Chapter III

The Refugee Definition:

Article 1A(2) of the Convention defines a "refugee" as someone who, due to events before
January 1, 1951, fears persecution based on race, religion, nationality, social group, or
political opinion. This person is outside their home country, unable or unwilling to seek
protection there. This definition also includes stateless individuals fearing persecution in their
former residence and unwilling to return.
Or,
Every Person 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 habitual residence as a result of such events, is unable or, owing to
such fear, is unwilling to return to it.

A. Inclusion Clauses under the 1951 Geneva Convention

1) The Notion of Well-founded Fear**
a) The two constitutive elements: subjective (“fear”) and objective (“well-founded”)
According to the UNHCR's Note on Burden and Standard of Proof in Refugee Claims
(December 16, 1998), the key to determining refugee status lies in the phrase "well-founded
fear of being persecuted." This phrase involves both a subjective element (fear) and an
objective element (well-founded), and both aspects must be considered together.
In simpler terms, when someone seeks refugee status, they need to show that they genuinely
fear persecution, and this fear must be reasonable based on the presented evidence. The
person's own statement about their state of mind is usually accepted as proof of their fear
unless there are serious doubts about their credibility. Additionally, the person must
demonstrate that the fear they claim is based on valid reasons and it must be well founded.
b) The well-foundedness of the fear of persecution (objective element)
Indicators for assessing the well-foundedness of the fear.
The UNHCR's Note on Burden and Standard of Proof in Refugee Claims, dated 16
December 1998, emphasizes that evaluating the risk of persecution in refugee claims involves
forward-looking, factual considerations. These considerations include the personal
circumstances of the applicant and elements related to the situation in their country of origin.
Factors such as the applicant's background, experiences, and past mistreatment, as well as the
broader conditions in the country of origin, are crucial. While past persecution is significant,
its absence is not decisive, and changes in the country's conditions must also be considered
when assessing the risk of future persecution.
2) The Notion of Persecution**
a) Acts of Persecution
i. Definition based on human rights (the human rights-based approach)
In the Australian case of Chan Yee Kin v. Minister for Immigration and Ethnic Affairs
(1989), harm or threat of harm as part of selective harassment amounts to persecution if done
for a Convention reason. The denial of fundamental rights may also constitute persecution.
In Canada (Attorney General) v. Ward (1993), 'persecution' is defined as a sustained or
systemic violation of basic human rights, indicative of a failure of state protection.
EU Directive 2011/95/EU: Article 9 – Acts of Persecution, provides a human rights-based
approach to defining persecution. Acts must be sufficiently serious violations of basic human
rights or an accumulation of measures severe enough to affect an individual similarly.
Examples include physical or mental violence, discriminatory legal measures,
disproportionate punishment, denial of judicial redress, and gender or child-specific acts.
There must be a connection between the reasons and the acts of persecution or the absence of
protection.

b) Agents of Persecution
UNHCR's interpretation of Article 1 of the 1951 Geneva Convention emphasizes that
persecution by non-state agents falls within the Convention's scope. The source of harm is
deemed irrelevant, and the focus is on well-founded fear and serious harm for reasons
outlined in the Convention.
In the case of Canada v. Ward (1993), the Supreme Court rejected the notion that
persecution must originate from the state, highlighting that international refugee law aims to
provide refuge when local protection fails, regardless of state involvement.
EU Directive 2011/95/EU: Article 6 – Actors of persecution or serious harm broadens the
definition of actors of persecution to include:
a) the state.
b) controlling parties or organizations,
c) non-state actors when state protection is unavailable or unwilling.
c) Lack of Protection
The UNHCR emphasizes effective national protection as one of several factors in
determining refugee status, especially regarding persecution by non-state agents. The
assessment involves balancing various factors, including the state of law, order, and justice.
EU Directive 2011/95/EU outlines that protection against persecution or serious harm can be
provided by the state or controlling parties/organizations, including international ones, if
willing and able to offer effective and non-temporary protection. This includes operating an
effective legal system.
Article 7 – Actors of Protection.
1. Protection against persecution or serious harm can only be provided by:
(a) the State; or
(b) parties or organizations, including international organizations, controlling the State or a
substantial part of the territory of the State.
The CJEU ruling in Aydin Salahadin Abdulla and al. v. Bundesrepublik Deutschland
emphasizes that refugee status ceases when circumstances justifying fear of persecution
change significantly and non-temporarily. Authorities must verify that actors of protection
have taken reasonable steps to prevent persecution, including the presence of international
organizations controlling the state or territory.

