living instrument in the sense that
while its meaning does not change over time, its application will. I would agree with the observation
[that] unless it [the Convention] is seen as a living thing, adopted by civilised countries for a
humanitarian end which is constant in motive but mutable in form, the Convention will eventually
become an anachronism.”
Australian High Court Lexis 4, Applicant A & Anor v. MIEA, 1997, § 5: “Because the Convention
is universal, it does not speak only of the grounds of persecution that have been most familiar to
Western countries. […] [I]n other societies, and in modern times, different cultural norms and
social imperatives may give rise to different sources of persecution. […] The concept is not a static
one. Nor is it one fixed by historical appreciation.”
EWCA Civ. 74, Svazas v. SSHD, 2002, § 30: “Experience shows that adjucators and tribunals give
better reasoned and more lucid decisions if they go step by step, rather than follow a recital of the
facts and arguments with a single laconic statement which others then have to unpick, deducing or
guessing at its elements rather than reading them off the page.”

There is no definition of the word “persecution” in the Geneva Convention. However, according
to the Cambridge Dictionary, persecution is “unfair or cruel treatment over a long period of time
because of race, religion, or political beliefs.”
Looking at other texts, the use of the word persecution, and even more so its definition, is rare.
However, in international law texts the term “persecution” can be found, in particular, in
international criminal law although it is aimed more at persecutors than the persecuted.
The Rome Statute of the International Criminal Court (Rome, 17 July 1998) states that:

“Persecution” means the intentional and severe deprivation of fundamental rights contrary to
international law by reason of the identity of the group or collectivity.
7
Two remarks:
1° “Severe deprivation of fundamental rights” corresponds to the concept of persecution in
the Geneva Convention. Like in international criminal law, a serious level of violation of
human rights is required in refugee law.
2° This definition refers to the “intentional” deprivation of fundamental rights. This
intentional element is required in the criminal conviction of a persecutor. But is it necessary
in the Geneva Convention? There is a difference here between punishing a guilty party and
protecting a victim against serious violations of their fundamental rights.
This reasoning can be supported by the decision Kupreškić of the International Criminal Tribunal
for the former Yugoslavia (§ 589):

In these bodies of law [international refugee and human rights law] the central determination
to be made is whether the person claiming refugee status or likely to be expelled or deported has
a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of
a particular social group or political opinion.” […]
In addition, the intent of the persecutor is not relevant. The result is that the net
of “persecution” is cast much wider than is legally justified for the purposes of imposing
individual criminal responsibility.
In this decision, the Tribunal draws a parallel between international criminal law and refugee law,
and states that in refugee law, the intention of the persecutor is not relevant. Through this definition
of persecution in international criminal law, and by setting aside the element of intent, we can
define persecution in the Refugee Geneva Convention, as a serious violation of fundamental
human rights.

Before we examine persecution, let us first look at its personal scope. Who is the subject and who
is the perpetrator?
The question, “who is the subject of persecution?” is easy and not frequently debated. It may be
the person who seeks protection. It may also be relatives who have been persecuted in such a way
that the person may have a well-founded fear of future persecution. This shows that the definition
will have to be approached in a comprehensive way, the subject of persecution (scale 1) being in
this case linked to the examination of risk (scale 2).
The question of the persecutor, the agent of persecution, the perpetrator, was much more debated:
who persecuted or shall persecute the applicant?
First, persecution may come from an agent of the State, a public servant. This is the most typical
hypothesis: refugees persecuted by the authorities of their country.
Second, the persecution could be carried out by non-State agents, or private actors.
In that case, there are two theories: theory of responsibility and theory of protection.
The first is a strict interpretation and considers that it is necessary to examine whether the State of
origin is responsible for the persecution. This is the theory of responsibility, illustrated by the
decision of the French Council of State Dankha (1983), which examines whether private
8
persecution has been (or will be) “tolerated or encouraged” by the State. However, if the State did
not tolerate or encourage such private persecution, such a situation will not fall within the scope
of the Geneva Convention.
The second theory is a broader interpretation that examines whether the State can protect against
private persecution. This is the theory of protection, exemplified by the Ward case of the Supreme
Court of Canada (1993). The Court examines whether the state of origin can protect its nationals
from persecution by any perpetrator.
The Ward case concerned an Irish national from Northern Ireland who belonged to an armed group
claiming the independence of Northern Ireland. At one point, this group took civilian hostages.
Their demands were not accepted by the British authorities and they announced that they would
execute the hostages. Instead, Ward, who was in charge of guarding these hostages, set them free,
fled with them and surrendered to the authorities. At the end of a long prison sentence, he feared
persecution from the members of his former group, who wanted revenge. Since he could not be
protected in Ireland, he was sent to Canada where he could apply for refugee status. What are the
lessons of this case? The persecution that Ward feared was neither tolerated nor encouraged by the
State, who fought against these armed groups. Therefore, under a strict interpretation of State
responsibility, this persecution does not fall within the scope of the Geneva Convention. In Ward,
the Supreme Court held that the central issue was not who persecuted Ward but whether the State
was able to protect Ward from such persecution. Writing for the Court, the Honorable Justice La
Foret stated: “I find that State complicity is not a necessary component of persecution… State
inability to protect the claimant creates a presumption that the fear is well-founded” (§ 726).
This second theory, the protection theory, is correct. On the one hand, when read literally, the
Geneva Convention does not provide any details as to who is persecuting Ward. On the other
hand, in the context of a teleological interpretation of the text, we should remember the objective
of the Geneva Convention: international protection is a substitute protection in the absence of
national protection. Consequently, the lack of State protection against private persecution should
be grounds for considering international protection. This is a result of both the negative and
positive obligations of the State to protect human rights.
This theory of protection is found in Art. 6(c) of the EU Qualification Directive, which states that
actors of persecution may be “non-State actors, if it can be demonstrated that the actors (of
protection) are unable or unwilling to provide protection against persecution”.
Generally, this theory of protection is applied. States will consider private persecution if the State
of origin is unable to protect the person seeking asylum. However, this may not always be the case.
Here is an example that brings us closer to the Danaids of Aeschylus mentioned at the beginning
of the course: “It must be noted that the facts described by the person concerned cannot, as set
out, be linked to one of the criteria laid down in article 1, paragraph A(2) of the Geneva Convention
of 28 July 1951. The interested party has not raised any problem of any kind with the Nigerian authorities.”
This decision concerned a young woman named Semira Adamu who was fleeing a forced marriage
in her home country, namely Nigeria. She was denied refugee status on the grounds that the
elements given did not sufficiently relate to the Geneva Convention. This could be a question of
grounds of persecution (infra) and of proof (scale 2). But the court added that: “The interested
party has not raised any problem of any kind with the Nigerian authorities.” The decision is not
looking at whether the Nigerian authorities were able to protect the person (theory of protection),
but whether there is a responsibility on the part of the Nigerian authorities for the feared
persecution. This is the strict responsibility approach, not the broad approach, of the theory of
protection. It can have important consequences. This decision was taken by the General
9
 Commissariat for Refugees and Stateless Persons in Belgium (CGRA, Semira Adamu, 1998). This
decision was not appealed, which would have been possible. This decision led to the removal of
Semira Adamu from the territory. Very sadly, during her removal, Semira Adamu was suffocated
with a pillow and died. This confirms the importance of a teleological interpretation of the Geneva
Convention and the notion of persecution.

Persecution is an act that seriously violates fundamental human rights. Acts of persecution are
highly variable and diverse. They can be material and physical, such as torture or detention. They
can be mental and psychological, such as harassment. The Geneva Convention lists, in a restrictive
manner, five grounds for persecution.
We have established that all types of persecution must be considered, regardless of the perpetrator,
if the State is unable to protect. Let’s have a look now at the material scope of persecution. What
exactly is persecution? Based on our definition of acts that seriously violate fundamental human
rights, we now must specify the nature of these acts, their motives, and their degree of severity.

First, the nature of these acts can vary. Acts of persecution can be physical violence, such as
detention or torture. They can also be emotional or psychological abuse. This is specified in
Article 9 of the European Qualification Directive. It refers to physical or mental violence, including
sexual violence, and namely genital mutilation, as well as legal, administrative, police and judicial
violence.
For example, the Supreme Court of Bulgaria held that a judicial decision against persons sentenced to
flogging or stoning for adultery in Iran constituted “an inadmissible violation of human dignity.”
As we have just seen, the nature of acts of persecution is diverse.

The Geneva Convention lists five grounds for acts of persecution: race, religion, nationality,
membership of a particular social group or political opinion. Persecution must be linked to one of
these five grounds. We should note that political opinion is only one of the grounds mentioned.
This should remove the term “political refugee” from our vocabulary because it restricts the
definition of refugee according to the Geneva Convention.

Art. 9 Qualification Directive:

1. acts of physical or mental violence, including acts of sexual violence. This includes
genital mutilation (FGM).
2. legal, administrative, police, and/or judicial measures which are in themselves
discriminatory or which are implemented in a discriminatory manner.
3. prosecution or punishment for refusal to perform military service.
4. acts of a gender-specific or child-specific nature.
5. …

10
See also UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, §§ 51–61.

Supreme Administrative Court of Bulgaria, 7 March 2011, Syedabas (Iran). Judicial or administrative
sanctions for adultery (flogging, stoning) “constitutes an inadmissible violation against the dignity of
the punished person.”
See also other examples in J.C. Hathaway and M. Foster, The Law of Refugee Status (Cambridge, CUP,
2005) 214 ff., 217 ff., 268 ff.

Persecution may be racially motivated in the eyes of the persecutor. Although we do not intend to
take a position on the legal value of the contested concept of race, it would be wrong to deny the
existence of persecution on the basis of race. The practice and the Qualification Directive give a
broad interpretation of this concept of race, which “shall, in particular, include considerations of
colour, descent, or membership of a particular ethnic group.”

Art. 10(a) Qualification Directive: “the concept of race shall include, in particular, considerations
of colour, descent or membership of a particular ethnic group.”
UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, §§ 68–70.

