Definition

Dr. V. Vijayakumar
NLIU - B.A.LL.B (Hons)
Electives – Refugee Law
2019
 CONVENTION DEFINITION OF REFUGEE
A. For the purpose of the present Convention, the term
‘Refugee’ is a person who:
(1) Has been considered a Refugee under the Arrangements of 12 May
1926 and 30 June 1928 or under Conventions of 28 October 1933
and 10 February 1938, the Protocol of 14 September 1939 or the
Constitution of the International Refugee Organization
(2) As a Result of events occurring before 1 January 1951 and owing
to a well-founded fear of being persecuted for reasons of RACE,
RELIGION, NATIONALITY, MEMBERSHIP OF A PERTICULAR
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 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.
 Amendment by 1967 Protocol
 Article 1(2) of the Protocol omits the phrases ‘As a Result of
events occurring before 1 January 1951’ and ‘as a result of
such events’ from the 1951 Convention Definition.

 Therefore 1951 Convention Definition read with the 1967

Protocol defines the term refugee as a person, who ‘owing to
a 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 is unable or, owing
to such fear, is unwilling to return to it’.
 INTERPRETING THE
DEFINITION

1. An Analysis informed by Human Rights

Principles
 According to Article 31 of the Vienna
Convention on the Law of Treaties, a
Treaty (such as the 1951 Convention) is
to be interpreted ‘in good faith’ in
accordance with the ordinary meaning to
be given to the terms of the treaty in their
context and in the light of its object and
purpose. Article 31 (2) of the VC further
elucidates that the context includes inter
alia, the preamble as a source of the
object and purpose of the instrument.
 Where the object and purpose of the 1951 Convention is
needed to interpret the meaning of terms, the preamble
provides important direction. A Close reading of the preamble
leads to the conclusion that the object and purpose of the
instrument is;

(a) to ensure the protection of the specific rights of the

Refugees.

(b) to encourage international cooperation in that regard

including through the UNHCR, and

(c) to prevent the refugee problem from being a cause of

tension between states
 The preamble contains strong Human rights
Language:

 The first paragraph refers to the international

community’s affirmation of the principle that human
beings shall enjoy fundamental rights and freedoms
such as those in the UDHR, without discrimination.

 The second paragraph recalls the UN’s profound

concerns for refugees and its endeavors to assure
refugees the widest possible exercise of their
fundamental rights and freedoms.
These precepts indicate the aim of the
drafters to incorporate Human rights
values in the identification and
treatment of the refugees, thereby
providing helpful guidance for the
interpretation, in harmony of the
Vienna convention, of the provisions of
the 1951 convention and its Protocol of
1967.
 2. A Holistic Integrated analysis