d) Internal Flight Alternative

EU Directive 2011/95/EU outlines standards for qualifying third-country nationals or
stateless persons for international protection.
Article 8 allows Member States to reject protection if applicants have no well-founded fear
of persecution, or access to protection, or can safely settle in a part of their country of origin.
The directive emphasizes considering general and personal circumstances when assessing the
need for protection.
The provided texts discuss criteria for determining refugee status under EU Directive
2011/95/EU and UNHCR guidelines. They emphasize the consideration of internal protection
alternatives, outlining factors such as accessibility, state persecution, and reasonableness. The
UNHCR underscores that individuals are not obliged to exhaust all options within their
country before seeking asylum, and internal relocation must be reasonable, offering a safe
environment. The UK Court of Appeals highlights factors like practical accessibility,
physical danger, and undue hardship in assessing the reasonableness of internal relocation.

3) The five grounds of persecution

a) Political opinion
Definition of Political Opinion
UNHCR defines Political opinion should be understood in the broad sense, to incorporate any
opinion on any matter in which the machinery of state, government, society, or policy may be
engaged.”
Article 10(2) – reasons for persecution
When assessing if an applicant has a well-founded fear of being persecuted it is immaterial
whether the applicant possesses the racial, religious, national, social, or political
characteristic which attracts the persecution, provided that such a characteristic is attributed
to the applicant by the actor of persecution.
b) Religion
According to UNHCR, Guidelines on International Protection No. 6: Claims based on
“religion” may involve one or more of the following elements:
a) Religion as belief (including non-belief).
b) Religion as identity.
c) Religion as a way of life.
The term "belief" encompasses theistic, nontheistic, and atheistic beliefs, including
convictions or values about the divine or ultimate reality. Claimants, even within their own
religious tradition, may face persecution as heretics, apostates, schismatics, pagans, or
for superstition.

Article 10(1)(b) – Reasons for Persecution

The concept of religion shall include the holding of theistic, non-theistic and atheistic beliefs,
the participation in, or abstention from, formal worship in private or in public, either alone or
in community with others, other religious acts or expressions of view, or forms of personal or
communal conduct based on or mandated by any religious belief.

c) Race
The UNHCR guidelines define "race" broadly, including ethnic groups, and highlight racial
discrimination as a major violation of human rights. Persecution on racial grounds can be
established if it significantly impacts human dignity or leads to serious consequences. Mere
membership in a racial group may not be enough for refugee status, but certain circumstances
affecting the group can justify a fear of persecution.
Article 10(1)(a) – reasons for persecution
(a) The concept of race shall include considerations of color, descent, or membership of a
particular ethnic group.

d) Nationality
The term "nationality" in the context of refugee status, as outlined in the UNHCR Handbook,
extends beyond citizenship to include membership in an ethnic or linguistic group.
Persecution based on nationality can involve adverse measures against a minority, and
belonging to such a minority can create a well-founded fear of persecution. Conflicts between
national groups may blur the lines between persecution based on nationality and political
opinion. While persecution for nationality is often associated with minority groups, instances
exist where individuals from the majority group may also fear persecution by a dominant
minority.
Article 10(1)(c) – reasons for persecution
The concept of nationality shall not be confined to citizenship or lack thereof but shall
include membership of a group determined by its cultural, ethnic, or linguistic identity,
common geographical or political origins, or its relationship with the population of another
State.

e) Membership of a particular social group

In the case of Canada (Attorney General) v. Ward (1993), the Supreme Court defined
"particular social group" as consisting of three categories: groups with innate characteristics,
those whose members associate for fundamental reasons, and groups associated by a former
voluntary status. The UNHCR, in its Guidelines on International Protection, adopts a
'combining approach,' stating that a particular social group is defined by a common
characteristic other than the risk of persecution or by societal perception. This includes
innate, unchangeable characteristics, historical elements, and those closely linked to identity
or fundamental human rights. Even characteristics that can be changed may qualify if they
are perceived as a cognizable group in society.