 Australia, Refugee Review Tribunal, 11 December 2012, Case No. 1213085. An Afghan man
of Hazara and Shia origin fears the Taliban who murdered his father: “Considering all of the
above, the Tribunal cannot be positively satisfied that the applicant will not be harmed for
reason of his race or religion in the reasonably foreseeable future in Afghanistan. The
country information above indicates that the central government and state agencies such as
the Afghan National police are not able or willing to provide protection to the applicant.”
 Belgium, CCE (Aliens Litigation Council), 14 July 2011, No. 64888. A Rwandan man was
forcibly recruited at the age of 15 by a Hutu militia: “The applicant’s fear can be analyzed as
a fear of being persecuted on account of his ‘Hutu’ ethnic origin, it being understood that
[…] ‘the concept of “race” includes, inter alia, considerations of colour, origin or
membership of a particular ethnic group.’ In the present case, the fact that the complainant
is of Hutu origin, from a so-called ‘mixed’ couple whose father is accused of genocide by the
‘Gacaca’ courts, that he is threatened by the occupants of the houses belonging to his father,
and that these occupants are representatives of the military and judicial authorities, that the
applicant had encountered problems with the authorities on the pretext that he had adopted
a racially discriminatory ideology and that he had been forcibly recruited did indeed constitute
persecution on grounds of race within the meaning of Article 1, Section A, § 2 of the
Geneva Convention of 28 July 1951.” (our translation)
Other examples are available in J.C. Hataway and M. Foster, The Law of Refugee Status (Cambridge,
CUP, 2005) 395 ff.

Freedom of religion is enshrined in the ICCPR (Art. 18) and the ECHR (Art. 9).
The concept of freedom of religion covers two aspects: “holding beliefs”, whether “theistic, non-
theistic or atheistic,” practicing or not. “Practicing” can be an intimate, private practice of one’s
religion, but also an external, public expression of one’s religion. In this respect, the CJEU decision

11
Y. and Z. is quite interesting (see the example below). The CJEU did not see any distinction between
forum externum (public practice) and forum internum (intimate, private practice).

Art. 10(b) Qualification Directive.

UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, §§ 71–73.
UNHCR, Guidelines on International Protection: “Religious Refugee Status Claims under
Article 1A(2) of the 1951 Convention and/or the 1967 Protocol Relating to the Status of
Refugees.”

Europe
 CJEU, Y and Z, 2012 (Pakistan, Ahmadiyya). The CJEU had to interpret the ground relating
to religion in the light of German case law, which distinguishes between, on the one hand,
the violation of the “core element” of freedom of religion, which falls within the scope of
persecution, and, on the other hand, other forms of violation of the expression of religion
which do not, such as forum externum, i.e., the public manifestation of faith. The Court
rejected this distinction between a “core element” of freedom of religion and its outward
manifestation. A person should therefore not have to refrain from expressing his or her
religion to avoid persecution. The examination is done “not on the basis of the particular
aspect of religious freedom that is being interfered with but on the basis of the nature of the
repression inflicted on the individual and its consequences,” i.e., according to the third
element of the definition of persecution, which is “the severity of the measures and sanctions
adopted or liable to be adopted against [that] person.”

National
 UK, Secretary of State for the Home Department v. HA (Article 3 – Refugee 15 – Adultery
– Punishment) Iran, CG [2003] UKIAT 00095, United Kingdom: Asylum and Immigration
Tribunal/Immigration Appellate Authority, 17 October 2003.
 New Zealand, Immigration and Protection Tribunal, BA, 2014 (Pakistan, Ahmadiyya). The
Tribunal recognized the refugee status of a Pakistani man belonging to the Ahmaddis
community, because he was persecuted for practicing his religion, which is repressed in
Pakistan. The Tribunal recognized that the applicant could not be required to exercise
discretion to avoid persecution because of his fundamental belief that his version of Islam is
not just a version of Islam, but the true version of Islam.
 Belgium, CCE (Aliens Litigation Council), 8 January 2015, No. 135.960 (Egypt, Copt). The
Council considered that, in view of the applicant’s particular profile and background and the
situation of Coptic Christians in Egypt, the applicant had sufficiently established that he had
reasons to fear persecution on account of his religion.
 Australia, Administrative Appeals Tribunal AATA Case No. 1417971, [2016] AATA 3319
(15 February 2016), Australia, 15 February 2016: On the basis of the evidence of the applicant
husband and wife and the independent country information, the Tribunal accepts that Local
Church members who come to the attention of the authorities in China are at risk of
detention, imprisonment and severe punishment including physical and mental abuse in an
effort to have them renounce their beliefs.
Other examples are available in J.C. Hathaway and M. Foster, The Law of Refugee Status (Cambridge,
CUP, 2005) 399 ff.

12
Beyond the mere possession or lack of citizenship, the notion of “nationality” covers, inter alia,
membership of a group united by its cultural, ethnic, or linguistic identity, by its common
geographical or political origins or by its relationship with the population of another State” (Art.
48/3(4)(c) of the Aliens Law in Belgium).
In other words, nationality will often be confused, as an ethnic identity, with race or social group.

Art. 10(a) Qualification Directive.

UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, §§ 74–76.

 UK, Immigration and Asylum Chamber, 30 June 2011, ST Ethiopia v. Secretary of State for the Home
Department. An Ethiopian national was denied Ethiopian citizenship because of her Eritrean ethnic
origin. “Whether arbitrary deprivation of nationality amounts to persecution is a question of fact.
The same is true of the denial of the right of return as a national.” This denial of nationality was
considered by the Tribunal to be persecution within the meaning of the Geneva Convention.
 Australia, RRT Case No. 0808284, [2009] RRTA 454, Australia: Refugee Review Tribunal, 21 May
2009: Persecution for reason of Palestinian nationality: (…)“A lack of entitlement to education
has been accepted by the Federal Court as a possible component of systematic discrimination
amounting to persecution. It is clear that the accepted definition of persecution encompasses a
range of deprivation of interests that do not come close to threatening subsistence. We would
submit that the applicant’s exclusion from the education system in Kuwait is but one indicator of
discrimination amounting to persecution for reason of his (Palestinian) nationality.”
 Belgium, CCE, 5 May 2011, No. 60.960. Georgian men of Abkhazian origin were repeatedly
assaulted because of their minority background. “The facts being sufficiently established, the
complainants’ fear is to be understood as a fear of persecution on account of their nationality in
the sense of belonging to ‘a group united by its cultural, ethnic or linguistic identity.’”
Other examples are available in J.C. Hataway and M. Foster, The Law of Refugee Status (Cambridge,
CUP, 2005) 397 ff.

In establishing the grounds for persecution for membership of a particular social group, added at
the end of the Travaux préparatoires for the Geneva Convention, were certainly directed at social class
at the time.
The “social group” ground has been broadened and has become a kind of safety net to include,
within the material scope of persecution, new hypotheses not expressly provided for in the
Convention.
This is the case with gender-related persecution. The word sex, as a criterion of persecution, does
not appear in the Geneva Convention. However, persecution on the grounds of membership to a
certain social group will include persecution on the grounds of gender, or even on the grounds of
sexual orientation. This provides a safety net for an evolving interpretation of the concept of
persecution. That is not to say that every ground will fall within this category. Any particular
qualification, such as taxi driver or soccer player, will not necessarily fall within this notion of social
group. The concept will be clarified both in doctrine and in case law. In Ward, the Supreme Court
of Canada distinguishes three types of social groups.

13
The first type is the group defined by an innate or immutable characteristic, for example gender.
The second type is “a group whose members voluntarily associate with each other for reasons so
essential to their human dignity that they should not be compelled to renounce that association.”
It is with this definition that the Court classifies Ward’s group as having an essential voluntary
motive: the fight for independence. However, the Court found that this group could renounce the
use of violence in such a way that it would not constitute a social group. This raises the question:
Shouldn’t we consider this from the perspective of exclusion from protection because of the acts
committed? (infra, exclusion)
The third type is a group associated by a former voluntary status that is immutable because of its
historical permanence. This is, for example, social class as nobility, or social or religious castes.
Art. 10 Qualification Directive includes the same three categories as Ward (see references below).

Art. 10(d) Qualification Directive: a group is a certain social group, within the meaning of the
Geneva Convention, where, inter alia, its members share an innate characteristic or common roots
that cannot be altered, or a characteristic or belief that is so essential to identity or consciousness
that a person should not be required to renounce it (internal definition) and that group has an
identity of its own in the country in question because it is perceived to be different by the
surrounding society (external definition).

This provision sets out two definitions of “social group,” which should be cumulatively met, as the
use of the conjunction “and” demonstrates.
The first definition (internal) refers to the possession of a common characteristic essential to the
members of the group. This common characteristic may be innate or immutable, historical or
voluntary (caste) and/or essential (chosen cultural or sexual identity). Sometimes referred to as the
ejusdem generis approach, this definition corresponds to the one enshrined in Ward.
The second definition (external) refers to the perception of the group by its surrounding society.
Does the country of origin’s society consider that a group of those individuals constitute a distinct
group within it? The question here is no longer whether there is a common characteristic shared
by the members of the group (internal definition), but how the society of the country of origin
perceives its own divisions (external definition).
We can certainly see these as two sides of the same coin: the group feels like a group (internal
identity) and is perceived as such by society (external identification). However, it is not certain that
the two approaches must be combined, as the conjunction “and” suggests. A group of persons
who do not consider themselves as belonging to a group may be persecuted because they are seen
as a group by a part of society. Such a hypothesis should fall within the scope of persecution linked
to membership of a particular social group. This is in line with Art. 10(2) Qualification Directive,
which recognizes the possibility of imputing the motive of persecution.
This broad interpretation of the notion of “social group” does not have the consequence of
including any persecution not provided for in the grounds of the Geneva Convention. The social
group does not constitute a kind of catch-all ground for persecution, encompassing any ground of
persecution whatsoever. This would go against the will of the Contracting States as expressed in
the drafting of the Geneva Convention. The link, even alternatively, to the ground must be ensured,
14
in that the internal or external identification of the group must be a constituent element of the
persecution.

R. Grey and J. O’Donohue, “Gender-based Persecution as a Crime Against Humanity; The Road
Ahead” (2019) Journal of International Criminal Justice.
N. Laviolette, “Gender-Related Refugee Claims: Expanding the Scope of the Canadian Guidelines”
(2007) IJRL 169–214.
A. Middelburg and A. Balta, “Female Genital Mutilation/Cutting as a Ground for Asylum in
Europe” (2016) 28(3) IJRL 416–452.
T. Spijkerboer, Gender and Refugee Status (Ashgate, Aldershot, 2000).
UNHCR, Guidelines on International Protection: “Membership of a Social Group,” § 11.
UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, §§ 77–79.
UNHCR documents on: Gender-Related Persecution, 2002; Victims of Human Trafficking, 2006;
Sexual Orientation and/or Gender Identity, 2008; Female genital mutilation, 2009.