B. Exclusion Clauses under Article 1F of the 1951 Geneva Convention

2) Serious Non-political Crimes
3) Acts Contrary to the Purpose and Principles of the United Nations

Article 1F, 1951 Geneva Convention

The provisions of this Convention shall not apply to any person with respect to whom there
are serious reasons for considering that:
(a) He has committed a crime against peace, a war crime, or a crime against humanity, as
defined in the international instruments drawn up to make provision in respect of such
crimes;
(b) He has committed a serious non-political crime outside the country of refuge prior to his
admission to that country as a refugee;
(c) He has been guilty of acts contrary to the purposes and principles of the United Nations.”
1. International Crimes
(Article 1F (a))
The provisions of this Convention shall not apply to any person with respect to whom there
are serious reasons for considering that:
(a) He has committed a crime against peace, a war crime, or a crime against humanity, as
defined in the international instruments drawn up to make provision in respect of such
crimes;”
The paragraph refers to EU Directive 2011/95/EU outlines standards for the qualification of
third-country nationals or stateless persons as beneficiaries of international protection.
Article 12(2)(a) of the directive states that a third-country national or stateless person can be
excluded from refugee status if there are serious reasons to believe they have committed
crimes against peace, war crimes, or crimes against humanity, as defined in international
instruments.
Article 12 (3) applies to individuals who incite or participate in the commission of such
crimes.

a) Definitions and sources of international law to consider in defining international

crimes
UNHCR, Guidelines on International Protection No. 5: Application of the Exclusion Clauses:
Article 1F of the 1951 Convention relating to the Status of Refugees.
1. London Charter and Crimes Against Peace:
- The London Charter, related to the International Military Tribunal, defines a crime against
peace as involving the planning, preparation, initiation, or waging of a war of aggression or a
war in violation of international treaties, agreements, or assurances.
- This crime is typically committed by individuals in high positions of authority
representing a State or a State-like entity.
2. War Crimes:
- War crimes are discussed, and they can be committed in both international and non-
international armed conflicts.
- The nature of war crimes varies based on the type of conflict, covering acts such as willful
killing, torture of civilians, indiscriminate attacks on civilians, and the deprivation of fair and
regular trial rights for civilians or prisoners of war.
3. Crimes Against Humanity:
- Crimes against humanity include acts like genocide, murder, rape, and torture.
 - These acts must be part of a widespread or systematic attack directed against the civilian
population.
- While crimes against humanity can occur in both peacetime and armed conflict, they
require a widespread or systematic nature, distinguishing them from isolated acts.

b) Mere membership
European Union, Court of Justice (Grand Chamber), Bundesrepublik Deutschland v. B.
and D.
The Grand Chamber clarifies that mere membership in a terrorist organization and support for
its armed struggle, alone, do not automatically qualify as 'serious non-political crime' or 'acts
contrary to UN principles.' The determination requires a case-specific assessment of facts,
considering whether the acts meet directive conditions, and individual responsibility with the
requisite standard of proof under Article 12(2).

2) Serious non-political crimes –Article 1F(b)