In Ward, the Supreme Court of Canada defines three categories of social groups:
1. groups defined by an innate, unchangeable characteristic (e.g., sex);
2. groups whose members voluntarily associate for reasons so fundamental to their
human dignity that they should not be forced to forsake the association; and,
3. groups associated by a former voluntary status, unalterable due to its historical
permanence (e.g., social caste or nobility).

Let us explore examples of the social groups of women, children, families and the LGBTQIA+
community.

Gender or sex is the ground for persecution in, inter alia, the following cases:
– Female genital mutilation (FGM)
– Forced marriages
– Domestic violence
– Honor-related violence
– Forced sterilization
– Human trafficking
– Sex slavery

15
Legislation

 Art. 60.1 Council of Europe Convention on Preventing and Combating Violence against
Women and Domestic Violence, 2011: “Parties shall take the necessary legislative or other
measures to ensure that gender-based violence against women may be recognized as a form
of persecution within the meaning of Article 1, A (2), of the 1951 Convention relating to
the Status of Refugees and as a form of serious harm giving rise to
complementary/subsidiary protection.”
 Convention on the Elimination of All Forms of Discrimination against Women, 1979.
 Art. 10 Qualification Directive, read in particular in the light of Art. 21 CFR.
Case law
International

 ICC, The Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, ICC-01/12-

01/18.
 Women’s Rights Committee, Yildirim v. Austria, 2007 (domestic violence).
 CAT, F.B. v. The Netherlands, 2015, finding a real risk of torture in a case of FGM (Guinea).
Europe

 ECtHR, N. v. Sweden, 2010 (Afghanistan, honor-related violence).

 ECtHR, Halimi v. Turkey, 2016 (in French) (Turkey, domestic violence).
 ECtHR, Izevbekhai and Others v. Ireland, 2011.
 ECtHR, Sow v. Belgium, 2016 (in French) (Guinea, FGM), § 62: “It is not disputed that
exposing an adult, against his will, or a child to female genital mutilation would constitute
ill-treatment contrary to Article 3 ECHR.”
National

 UK, House of Lords, Fornah, 2006 (Sierra Leone, FGM), § 86: “[T]he world has woken up
to the fact that women as a sex may be persecuted in ways which are different from the
ways in which men are persecuted and that they may be persecuted because of the inferior
status accorded to their gender in their home society.”
 Benin, Eligibility Committee, 22 November 2006, No. 496, V.A. (Ivory Coast, sexual
slavery).
 New Zealand, Refugee Appeal No. 76501: Refugee Status Appeals Authority, 19
November 2010 (Fiji): “[…] the Authority is satisfied that the appellant faces a real chance
of being persecuted because she remains at risk of serious harm at the hands of her violent
husband and state protection from such violence is not available at least in part because of
the ingrained social attitudes to women in the state of Fiji. The appropriate Convention
ground is therefore the appellant’s membership of a particular social group, namely
women.”
 Refugee Appeal Board Decision (Tanzania), South Africa: Refugee Appeal Board, 5
December 2011: “The Board is not convinced that the mere fact that the appellant is a
homosexual person and has suffered social discrimination means that he has been
persecuted. He has not been harassed to the extent that it can be seen as persecution. The
fact that there is a Penal Code which criminalizes sodomy does not mean that a homosexual
person is being persecuted.”
 Australia, RRT Case No. 1114191, [2012] RRTA 443, Refugee Review Tribunal, 22 May
2012: Somali: “[…] I consider that her membership of the particular social group of
‘women in Somalia’ is the essential and significant reason for the persecution which she
fears, as required by paragraph 91R(1)(a) of the Act. I further consider that the persecution
16
 which the applicant fears involves systematic and discriminatory conduct, as required by
paragraph 91R(1)(c), in that it is deliberate or intentional and involves her selective
harassment for a Convention reason.”
 Belgium, CCE, 19 July 2017, No. 189 882 (in French) (forced marriage), § 6.10: “Persons
of the same sex may be considered as forming a social group. The applicant has reasons to
fear persecution by reason of her membership in the social group of women.”

Children can be persecuted as a group in, inter alia, the following cases:
– Boys victim of forced recruitment (child soldiers)
– Child witches
– Girls victim of FGM or early marriage
– Children with mental illness
Legislation

 UNCRC, 1989.
 Art. 9(2) Qualification Directive: “acts of a gender-specific or child-specific nature,” read
in the light of article 24 CFR.
Case Law
International

 CRC, 25 January 2018, I.A.M. v. Denmark (Somalia, FGM).

National

 Canada, Supreme Court, M.C.I. v. Oh, Mi Sook (F.C., No. IMM-5048-08), Pinard, 22 May
2009, social group of minors, that of “children of the mentally ill.”
 Canada, Federal Court of Appeal, Cheung v. Canada (Minister of Employment and Immigration),
[1993] 2 F.C. 314, 1 April 1993. The appellant’s second child can personally claim refugee
status under the Convention. She is a member of a particular social group, namely the group
of second children, and as such would be subject to such serious and concerted
discrimination as to amount to persecution (China, context of forced sterilization for the
one-child policy).
 UK, AA (unattended children) Afghanistan v. Secretary of State for the Home Department, CG
[2012] UKUT 00016 (IAC), Upper Tribunal (Immigration and Asylum Chamber), 6 January
2012: unattached children returned to Afghanistan, depending upon their individual
circumstances, and the location to which they are returned, may be exposed to risk of
serious harm, inter alia from indiscriminate violence, forced recruitment, sexual violence,
trafficking and a lack of adequate arrangements for child protection.
 Belgium, CCE, 10 November 2015, No. 156 326 (in French) (Guinea, FGM).
Further reading
UNHCR, A Framework for the Protection of Children, 2011.
CRC, General Comments on the Rights of the Child.

17
Family (by virtue of kinship) is a ground for persecution in, inter alia, the following cases:
– Family blood feud
– Violence because of family ties: wife, brothers
Legislation

 Art. 10 Qualification Directive.

Case law
National

 Canada, Federal Court, Tomov Nikolay Haralam v. M.C.I. (IMM-10058-04), Mosley, 9

November 2005; 2005 FC 1527. The applicant, a Bulgarian citizen, applied for asylum on
the basis of his belonging to the Roma family of his de facto spouse and the assault he
suffered in the presence of his spouse.
 UK, AA (unattended children) Afghanistan v. Secretary of State for the Home Department, CG
[2012] UKUT 00016 (IAC), Upper Tribunal (Immigration and Asylum Chamber), 6 January
2012. “Given the appellant’s well-founded fear of being persecuted is based upon his anti-
Taliban political opinion, whether actual, or imputed by reason of family membership; that
he may have attained the age of majority does not, in the circumstances of his case, affect
his entitlement to recognition as a refugee and the consequent grant of status.”
 Belgium, CCE, 9 May 2019, No. 220 960 (Albania). “The applicant’s fear must be analyzed
as a fear of being exposed to persecution by reason of his membership of the social group
consisting of his family, whose members are particularly targeted because of their
involvement in a blood feud.”
Further reading
UNHCR Position on claims for refugee status under the 1951 Convention relating to the Status of
Refugees based on a fear of persecution due to an individual’s membership of a family or clan
engaged in a blood feud, 17 March 2006.

Sexual orientation is the ground for persecution in, inter alia, the following cases:
– Criminal prosecutions for homosexuality
– Harassment and violence
Legislation

 Art. 10 Qualification Directive: “Depending on the circumstances in the country of origin,

a particular social group might include a group based on a common characteristic of sexual
orientation. Sexual orientation cannot be understood to include acts considered to be
criminal in accordance with national law of the Member States. Gender related aspects,
including gender identity, shall be given due consideration for the purposes of determining
membership of a particular social group or identifying a characteristic of such a group.”
Case Law
International

 CAT, 7 July 2011, Mondal v. Sweden.

18
  CJEU, X, Y and Z, 2013, §§ 46 and 48: “a person’s sexual orientation is a characteristic so
fundamental to his identity that he should not be forced to renounce it.” In addition, “the
existence of criminal laws […] which specifically target homosexuals, supports a finding
that those persons form a separate group which is perceived by the surrounding society as
being different.”
 CJEU, A., B. and C., 2014, § 72: the Court emphasized the need to respect the privacy of
the persons concerned when examining these questions, considering that Art. 4
Qualification Directive, read in the light of Art. 1 CFR (Human Dignity), precludes “the
acceptance by those authorities of evidence such as the performance by the applicant for
asylum concerned of homosexual acts, his submission to ‘tests’ […] or, yet, the production
by him of films.”
National

 USA, United States Board of Immigration Appeals, Matter of M-E-V-G-, 7 February 2014:
“[…] Group determinations are made on a case-by-case basis. For example, a factual
scenario in which gangs are targeting homosexuals may support a particular social group
claim. While persecution on account of a protected ground cannot be inferred merely
from acts of random violence and the existence of civil strife, it is clear that persecution on
account of a protected ground may occur during periods of civil strife if the victim is
targeted on account of a protected ground.”
 France, CRR, 21 October 2005, M.K. (in French).
Further reading
A. Güler, M. Shevtsova and D. Venturi (eds), LGBTI Asylum Seekers and Refugees from a Legal and
Political Perspective. Persecution, Asylum and Integration (Berlin, Springer, 2019).
J. Hathaway and J. Pobjoy, “Queer Cases Make Bad Law” (2011) 44(2) N.Y.U. J. Int’l L. & Pol.
315-388.
J. Weßels, “Working paper series No. 73 Sexual orientation in Refugee Status Determination”(April
2011) Refugee studies Centre, Oxford.
Other examples are available in J.C. Hataway and M. Foster, The Law of Refugee Status (Cambridge,
CUP, 2005) 442 ff.
In French
L. Leboeuf, “Droit européen de l’asile et homosexualité” (2014) 176 Revue du droit des étrangers 3-12.

Political opinion is a ground traditionally associated with refugees. Keep in mind that this is only
one of the five grounds. Consequently, use of the term “political refugee” should be proscribed in
law as it implies a restrictive notion of refugee. Political opinion is only one of the five grounds,
the last one. Political opinion may be expressed by a person with a well-founded fear of persecution
or may be imputed to them by a persecutor. The EU Qualification Directive states that

the concept of political opinion shall, in particular, include the holding of an opinion, thought
or belief on a matter related to the potential actors of persecution […] and to their policies or
methods, whether or not that opinion, thought or belief has been acted upon by the applicant.
In other words, one can have an active political opinion: “I am a labor activist.” “I am a political
opponent.” One can also have a passive opinion: “I do not agree to hold opinions that are imposed

19
on me.” The debate can be even more nuanced. It also appears in the 1993 Supreme Court of
Canada’s Ward case, where the Court elaborated on the notion of imputed, attributed political
opinion (see examples below). The Court states that:

The political opinions that give rise to the persecution need not necessarily be rightly attributed
to the claimants.
References

 Art. 10(e) Qualification Directive: “the concept of political opinion shall, in particular,
include the holding of an opinion, thought or belief on a matter related to the potential
actors of persecution […] and to their policies or methods, whether or not that opinion,
thought or belief has been acted upon by the applicant.”
 UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, §§ 80–
86.
Examples
 Canada, Supreme Court, Ward, 1993. Ward was not considered to fear persecution on the basis of
his membership in a particular social group. The Court then examined whether Ward had a well-
founded fear of persecution on the basis of his political opinion. When asked whether he held a
political opinion contrary to the members of his group, Ward replied: “No, I still agree with them,
I still agree that we should claim the independence of our country.” Ward did not hold a political
opinion contrary to his persecutor, such that he did not have a well-founded fear of persecution
under the Geneva Convention on the ground of his political opinion. The Supreme Court then
asked whether the persecutor, the former members of Ward’s group, will not attribute a political
opinion to him: “You are no longer our friend. You are our enemy. We see you as having a contrary
opinion, even though you don’t express an opinion contrary to ours.” The Supreme Court noted
that “The political opinion ascribed to the claimant and for which he or she fears persecution need
not necessarily conform to the claimant’s true beliefs,” enshrining the notion of attributed or
imputed political opinion.
 UK, Upper Tribunal, Immigration and Asylum Chamber, MSM, Somalia v. Secretary of State for the
Home Department, [2015] UKUT 00413 (IAC), 30 July 2015. The forced removal of the applicant, a
journalist, from the United Kingdom to Somalia, his country of origin, would expose him to a real
risk of persecution on the ground of real or imputed political opinion and/or a violation of his
rights under Art. 2 and 3 ECHR.
 Belgium, CCE., 29 May 2019, No. 222 182. It appears from the applicant’s statements that the
threats she is fleeing, and which emanate from the authorities originate from the nature of her
activities on behalf of a party. These activities are apprehended by the agent of persecution, whom
she rightly fears, as a political opponent. Her fear is therefore analyzed as a fear of being persecuted
because of a political opinion.
Other examples are available in J.C. Hataway and M. Foster, The Law of Refugee Status (Cambridge, CUP,
2005) 405 ff.

Can this notion of imputation, of attributing a ground, work for reasons other than political
opinion? Yes, in the case of social groups, it is easy to imagine, for example, a particular sexual
orientation being imputed to someone. The same thing goes for religion: a particular religion could
be attributed to someone even if they do not belong to it. This also works with race and nationality,
imputing a certain ethnic group to someone when they do not belong to that group (see examples
below on the origin of the 1951 Geneva Convention after the Second World War and the
persecution of Jews).

20
 Art. 10(2) Qualification Directive: “When assessing if an applicant has a well-founded fear
of being persecuted it is immaterial whether the applicant actually possesses [one of the
five grounds] which attracts the persecution, provided that such a characteristic is attributed
to the applicant by the actor of persecution.”
 Canada, Supreme Court, Ward, 1993: “The political opinion that lies at the root of the
persecution, therefore, need not necessarily be correctly attributed to the claimant.” In an
obiter dictum, the Court added that “Similar considerations would seem to apply to other
bases of persecution.”
 UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, § 80.

The very origin of the 1951 Geneva Convention was a reaction to the Shoah, the Nazis’ attempt to
exterminate the Jewish population before and during the Second World War. Some survivors later
testified that, before the persecutions, they did not consider themselves primarily as Jews, but as
Germans, Italians, Poles, etc. They discovered themselves as Jews through the eye of the persecutor
who identified them as such. Jews did not decide to put on a yellow star, it was the persecutor who
imposed it. This is an example of the interpretation of the motives (nexus) of persecution by
imputation. This example is unusual as it does not concern imputed political opinion, but the
imputation of other grounds of the Geneva Convention, such as race (being Jewish is not a race but
the persecutor imputed it as a sub-race), religion, or even nationality in the sense of ethnicity, again
from the persecutor’s point of view, or membership of a social group.

In the 1970s, a young soccer club official from the Chilean national team traveled to Canada for an
international competition. When interviewed by the sports media, he said what he had witnessed in the
soccer stadium in Santiago de Chile when General Pinochet took power in 1973. He described the
torture and ill-treatment caused by the authorities in that stadium. Aware of the risks he faced if he
returned to Chile, he was advised to apply for refugee status in Canada. Could he be recognized as a
refugee under the Geneva Convention? If there was a serious risk of persecution, was this persecution
related to one of the five grounds of the Convention? It cannot be race, religion or nationality.
Although imaginable, the social group ground does not stand up to rigorous analysis. He does not
belong to a social group: being a soccer player is not an immutable, innate, or otherwise unalterable
characteristic. In addition, it does not fit the “social perception” approach as a member of a group
sharing a common characteristic that would make that group recognizable or put it on the fringes of
society. Finally, he does not a priori meet the political opinion ground. Indeed, not only is this young
footballer not affiliated with any political party, but when questioned to give his opinion on the actions
of General Pinochet, he said: “I don’t know, some people think it’s good, that we should eliminate the
communists, others think it’s bad.”
A quick decision would consider that “the person concerned has no political opinion.” As a result, he
cannot be recognized as a refugee within the meaning of the Geneva Convention. A more precise
examination, considering the double meaning of the nexus between motive and persecution, would
affirm that there is a risk of persecution by imputation of a political opinion. The persecutor, the
Chilean authorities, General Pinochet’s regime, will attribute a political opinion to him because of his

21
 statements to the press: “You are not my friend; therefore you are my enemy.” He would be recognized
as a refugee on this basis.1

The notion of imputation raises a more general question about the nature of the link between
persecution and one of the five “grounds.” The Geneva Convention, unlike the EU Qualification
Directive, does not speak of “grounds” for persecution but fear of persecution “for reasons of”
the five elements. It thus affirms the need for a link, rather than strict causality, between persecution
and the five elements. This link must exist but cannot be interpreted restrictively either in its
personal or material scope. In the personal scope, there may be a link either with the persecuted
one (e.g., an expressed opinion), with the persecutor (an imputed opinion), or with the potential
protector (a lack of protection because of an opinion). In the material scope, the link is not that of
a determining cause, but that of a contributory cause. More than strict causal links, the five grounds
should be, in the wording of private international law, connecting factors which make it possible
to establish a proximity between facts, acts or abstentions and the categories of persecution falling
within the scope of the Geneva Convention.
Here are two examples. First is a normative example in Art. 9(3) Qualification Directive, which
states that there must be a link between the grounds and “acts of persecution […] or the absence
of protection against such acts.” A second example is found in case law. A New Zealand decision
states: “the nexus between the convention and the persecution can be provided either by the serious
harm limb or by the failure of the state protection limb.” Either the person persecuted or
persecutor, and the failure of the State protection limb to protect the personal scope of the
persecution. Similarly, from the point of view of the material scope of persecution, it is not so
much a motive in the sense of a direct determining cause of persecution but a motive in the sense
of a contributory cause of persecution. This is somewhere along the lines of what is referred to in
private international law as the logic of proximity, of connecting factors, between a situation and
circumstances or territorial locations or personal identities. It is in this sense that the notion of
persecution must be analyzed in relation with one of the five grounds. It is a nexus, a personal or
material link, but not necessarily a significant, determining cause. Therefore, we should always
consider the nexus from the persecuted person’s (i.e., the applicant’s) perspective, but also from the
persecutor’s (i.e., the imputator’s) perspective.

Art. 10(2) Qualification Directive.

 New Zealand, Refugee Status Appeals Authority, 16 August 2000, No. 714227/99, § 112:
“The nexus between the Convention and the persecution can be provided either by the
serious harm limb or by the failure of the State protection limb.”

1 Case based on the decision of the Federal Court of Appeal of Canada in Astudillo v. Canada, 1979, cited by
J. Hathaway, The Law of Refugee Status (Cambridge, CUP, 2005) 154, note 135.
22
Professor James C. Hathaway of the University of Michigan has organized various seminars on
issues of interpretation of refugee law. These doctrinal seminars result in thematic guidelines.
Among these, see the “Michigan Guidelines on Nexus” (2002) I.J.R.L. 211 and (2015) 37/1
Michigan Journal of International Law (on the concept of imputation) and The Michigan Guidelines on the
International Protection of Refugees (2019).

After examining the various forms of persecution, and the contributory link between persecution
and one of the five grounds of the Geneva Convention, let’s turn to the severity (seriousness) of
the acts of persecution.
Let’s imagine a scale. What is the level of severity (seriousness) of the acts and violations of
fundamental rights required to be recognized as a refugee under the Geneva Convention? What is
the level of denial of fundamental rights required for “persecution?” It would be a matter of
introducing a certain hierarchy within human rights, in the form of a qualitative level and a
quantitative level in the violation of human rights.
At a qualitative level, this hierarchy within human rights would mean that some human rights are
more fundamental than others, which is debatable. The fact remains that some human rights are
described as non-derogable rights:
– right to life;
– prohibition of torture and inhuman and degrading treatment;
– prohibition of slavery; and
– legality of any conviction (nulla pœna sine lege).
However, this must be put into perspective. On the one hand, the list of non-derogable rights may
vary from one instrument to another; it is more restricted in the ECHR (Art. 15) than in the ICCPR
(Art. 4.3, which adds in particular freedom of expression, Art. 18).
On the other hand, although they are generally absolute, the content of these rights evolves over
time. As the ECtHR has said, in relation to persecution, “certain acts which were classified in the
past as ‘inhuman and degrading treatment’ as opposed to ‘torture’ could be classified differently in
future” because of the “increasingly high standard being required in the area of the protection of
human rights and fundamental liberties” (ECtHR, 28 July 1999, Selmouni v. France, § 101).
At a quantitative level, the seriousness may also result from the repetition of measures or acts
which, taken separately, would be less serious. This is indicated by the EU Qualification Directive,
which refers to an act that is “sufficiently serious by its nature or repetition” or that is “an
accumulation of various measures” (Art. 9(1)(a) and (b)).
In any event, the seriousness of an act, or a set of acts, is assessed according to the concrete
consequences for the victim, considering the victim’s particular situation and specific
vulnerabilities.
Two classic instruments for measuring the seriousness of acts violating human rights are
discrimination and proportionality.
23
Often persecution is directed at a certain category of people who are therefore discriminated
against. But is discrimination a necessary condition for persecution? Yes and no. It can be a
sufficient condition when there are systematic acts against a race, ethnic group, religion, or social
group of persons. This is called group persecution, which gives a serious presumption—although
perhaps a rebuttable one—that this discrimination leads to persecution of that group. But
persecution can also occur without discrimination. Let’s take an extreme example: a dictator who
kills and tortures everybody indiscriminately. This does not mean that there is no persecution. The
decisive criterion for the seriousness of the violation of fundamental rights will be proportionality.