Article 1F(b), 1951 Geneva Convention
The provisions of this Convention shall not apply to any person with respect to whom there
are serious reasons for considering that: (b) He has committed a serious non-political crime
outside the country of refuge prior to his admission to that country as a refugee.”
EU Directive 2011/95/EU on standards for the qualification of third-country nationals
or stateless persons as beneficiaries of international protection
Article 12 (2) (b): A third-country national or stateless person may be excluded from refugee
status if there are serious reasons to believe they committed a significant non-political crime
before being granted refugee status, with particularly cruel actions, even if politically
motivated, falling under this category.
Article 12 (3): Paragraph 2 applies to persons who incite or otherwise participate in the
commission of the crimes or acts mentioned therein.”
a) The seriousness of the crime
UNHCR, Guidelines on International Protection No. 5: Application of the Exclusion Clauses:
Article 1F of the 1951 Convention relating to the Status of Refugees
This category excludes minor crimes and violations of human rights. Severity is determined
by international standards, considering factors like the nature of the act, harm caused, legal
procedures, penalty, and global perception. Murder, rape, and armed robbery are examples of
serious offenses, while petty theft is not.
In the case of S v. Refugee Status Appeals Authority (CA262/97, 2 April 1998), the New
Zealand Court of Appeal emphasized that classifying a crime as serious requires an
evaluation of its elements, facts, circumstances, and the offender's relevant background. The
severity of the penalty imposed by the contracting state and the state where the crime
occurred are considered. Exclusion from refugee status is intended for offenses at the upper
end of the scale, likely to attract a severe penalty, such as imprisonment for a substantial
period. The determination hinges on whether the crime justifies withholding benefits under
the Refugee Convention.
In the AH (Article 1F(b)) case, the UK Upper Tribunal clarified that determining a "serious
crime" under the Refugee Convention should consider international meaning, not just
national law or sentencing length. Personal participation in a terrorist conspiracy could
qualify as serious. The ruling highlighted evolving state practices and cautioned against
undue reliance on domestic law labels. It emphasized assessing the seriousness of criminal
acts at the time of commission, with subsequent events considered. The completion of a
sentence or acquittal doesn't automatically end the exclusion clause application, and the
passage of time may affect the assessment without a specified timeframe.
b) The non-political nature of the crime
The UNHCR's Handbook and Guidelines on Procedures and Criteria for Determining
Refugee Status, reissued in December 2011, outlines that in assessing,
Whether an offense is "non-political" or a "political" crime, consideration should be given to
the genuine political motives, a direct causal link to political purpose, and a balance where
the political element outweighs its common-law character. Acts grossly out of proportion to
the alleged objective may negate the political nature, especially if they involve atrocities.
In the case of T v. Secretary of State for the Home Department [1996], the UK House of
Lords established that, for Article 1F(b) of the Geneva Convention, a crime qualifies as a
political crime only if:
(1) it is committed with a political purpose, such as overthrowing or changing a government;
and
(2) there is a close and direct link between the crime and the alleged political purpose. The
court considers the means used to achieve the political end, with specific attention to whether
the crime targeted military or governmental entities or civilians, and whether it was likely to
result in indiscriminate harm to the public.

3) Acts contrary to the purpose and principles of the United Nations–Article 1F(c)
Article 1F(c), 1951 Geneva Convention
The provisions of this Convention shall not apply to any person with respect to whom there
are serious reasons for considering that: He has been guilty of acts contrary to the purposes
and principles of the United Nations.”

Article 12(2)(c) and 12(3)

2. A third-country national or a stateless person is excluded from being a refugee where there
are serious reasons for considering that: (c) he or she has been guilty of acts contrary to the
purposes and principles of the United Nations as set out in the Preamble and Articles 1 and 2
of the Charter of the United Nations.
3. Paragraph 2 applies to persons who incite or otherwise participate in the commission of the
crimes or acts mentioned therein.”
UN Security Council, Security Council resolution 1373 (2001) 28 September 2001,
S/RES/1373 (2001)
Declares that acts, methods, and practices of terrorism are contrary to the purposes and
principles of the United Nations and that knowingly financing, planning and inciting terrorist
acts are also contrary to the purposes and principles of the United Nations.
UNHCR's statement on Article 1F(c) in the Bundesrepublik Deutschland v. B and D cases
emphasizes that underscores its exceptional nature, intended for serious acts with an
international dimension. Exclusion from refugee protection should be rare, applying only to
crimes affecting international peace, grave human rights violations, and acts of terrorism. The
criteria involve a high threshold based on gravity, organization, international impact, long-
term objectives, and implications for peace and security, aligning with the principles of the
UN Charter.