This principle of proportionality has become classic, particularly in the field of human rights.
Schematically, it can be broken down into a two-stage reasoning process.

Principle of proportionality
 Legitimate aim
 Suitable measure
o Efficient (adequate)
o Necessary (interchangeability)

First, does the measure pursue a legitimate aim? In other words: does the act feared by a person
and which infringes on their fundamental rights pursue a legitimate aim?
If so, we should move on to a second step in the analysis. Are the means used to achieve that
legitimate objective proportionate?
Two classic tests are used: efficiency and necessity.
Efficiency: is this measure effective in achieving the legitimate objective; in other words, is it
adequate?
If so, the second test, necessity, must also be examined: is the measure necessary to achieve the
legitimate objective? In other words, is there interchangeability, is there another, similarly effective,
measure that can achieve the same legitimate objective without infringing on the fundamental rights
concerned?
This principle of proportionality is analogous to a balancing test. It allows for a more precise
assessment, closer to the reality of a situation, of the level of seriousness of the infringement on
fundamental rights.

Forced sterilization of Chinese women. There was a time when China tried to combat overpopulation
with a “one child policy”: no more than one child per couple. As a result, women were at risk of
forced sterilization if they tried to have more than one child. Some women claimed refugee status in
Australia, New Zealand, Canada, and the United States on this basis. Does this persecution reach the
level of violation of fundamental human rights, the level of severity required? Let’s analyze this
situation in terms of the principle of proportionality. First question: is this measure pursuing a

24
 legitimate objective? It could be debated, but we can accept that, from the Chinese authorities’ point
of view, combating overpopulation is a legitimate objective. If we accept this objective as legitimate,
let’s examine the proportionality of the means. First, is the means effective? Well, yes, forced
sterilization is effective. Second, the test of necessity: is the means (forced sterilization) necessary to
achieve the legitimate objective of combating overpopulation? Are there no other means, such as
prevention, that could achieve the same legitimate objective without infringing on the fundamental
right concerned in the same way? Two points should be made clear. On the one hand, this is a
discriminatory violation of human rights, since only women, and no man, are subjected to forced
sterilization. On the other hand, it is a violation of the physical integrity of a person. The question of
seriousness must be asked: in the light of the principle of proportionality, accentuated by the principle
of non-discrimination, can these acts be considered as acts of persecution?
It is the test of necessity that is the most debated. But let us bear in mind that the proportionality
is examined both in terms of the severity (seriousness) of the acts, which may be quantitative or
qualitative, and the severity (seriousness) of the fundamental human rights at stake.
We are now coming to the end of our review of the persecution scale.
Remember these three points:
1. The debate on the persecutor. The protection approach should be retained: even if
the persecution is the act of a private person and if the State is not responsible for it.
The key question is: is that State capable of protecting?
2. The debate on the grounds for persecution. This is a nexus, a contributory link, also
taking into account the imputation of the reasons by the persecutor.
3. The level of severity in the scale. Certainly, a serious violation of fundamental rights
must be attained to speak of persecution. This level must be measured according to the
principle of proportionality.

Central to the refugee definition in the Geneva Convention, are the words “well-founded fear of
persecution” if the applicant returns to the country of origin. Let us now focus on the words “well-
founded fear” in the form of a second scale, the scale of risk.
We prefer the word “risk,” rather than “fear” to keep the analysis as objective as possible. This is
not because subjective fear is irrelevant, particularly from the point of view of a person’s
vulnerability, but because, hypothetically, this subjective fear is already inferred from the person’s
application for protection. We are trying to measure objectively the risk of persecution for that
person in case of return to their country of origin. The question is whether the claim is well-
founded. We are attempting to keep the analysis objective to see whether there is a sufficient level
of risk in the event of return that would lead to recognition as a refugee within the meaning of the
Geneva Convention.
It is therefore necessary to examine: (1) when the risk is measured, (2) where it could occur, and
(3) the level of that risk.

25
A risk is assumed to be a future event. Therefore, it is necessary to evaluate this risk at the time of
the decision (ex nunc). This is not to say that past persecution should not be considered. In fact, it
must be considered. Past persecution creates a rebuttable presumption (iuris tantum) of further risk
of persecution.
Art. 4(4) EU Qualification Directive expressly provides that:

The fact that an applicant has already been subject to persecution […] or to direct threats of
such persecution […] is a serious indication of the applicant’s well-founded fear of persecution
[…] unless there are good reasons to consider that such persecution […] will not be repeated.
What if the persecution suffered is a one-off? For example, genital mutilation or forced sterilization
is carried out once and is unlikely to be repeated. Some decisions have found that a woman seeking
protection and refugee status because of a forced sterilization had no future risk, since the
persecution had already taken place and was not likely to be repeated.
Two lines of reasoning suggest that this does not necessarily remove the “well-founded fear” of
persecution.
First, there is the notion of continuing persecution (also: persistent or ongoing persecution). An
act can begin with physical persecution, but it can have psychological and other kinds of
consequences over time, such that the persecution will be ongoing and not limited to a single
previous persecution. It outlasts a moment or event, and will continue in the future. Several case-
law decisions speak of “exacerbated subjective fear.”
Second, because of the seriousness of the persecution suffered, a person may refuse the protection
of their country of origin for “compelling reasons arising out of previous persecution.” This phrase
is used in Art. 1(C)(5) of the Geneva Convention as an exception to the cessation of refugee status
when circumstances have changed.
The point here is to reason by analogy and to apply the exception clause to cessation in advance at
the time of the decision on the status. We will come back to this with a decision of the High Court
of South Africa where we see the cessation of refugee status.

 High Court South Africa, 4 April 2007, Mayongo. An Angolan boy was forced to eat part of his
father’s remains after his father was killed in front of him during the armed conflict. There was no
longer any objective risk after the peace agreements, but post-traumatic stress was a compelling
reason for recognition.
For the time being, let us remember that in principle, the risk is assessed ex nunc, at the time of the
decision.

Art. 4(4) Qualification Directive.

High Court South Africa, 4 April 2007, Mayongo.

26
K. Smyth-Dent, J. Fitzgerald, Y. Hagos, “A Field Study on the EMDR Integrative Group
Treatment Protocol for Ongoing Traumatic Stress Provided to Adolescent Eritrean Refugees
Living in Ethiopia” (2019) 12(4) Psychol. Behav. Sci. Int. J. MS.ID.555841.

Where is the risk located and where does it materialize? This question leads us to examine two
interesting notions: the refugee “sur place” and the internal protection alternative.

In principle, the events leading to the risk of persecution will have likely occurred in the person’s
country of origin. But this may not always be the case. Imagine someone comes to your country as
a student. At no time does he want to apply for refugee status, but the situation in his country of
origin changes. He might then consider applying for refugee status because there are new events in
his country of origin (objective change).
There is another more complex hypothesis, where there would not be an objective change in the
country of origin but a subjective element, the person him or herself changes. For example, this
student in the host country starts to demonstrate against the authorities of his home country.
Should we examine in this case whether what he is doing is related to the situation as it previously
existed in his country of origin? The Qualification Directive goes relatively in that direction. In
Art. 5(2), it addresses this question and states that: “A well-founded fear of being persecuted […]
may be based on activities which the applicant has engaged in since he or she left the country of
origin, in particular where it is established that the activities relied upon constitute the expression
and continuation of convictions or orientations held in the country of origin.” The word used is
“continuation.” Does that mean there should be continuity between what I did and who I was in
my country of origin and what I do where I am in the host country? Not necessarily. Let’s note
that the Qualification Directive says, “in particular.” It is illustrative, it is not exhaustive. Often the
good faith of the person is what will be measured. If, for example, the student is somehow
“converted to human rights.” This is conceivable, but was it in good faith that he developed causes
of possible persecution in the future that did not previously exist?

The question is: is there a risk of persecution for a person if I return them to their country of
origin? There may not be a risk in the entire country. A person may have a well-founded fear of
persecution in one area of the country of origin but not elsewhere. The person could go elsewhere,
where he or she would be protected from that persecution, for example because another ethnic
group is in the majority. This is what we will sometimes call the “internal flight alternative” (IFA).
The word flight is not very correct, because it is not just about fleeing, it is also about being
protected. It is therefore more correct to speak of an internal protection alternative (IPA). Will there
be real protection against the risk of persecution, or even against other risks of persecution within
the meaning of the Geneva Convention, in another area of the country?
The concept of internal protection is not contrary to the Geneva Convention.

27
Remember: the international protection of the Geneva Convention is a surrogate, a substitute
protection in the absence of national protection. This means that if a national protection exists
somewhere in the country of origin, this national protection must be taken into consideration
before international protection.
However, this notion of internal protection must be used with caution.
Details are given in the Art. 8 Qualification Directive which states that an applicant is not in need
of international protection if he or she “can reasonably be expected to settle” in another area of
the country and that this alternative is accessible “safely and legally.” The Directive further states
that “the general circumstances prevailing in that part of the country and to the personal
circumstances of the applicant” should be considered.
On the scale of risk, as with persecution, we are indeed in an individual, case-by-case, in concreto
examination, which measures either the severity of the persecution, including past persecution
which may lead to future risk, or, here, the conditions of an IPA. We will still need to measure what
level of risk is required.

Art. 8 Qualification Directive.

CCE, 25 July 2019, No. 224 282 (in French).

ECtHR, 30 May 2017, A.I. v. Switzerland.

“The Michigan Guidelines on the Internal Protection Alternative” (1999) 21(1) Michigan Journal of
International Law.

The Geneva Convention is silent on the level of risk required. It speaks of “well-founded fear of
persecution.” Is there any way to objectify this further? Should we go so far as to put a figure on
it, such as indicating a percentage of risk? Some case law relating to refugees has taken up the
notion of “real risk,” evoked by the ECtHR, when examining the risk of torture or inhuman or
degrading treatment. Others require a much lower level of risk, saying that it “cannot be excluded”
that there is a risk of persecution, in which case the lesser risk is considered. Some case law has
gone further and has determined a percentage.
For example, the US Supreme Court in a 1987 case (Cardoza Fonseca) stated that: “One can certainly
have a well-founded fear of an event happening when there is less than a 50% chance of the
occurrence taking place.” In other words, there can be less than a 50% chance. Consequently, by
five votes to three, the Court held that “to show a ‘well-founded fear of persecution,’ an alien need
not prove that it is more likely than not that he or she will be persecuted in his or her home
country.”

28
The approach in the High Court of South Africa decision Armand Mwamba (28 February 2017) is
more flexible: “The applicant is not required to prove a ‘real risk’ on a balance of probabilities.”
The South African High Court requires a high level of risk, or for a “real risk.” The Court states
that “the appropriate standard is ‘a real possibility of persecution.’” Others will call it a “reasonable
possibility.” This is more in line with the Geneva Convention’s terms “well-founded” and in line
with the Geneva Convention’s teleological objective of protection.
If a low risk should be taken into consideration, it will not necessarily be sufficient to be recognized
as a refugee. Indeed, the level of risk will have to be related to the levels of persecution and proof.
This will be the subject of the synthesis of the Three-Scale Theory in a comprehensive approach
(infra, after the examination of scale 3: the proof).

Considering the risks that have developed in situ and the internal protection alternative (IPA), the
level of risk to be taken into consideration is, a priori, a low level, knowing that such a level will not
necessarily be sufficient to be recognized as a refugee.
This is a precautionary principle. The more serious the level of persecution, the lower the required
level of risk may be (comprehensive approach).
The first two elements, persecution and risk, will also be assessed in relation to the third element:
proof.

Supreme Court, USA, Cardoza-Fonseca, 1987. “One can certainly have a well-founded fear of an
event happening when there is less than a 50% chance of the occurrence taking place.” "... to show
a ‘well-founded fear of persecution,’ an alien need not prove that it is more likely than not that he
or she will be persecuted in his or her home country.”
High Court of South Africa, Armand Mwanda, 2017.
Supreme Court Canada, 19 October 1995, Chan (China). The Court refers to “the preponderance
of probabilities” and finds that in this case, the risk of forced sterilization of a man is only a “mere
possibility,” which is not sufficient.

G. Goodwin-Gill and J. McAdam, The Refugee Under International Law, 3rd ed. (Oxford, OUP, 2007)
123–129.
J. Hathaway and M. Foster, The Law of Refugee Status (Cambridge, CUP, 2005) 91–109.
UNHCR, Handbook of Procedures and criteria for Determining Refugee Status, §§ 94–96.

J.-Y. Carlier, D. Vanheule, K. Hullmann and C.P. Galiano, Who is a Refugee? A Comparative Case Law
Study (Kluwer Law International, 1997) 696–701.

J.-Y. Carlier and S. Sarolea, Droit des étrangers, p. 426-435, No. 476-486.

29
In the central words of the refugee definition, “well-founded fear of persecution,” we shall now
turn our attention to this precision “well-founded.”
While the words “well-founded” have served to objectify the notion of fear as a notion of risk, they
may also indicate that objective reasons, i.e., proof, evidence, must be provided. Scale 3 examined
here is the scale of proof.
Proof is a very important question, or scale, in practice. It is probably the most difficult to theorize
(see the interview with a lawyer in Module 5).
Three questions will help us in trying to theorize it: who, what, and how?

Who must prove it? In a classic legal procedure, it is the plaintiff: actor incumbit probatio. Often,
however, the refugee, the fugitive, does not have the necessary proof. In this particular procedure,
a form of shared burden of proof is accepted. The applicant gives their personal account of the
facts. The burden of verifying these facts, these elements, in the light of the general situation in the
country of origin and the circumstances invoked, rests on the deciding authority.
Proven past persecution is a rebuttable presumption (iuris tantum) of a risk of future persecution.
There is a reversal of the burden of proof. Art. 4(4) Qualification Directive admits that past
persecution is a serious indication of future persecution and adds: “unless there are good reasons
to consider that such persecution […] will not be repeated.” On this point, the burden of proof
rests on the authority, which must prove why it considers that there are serious reasons to believe
that such persecution will not occur.

CJEU, 22 November 2012, M.M., § 65: “Under Article 4 (1) of Directive 2004/83, although it is
generally for the applicant to submit all elements needed to substantiate the application, the fact
remains that it is the duty of the Member State to cooperate with the applicant at the stage of
determining the relevant elements of that application.”

The modes of proof are varied.

Written or documentary evidence (arrest warrant, wanted notice, etc.), which is favored in legal
proceedings, is rare in refugee law.
Medical reports on the physical or psychological consequences of past persecution can be
important documentary evidence. So can a general expert opinion on the situation in the country.
30
In practice, the person’s story will often be the central element. Hence the importance of the
interview and the conditions under which it is conducted. It is mainly a question of overall
credibility of the applicant. Does the applicant give a coherent account free of major
contradictions? This is not always easy. These issues will be explored further in the module on
procedures (Module 5).

What level of proof is required? Should it be above or below 50%? Perhaps it can be said fairly
clearly that the required level is below 50%.
Why is that? Because we can find references in case law to the notion of benefit of the doubt. This
notion comes from criminal law which says that doubt must benefit the accused. Here, it is a
question of giving the applicant the benefit of the doubt as long as their story is coherent and free
of major contradictions.
This notion of benefit of the doubt appears in case law. It is found early on in § 196 of the UNHCR
Handbook on Procedures and Criteria for Determining Refugee Status.
The judgment of the High Court of South Africa in Armand Mwanba (28 February 2017) expressly
mentions this notion: “The burden of proof applicable in civil proceedings is inappropriate in
refugee cases.” The situation in refugee law is not the same as in civil proceedings. The Court adds
that “a lower standard of proof is required” and states in this regard: “The relevant body should
liberally apply the benefit of the doubt principle.”
This is also found in Australian case law, where the judge asks, “What if I’m wrong?” in other
words, what are the consequences if I’m wrong in my decision that would, for example, deny
refugee status? This scale of proof obviously deals with both elements, well-founded fear and
persecution, and risk and persecution, since the question is: is there a risk of persecution upon
return? Beyond an individual approach to the three scales, and to each of the three scales, we must
take a global, comprehensive approach to the definition’s three elements that complement each
other.

Art. 4(4) Qualification Directive.

High Court South Africa, Armand Mwanda, 2017, § 63: “It has been said time and again that the
burden of proof applicable in civil proceedings is inappropriate in refugee cases, that the inquiry
has an inquisitorial element, that a lower standard of proof is required, and that the relevant body
should liberally apply the benefit of doubt principle.”
Federal Court, Australia, 3 April 2002, W375 (2002), Aust Feder Lexis 16: “Where proof beyond
reasonable doubt is required, self-contradiction, inconsistency and evasiveness may, of course, give
rise to sufficient doubt to warrant the rejection of evidence. However, in cases where only a real

31
possibility need be shown, care must be taken that an over-stringent approach does not result in
an unjust exclusion from consideration of the totality of some evidence where a portion of it could
reasonably have been accepted.”

J. Hathaway and M. Foster, The Law of Refugee Status (Cambridge, CUP, 2005) 110–179.
UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, §§ 196–202.

UNHCR, Note on Burden and Standard of Proof in Refugee Claims, 16 December 1998.

J.-Y. Carlier and S. Sarolea, Droit des étrangers, p. 436-438, No. 487-490.

Examining, in each scale, the three elements of the definition leads to three conclusions:
1. Persecution requires a serious violation of fundamental rights in relation to one of the
five grounds.
2. A low risk, a reasonable possibility that such persecution will occur, must be considered.
3. This risk of persecution must be reasonably proven by a body of evidence which gives
general credibility to the applicant’s story, to be credited, if necessary, with the benefit
of the doubt.
These minimum levels, in each scale, are not sufficient in a comprehensive (holistic)
approach to the refugee definition.
The required complement can be found in any of the three scales. It may be a higher than required
level of persecution, risk, or proof in one or more of the three elements of the definition.
This comprehensive (or holistic) approach allows for a kind of internal proportionality in the
refugee definition between these three elements.
The advantage of this approach is that it gives a reading of the definition that is neither fixed
(attached, for example, to a requirement of high risk) nor lax to the point of recognizing any
suspicion of risk of violation of any right. This flexibility is partly reflected in case law.
In conclusion, read in a structured way and interpreted in an evolving manner (in the light
of today’s conditions), the refugee definition in Article 1 of the Geneva Convention is far
from outdated.
It can address many contemporary situations.

32
The definition of refugee consists of three elements:
1. Persecution;
2. Risk (fear); and
3. Proof (well-founded).
For each of these three elements, we must determine the level required to qualify as a refugee. At
what point does persecution arise? What is the required level of risk? What level of proof is
required? These three elements can be translated into levels or scales. Since each element
influences the other (think of communicating vessels), this Three-Scale Theory offers a
comprehensive (holistic) approach to the definition.

An examination of the definition’s three elements leads to three observations.

1. Persecution requires a serious violation of fundamental rights in relation to one of the
five grounds of the Convention.
2. A low risk, a reasonable possibility that such persecution will occur, must be considered.
3. This risk of persecution must be reasonably proven by a set of elements that give general
credibility to the applicant’s story, credited, if necessary, with the benefit of the doubt.
This is a synthesis of the minimum level required for each element of the refugee definition.

1. Persecution 2. Risk 3. Proof

Serious level

Reasonable proof

Low level

Minimum levels of the three scales

The three scales are combined into one to build a comprehensive approach to the three elements
of the refugee definition and takes the form of a ladder. This ladder is placed, to extend the image,
against the wall of the border to be crossed, for example to enter the “European fortress,” a
frequently used expression. The next step is to examine the overall level to be attained in order to
cross the threshold for recognition of refugee status. The first stage sets the minimum required in
each scale. Combined, they are insufficient to achieve recognition of refugee status (steps 1, 2, 3).
Thus, many decisions are not satisfied with a minimum risk or a level of proof with the benefit of
33
the doubt. Between the addition of the minimums and the maximum, there is a gray area that must
be completed to qualify as a refugee (step 4, complement).

Refugee

4. Complement (+?)

All minimum levels added

3. Evidence

2. Risk

1. Persécution

The three scales combined

The required complement can be found in any of the three scales. It may be a higher level of
persecution, risk, or proof, in one or more of these three elements of the definition. Thus, a person
could be recognized as a refugee if they face a high and substantiated risk, but of a persecution
which, in itself, only just reaches the serious level. This could be, for example, a violation of
economic and social rights. Similarly, a person could be recognized as a refugee if he or she faces
a low risk, but of a very high and reasonably proven persecution. This can be for example, persons
who may be executed if the authorities ever discover their membership of a political party or social
group.
As a consequence, the more serious the level of persecution is, the lower the required level of risk
may be and vice versa. The first two elements, persecution, and risk will also be assessed in relation
to the third element of proof.
This comprehensive (or holistic) approach of the Three-Scale Theory allows for a kind of internal
proportionality in the refugee definition between the three elements (Persecution, Risk, Prove).
Each element of the definition is linked to the others and should not, in the overall analysis made
in the second stage, be considered in isolation. The advantage of this approach is that it gives a
reading of the definition that is neither attached, for example, to a requirement of high risk, nor so
lax as to acknowledge any suspicion of risk of abuse. Some of this flexibility is reflected in case law.

Inclusion led us to analyze, with the three-scale theory, the “well-founded fear of persecution”
according to the refugee definition in the Geneva Convention.
34
On the opposite side of inclusion, there is cessation and exclusion.
Inclusion is the principle, cessation and exclusion are the exceptions. In law, the principle is
interpreted broadly while the exception is interpreted narrowly.

If there is a sufficient level of well-founded fear of persecution, the person is recognized as a refugee
per Geneva statutory protection. This fear of persecution may disappear due to a variety of
circumstances. The refugee status is therefore not definitive, as stated in the cessation clause of
Art. 1(C) of the Geneva Convention.
Cessation can result for objective or subjective reasons.

Objective changes can occur in the country of origin which are not linked to the attitude of the
refugee. For example, a major political change or the death of a dictator…
This change of circumstances must be sufficiently significant and not so temporary as to render
the refugee’s fear of persecution unfounded. For example, it is too soon to take the decision of
cessation as soon as the dictator has died.
Also, one should examine whether the person would be at risk of persecution on another ground:
for example, they are no longer considered a political opponent but would now be at risk of
persecution on account of their ethnicity.

CJEU, Salahadin Abdulla, 2010 (Iraq). After the fall of Saddam Hussein’s regime in Iraq, various
countries considered ending the refugee status of Iraqis refugees, and thus considered their return
to their country of origin. The Court ruled that to implement the cessation clause, it must be
established that the country of origin has taken “reasonable steps to prevent the persecution,”
including an effective judicial system. It is also necessary to verify that there is no other risk of
persecution for the “same reason” or for “one of the reasons” according to “standard of probability
used to assess the risk.”
Cessation for objective reasons such as a change in the country of origin is neither automatic nor
absolute.
It is not automatic because, like recognition, as it requires a procedure to examine whether all the
conditions for the cessation of status are met.
It is not absolute because in case of “compelling reasons arising out of previous persecution,” the
status is maintained and the person cannot be returned to their country of origin (Art. 1(C)(5) and
(6), second paragraph, Geneva Convention). There is an exception to cessation, even if there has
been a change of circumstances. A past persecution may be so horrific that a person has compelling
reasons for refusing to return to their country of origin, or refusing the protection of the authorities
of their country of origin.
This exception can still apply today, for example in situations of genocide.

High Court South Africa, 4 April 2007, Mayongo. An Angolan boy was forced to eat part of his
father’s remains after his father was killed in front of him during the armed conflict. There was no

35
 longer any objective risk after the peace agreements, but post-traumatic stress was a compelling
reason for recognition. This was an anticipatory application, at the inclusion stage, of the exception
to the cessation clause. The High Court decision expressly refers to the declaratory nature of the
recognition of refugee status. It recognizes a previous situation, to say: we are at the inclusion stage
but if he had been recognized, we would not apply the cessation clause, in consequence we must
include. This young man is included in the definition based on the exception to the cessation clause.

CJEU, Salahadin Abdulla, 2 March 2010. To implement the cessation clause, it must be established
that the country of origin has taken “reasonable steps to prevent the persecution,” including an
effective judicial system. It is also necessary to verify that there is no other risk of persecution for
the “same reason” or for “one of the reasons” according to “standard of probability used to assess
the risk.”
High Court South Africa, 4 April 2007, Mayongo.

Art. 16 Qualification Directive.

R. Fitzpatrick and R. Bonoan, “Cessation of Refugee protection” in UNHCR, Refugee Protection in
International Law (Cambridge, CUP, 2003) 491–544.
J. C. Hataway and M. Foster, The Law of Refugee Status (Cambridge, CUP, 2005) 462–523.
UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, §§ 137–139.
UNHCR, Guidelines on International Protection No. 3: Cessation of Refugee Status under
Article 1C(5) and (6) of the 1951 Convention relating to the Status of Refugees (the “Ceased
Circumstances” Clauses), February 2003

There may also be subjective causes for cessation which have the effect that the protection should
cease. A person may no longer need international protection because he or she is again claiming
the protection from the authorities of the country of origin.
According to Art. 1(C) Geneva Convention:
– (1) the person concerned has voluntarily re-availed himself of the protection of the country
of his nationality,
– (2) having lost his nationality, he has voluntarily re-acquired it,
– (4) he has voluntarily re-established himself in the country which he left or outside which
he remained owing to fear of persecution.
This cessation clause does not necessarily automatically apply, for example if someone secretly
returns to his or her country of origin temporarily to attend the funeral of a family member.
If a person returns temporarily, it will be at their own risk, and the authorities of the host country,
which have recognized refugee status, should be notified of this exceptional temporary return.
36
Objective grounds (e.g., change in circumstances) can lead to cessation of status. An exception can
be made in case of previous persecution.
Subjective (voluntary) grounds can also lead to cessation: the person willingly demonstrates that
they no longer need international protection.
Besides these objective and subjective grounds, could the status also be withdrawn for security
reasons in the host country? We will examine this question next, with the exclusion.

UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, §§ 118–134.

The Geneva Convention does not offer absolute refugee protection, unlike Art. 3 ECHR or Art. 3
UNCAT, which protects everyone against a real risk of torture. Grounds for exclusion are expressly
provided for in Art. 1(D), (E) and (F) of the Geneva Convention. Some persons are excluded from
refugee status, either because they enjoy another protection or because they are not worthy of such
international protection.
As with cessation, because exclusion is an exception to the principle of protection, it will be
interpreted strictly.

If the person benefits from another international protection by a UN agency, he or she should not
benefit from the protection offered by the Geneva Convention. Art. 1(D) of the Geneva
Convention states:

This Convention shall not apply to persons who are at present receiving from organs or agencies
of the United Nations other than the United Nations High Commissioner for Refugees
protection or assistance.
This hypothesis currently only applies to Palestinian refugees protected, in certain areas of the
Middle East, by the United Nations Relief and Works Agency (UNRWA), i.e., Lebanon, Syria,
Jordan, the West Bank and the Gaza Strip.
The second paragraph of Art. 1(D) of the Geneva Convention states that: “When such protection
[e.g., UNRWA] or assistance has ceased […] these persons shall ipso facto be entitled to the benefits
of this [Geneva] Convention.”
Case law accepts that a refugee who is forced to leave the area where he was protected by UNRWA
is in principle entitled to Geneva refugee status ipso facto in another country.

37
 CJEU, Bolbol, 2010; El Kott, 2012. It was sufficient for a Palestinian refugee under UNRWA
protection to have been forced to leave the area to benefit ipso facto from the status under
the Geneva Convention.
What can we learn from this case law?
1. This automatic substitution of Geneva protection, in the absence of UNRWA protection,
can only take place if the person benefited from UNRWA protection in the first place.
2. This substitution will in fact take place ipso jure without re-examination of the fear of
persecution, but the person will have to establish the reasons which forced them to leave
that area. This has been accepted for areas in Gaza, or even refugee camps in Lebanon or
Syria as seen in the case law above.

A person who benefits from national protection in their country of residence because, although
not a national citizen, they enjoy the “rights and obligations attached to the possession of the
nationality of that country” will not benefit from international protection and would therefore be
excluded (Art. 1(E) Geneva Convention; Art. 12(1)(b) Qualification Directive). This may be the
case for a European citizen in another EU member State. For example, a Spaniard in Belgium has
the same rights as a Belgian and would be excluded from Geneva refugee status according to the
Qualification Directive because as a European citizen they enjoy the same rights as a national in
another Member State.
In these two cases, exclusion occurs because there is another international or national protection.

Art. 12 Qualification Directive.

CJEU, Serin Alheto, 2018.

CJEU, El Kott, 2012.
CJEU, Bolbol, 2010.

J. Hathaway and M. Foster, The Law of Refugee Status (Cambridge, CUP, 2014) 499–521.
UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, §§ 142–143.
UNHCR, Note on the applicability of article 1 D of the 1951 Convention relating to the Status of
Refugees to Palestinian Refugees, October 2002.

In addition to the exclusion of refugee status on the grounds of another protection (international
or national), persons can be excluded from refugee status because they are unworthy of it. Art. 1(F)
38
Geneva Convention (Art. 12(2) Qualification Directive) provides for the exclusion of persons for
whom there are “serious reasons for considering” that they have committed in their country of
origin:
1. a serious non-political crime (Art. 1(F)(b) Geneva),
2. a crime against humanity (Art. 1(F)(a) Geneva), or
3. acts contrary to the purposes and principles of the United Nations.
The idea is that, in the aforementioned cases, the person is not deserving of refugee protection.

The exclusion for serious non-political crimes requires two clarifications: (1) the place and time of
the crime; and (2) its severity.
First, it is not a crime committed in the host country. It is a crime committed outside the host
country and prior to the admission to that country as a refugee. This is to ensure that a person who
has committed a non-political crime in the country of origin is not fleeing to escape justice, given
the territoriality of criminal law. In this case, persons are not excluded from “refugee” protection
because they have committed a non-political crime in the host country, but because they are fleeing
from criminal justice in their country of origin for a crime committed there.
Second, it must be a serious non-political crime. Whether it is a non-political crime or a political
crime will be determined by a standard of reference. For example, a person fleeing the country of
origin, a dictator, could be seen as having committed a “political” crime according to that country’s
legislation. But it is in the light of the references of the host country, not the country of origin, that
the non-political nature of this crime must be examined. Moreover, the severity will also have to
be assessed in the light of the standards of the host country and not those of the country of origin.
For example, the CJEU stated that homosexuals should be recognized as refugees in European
countries because homosexuality is considered as a serious crime under ordinary law in their
country of origin. In this case, the standards of the country of origin cannot be used as a basis to
consider that they have committed a serious non-political crime. Otherwise, there would be
exclusion. But it is based on the standards of the host country that the seriousness of the non-
political crime should be assessed.

The origin of the Geneva Convention—the Second World War and the horrors of Nazism—
explains the concern to exclude from this protection those who are not worthy of it, who do not
deserve this international protection. This is the case if there are “serious reasons for considering”
that such persons have “committed a crime against peace, a war crime or a crime against humanity
as defined in the international instruments” of the United Nations or have “been guilty of acts
contrary to the purposes and principles of the United Nations.” Unlike the international protection
of human rights, which provides absolute condemnation of torture, inhuman and degrading
treatment of any person, no matter what they have done, the international refugee protection of
the Geneva Convention cannot benefit those who have been the absolute enemies of fundamental
human rights.
This exclusion has been applied more frequently since the 1990s against genocide fugitives and
terrorists.
39
Case law’s main lesson in this area is that, since it is an exception to the principle of protection, it
must be interpreted strictly and can only be based on the applicant’s personal actions.
The case law therefore emphasizes the importance of a case-by-case, individual examination. What
has the person done? It is not because the person belongs to a particular group, for example a
terrorist group, that he or she will automatically be excluded from the international protection. It
is a question of personal responsibility and the acts that have been carried out by that person.

CJEU, B and D, 2010 (Turkey, Kurds): exclusion must be subject to an “assessment on a case-by-
case basis,” measuring in particular “individual responsibility” and cannot be inferred
“automatically” from membership of an organization, even if it is on a list of terrorist organizations.
However, the exclusion is subject neither to the current nature of a danger to the state (unlike
refoulement on grounds of public policy) nor to an examination of proportionality (see §§ 2 and 3 of
the judgment, but see also, the dissenting opinion of the Advocate General, proposing “a balance
to be struck between the seriousness of the offence or act and the consequences of exclusion” at
§§ 90–97).

CJEU, 9 November 2010, B and D.: “[T]he finding, in such a context, that there are serious reasons
for considering that a person has committed such a crime or has been guilty of such acts is
conditional on an assessment on a case-by-case basis of the specific facts, with a view to
determining whether the acts committed by the organisation concerned meet the conditions laid
down in those provisions and whether individual responsibility for carrying out those acts can be
attributed to the person concerned.”
CJEU, H.T., 2015.

V. Chetail, International Migration Law (Oxford, OUP, 2019) 170–173.

G. Gilbert, “Current issues in the application of exclusion clauses” in UNHCR, Refugee Protection in
International Law (Cambridge, CUP, 2003) 425–478.
J. Hathaway and M. Foster, The Law of Refugee Status (Cambridge, CUP, 2014) 524–598.
UNHCR, Handbook on Procedures and Criteria for Determining the Refugee Status, §§ 147–163.
UNHCR, Background Note on the Application of the Exclusion Clauses: article 1F of the 1951
Convention relating to the Status of Refugees, 4 September 2003.

The Geneva Convention does not explicitly exclude applicants from refugee status based on the
level of security risk to the host country. The Convention only refers to refoulement on this ground
(Art. 33(2)).
Nevertheless, in view of the rise in terrorism and criminal convictions that are not necessarily
crimes against humanity, more and more State legislations, and even regional texts, are considering
40
the possibility of excluding from refugee status persons who represent a danger to the host
country’s national security or withdrawing refugee status from that person. This ground for
exclusion is therefore used by many States and in regional texts such as the Qualification Directive,
which allows for the revocation or denial of refugee status in cases of risk to national security.
According to Art. 14(4) Qualification Directive:
Member States may revoke, end, or refuse to renew the status granted to a refugee by a governmental,
administrative, judicial or quasi-judicial body, when:
(a) there are reasonable grounds for regarding him or her as a danger to the security of the Member
State in which he or she is present;
(b) he or she, having been convicted by a final judgment of a particularly serious crime, constitutes a
danger to the community of that Member State.
The applicant’s security threat is often inferred from a person’s conviction for a serious non-
political crime in the host country.
The same provision also envisages the possibility not only of revoking, but also of denying refugee
status to a person where there is a risk to the society of the host country.
The question that arises is whether these national or regional provisions are in conformity with the
Geneva Convention, which does not include this security ground as a ground for exclusion from
protection. The case law is cautious and tries both to understand the concern of States and to
ensure respect of fundamental rights.
Two examples of case law illustrate this caution: the courts did not consider that this exclusion,
revocation of status, was contrary to the Geneva Convention, but that only a withdrawal of official
refugee status could take place, which did not lead to the suppression of the person’s refugee status,
who therefore still has to be protected in the light of the main provisions of the Geneva
Convention.
Admittedly, the Geneva Convention does not contain such exclusion on grounds of security, but
it contains the possibility of refoulement of a person who constitutes a danger to national security
(Art. 33(2)). However, another protection will play a role here: that of other texts of protection of
human rights (Art. 3 UNCAT, Art. 3 ECHR), which does not allow a person to be sent back to a
country where they risk torture or inhuman or degrading treatment.

These joined cases concerned three persons convicted for violence in the host country. A Congolese
boy who had been a very violent child soldier later committed violent crimes and was sentenced to
heavy penalties in Belgium, where he had been recognized as a refugee. A young Ivorian was likewise
convicted of acts of violence and rape. Similarly, a Chechen was convicted of serious crimes in the
Czech Republic. In all these cases, they were facing a revocation or denial of their refugee status
because they presented a danger to the society of the host country. The Court emphasized the
declaratory character of the recognition of refugee status. They are refugees, not only because they
have been officially recognized as refugees. It is merely a recognition of their well-founded fear of
persecution. Consequently, the Court stated that the refugee status could be formally revoked, but it
does not take away the quality of refugee that leads to the continuation of the essential protection
under the Geneva Convention.

41
 The Court stated that the Qualification Directive “cannot be interpreted as meaning that […] the
effect of the revocation of refugee status or the refusal to grant that status is that the [concerned
person] is no longer a refugee for the purposes of” the Geneva Convention (§ 97).
The following are excerpts from the decision:
– The “recognition [of refugee status] is declaratory and not constitutive of being a refugee”
(§ 85).
– Being a refugee “is not dependent on the formal recognition of that fact through the granting
of ‘refugee status’” (§ 92).
– The Qualification Directive “cannot be interpreted as meaning that the revocation of refugee
status or the refusal to grant refugee status to a person who has been found to be a refugee is
not conditional on the formal recognition of that status by the granting of ‘refugee status’” (pp.
90–92).
– “It is true that those persons may, in the Member State concerned, be the subject of a decision
revoking their refugee status as defined in [the Qualification Directive], or a decision refusing
to grant that status, but the adoption of such decisions cannot alter the fact of their being
refugees where they satisfy the material conditions necessary to be regarded as being refugees”
under the Geneva Convention (§ 110).

A Somali saw his refugee status withdrawn (i.e., revocation of status) because he represented a
danger to the security of Austrian society. The Court, however, ruled that he could not be sent back
to Somalia, where he risked inhuman and degrading treatment contrary to Article 3 ECHR.

Other examples of exclusion based on regional protection exist and can also be linked to security
reasons.
For example, in Africa, the 1969 OAU Convention (discussed under regional protections in
Module 4) provides that the Convention will not apply to a person who has committed acts contrary
to the objectives and principles of the OAU. One example is The Refugees Act of 2006, Uganda which
refers to the principles of the African Union.

Art. 5:
A person does not qualify to be granted refugee status if
(a) that person has committed a crime against peace, a war crime or a crime against humanity
as defined in any international instrument to which Uganda is a party;
(b) that person has committed a serious non-political crime outside Uganda prior to his or her
admission to Uganda as a refugee;
(c) that person has been guilty of acts contrary to the purpose or principles of the United Nations
Organisation or the OAU (…)

ECtHR, Ahmed v. Austria, 1996.

CJEU, X and X, 2019.
CJEU, B and D, 2010.

42
J. C. Hataway and M. Foster, The Law of Refugee Status (Cambridge, CUP, 2005) 524.

Let’s sum up this section on the protection and definition of the refugee under the Geneva
Convention.

1. The Geneva Convention remains the cornerstone of international refugee protection.

2. This Convention and the definition of refugee are still very much relevant today, if
they are interpreted in an evolutionary way and by reference to fundamental human
rights.
3. In interpreting this definition, a distinction must be made between the principle and the
exceptions. Inclusion is the principle, which, like any principle, needs to be
interpreted broadly. Cessation and exclusion are the exceptions and must be
interpreted restrictively and examined on a case-by-case basis.

According to the Geneva Convention, a refugee is a person who has a well-founded fear of
persecution for one of five reasons: race, religion, nationality, membership of a particular social
group or political opinion. The seriousness of the persecution will have to be examined vis-à-vis
fundamental human rights, in particular the principle of proportionality. We have developed a
Three-Scale Theory, the main purpose of which is to remind us that each element of the
definition—persecution, risk, and proof—must be interpreted separately first and then put
together into a comprehensive interpretation to see whether the general level of well-founded fear
of persecution leads to the recognition of refugee status.

Cessation will occur mainly because of a change in circumstances. There, however, may be an
exception to termination, in special cases, like the horror of previous persecution, where
appropriate. This exception may also be relevant at the level of inclusion.

The main ground for exclusion is unworthiness, due to a serious non-political crime or a crime
against humanity. The person does not deserve international protection. It is necessary, however,
to carefully examine the allegations, on a case-by-case basis. There is a debate on exclusion on the
grounds of insecurity in the host country. A cautious case law accepts, where appropriate,
revocation of status but considers that protection of refugee status is maintained.

43
In summary, the definition of a refugee within the meaning of Art. 1 of the Geneva Convention
requires a case-by-case approach and links the fear of persecution to five grounds.
Individuals may not be protected individually because their fear of persecution is not linked to one
of the five grounds of the Geneva Convention. These persons may be in group situations, for
example fleeing a conflict. In this case, an individual examination of each person’s case will not be
possible. Other forms of subsidiary, complementary, temporary protection, which are better
formalized in regional frameworks, will need to be examined.

44