The Article definition can and for the

purpose of analysis should, be
broken down into its constituent
elements. Nevertheless, it comprises
of only one holistic test. The key to
the refugee determination and
characterization of a person as a
refugee is ‘risk of persecution for a
convention reason’.
 Five essential elements of the definition
1. Alienage.
2. The refugee claimant must be genuinely at risk
(well-founded fear).
3. The claimant’s flight must be motivated by the
prospect of persecution, ie, risk of serious of serious
harm against which the state of origin is unwilling or
unable to offer protection.
4. The risk faced by the refugee claimant must have
some nexus to the convention reasons, ie, race,
religion, nationality, membership of a particular
social group or political opinion.
5. There should be a genuine need and legitimate
claim to protection.
 When attempting to apply article 1 criteria in the
course of asylum procedures, decision procedures
should have regard to all the relevant circumstances
of the case. They need to have a full picture of the
asylum seeker’s personality, background and
personal experiences as well as analysis and up-to-
date knowledge of all the relevant objective
circumstances in the country of origin. (The test both
subjective and objective).
 It is an important principle in status determination
that a person becomes a refugee NOT because of
recognition but is recognized because s/he is a
refugee. It therefore follows that failure to meet
formal, technical requirements such as time
limitations and minor inconsistencies do not negate
the refugee character of a person.
Burden and standard of
Proof
 The burden of proving the claim lies on the
refugee claimant. The burden is discharged by
providing a truthful account of the relevant
facts, so that based upon those facts a proper
decision can be made.
 Owing precisely to the vulnerable situation of
the claimants the responsibility to ascertain
and evaluate the claims also lies on the
decision maker.
 In the case of Exclusion and Cessation
clauses, it is the authorities who assert the
applicability of these clauses and therefore the
onus is on them to establish the reasons
justifying exclusion or cessation.
 The standard of proof of persecution that the
refugee claimant claims, must be proved to be
‘reasonably possible’ in order to be well
founded.
 Because of the particular circumstances of the
asylum seekers, they often encounter obstacles
in obtaining corroborative evidence and
sometimes in providing evidence themselves.
This might pose difficulty in assessment of
credibility. Inability to remember minor details,
minor inconsistencies, insubstantial vagueness
or incorrect statements not material in the
determinative issues should not be taken as
decisive factors in determining credibility.
 Credibility is taken to be established
where the applicant has presented a
claim which is coherent and plausible
and is therefore capable to be believed.
Once the examiner is satisfied with the
applicant’s general credibility, the
claimant should be given the benefit of
doubt as regards those statements for
which evidentiary corroboration is
lacking.
 Analysis of the
Inclusion Clauses
 Well founded Fear
 The ‘Fear’ Element in the definition replaces
the earlier method of defining refugee by
categories (persons of certain categories not
enjoying the protection of their country) by
the general concept of fear for a relevant
motive.
 Fear is a subjective emotion, but for the
purposes of refugee status determination, it
must be well-founded, ie, it must have an
objective basis.
 To the element of fear- a state of mind and a subjective
condition, is added the qualification ‘well-founded’. Implies that
not only the frame of mind of the claimant determines the
refugee status, but the frame of mind should be supported by
an objective situation. ‘Well founded fear’ contains both the
subjective and the objective elements and both should be
taken into consideration.
 An evaluation of the subjective element is inseparable from an
assessment of the personality of the applicant since
psychological reactions of different individuals may not be the
same in identical conditions.
 The subjective element is assessed by taking cognizance of the
personal and family background of the applicant, his
membership of a particular, religious, national social or political
group, his own interpretation of the situation and his personal
experiences.
 As regards the objective element, it is
necessary to evaluate the statements made by
the applicant. The authorities are not to pass
judgment on the conditions of the applicant’s
country of origin. However, the applicant’s
statements cannot be considered iin the
abstract and are to be made context sensitive.
A knowledge of the applicant’s country of
origin while not a primary objective, is an
important element in assessing the applicant’s
credibility.
 The proportion of the subjective and the
objective elements in status determination
process may vary; not quantifiable.

 Host states have often used the mix in their

own favor, many a times denying status to
the claimants.

 The proportion of the two elements should

be used in the spirit of the construction that
“the adjectival phrase well ‘founded’
qualifies but cannot transform the
subjective nature of the emotion.
 R v. Secretary of State for Home Department
ex parte Sivakumaran, [1988] 1 All E. R 193

 The court of Appeal had held that the test for a

well-founded fear of persecution was qualifiedly
subjective. The court said ‘It would be satisfied
by showing (a) Actual fear and (b) good reason
for this fear, looking at the situation from the
point of view of one of reasonable courage.
Unless the applicant’s fear could be dismissed as
‘paranoid’, fear is entirely a subjective state and
should be judged accordingly’.
 On further appeal, the House of Lords
reversed the decision of the Appeal
Court and reinstated the order of the
immigration authorities and as a result
the claimants were sent back to Sri
Lanka.

 The House of Lords held that a genuine

fear of persecution would not suffice.
The fear should have an objective basis
which could be objectively determined.
 The House of Lords held that the fear should
be based on true and objective facts that could
be ascertained by an objective observer like the
Home Secretary or the immigration authorities
and not solely based on the facts known to the
applicant and believed by him to be true.

 The above would mean that the secretary was

entitled to have regard to facts ‘unknown to the
applicant’ in order to assess whether ‘subjective
fear was objectively justified’.
 Abuse of the subjective-objective mix
A Foreigner comes along to the house of Law.
He says: ‘I am in fear’. He asks to be given sanctuary.

The judge demands: ‘Justify your fear, give reasons for

it’.

He answers: ‘My father has been killed by the police of

my country. My two sisters have been harassed. One
of my cousins was arrested, taken to the barracks
where he died of injuries. Before dying he gave
particulars of my friends and relatives including
myself. My other cousin has since been arrested and
killed’.
‘Ah’ says the judge, you must accept that fear is valid when it is
based on facts. And facts being what they are, I can find them
out as well you can. Indeed better. I know the true facts from
my newspaper and from reports from my agents and
informers on ‘the political, social and law and order position at
the present pertaining in your country. Let us have a look at
the facts. People are being killed in your part of the world,
some Tamils in particular. But then people are always killed in
your part of the world. On the basis of the true facts as I
know them I can find no systematic persecution of Tamils or
any group amongst you. There is no objective basis for your
fear as you are under no ‘real and substantial risk. I cannot
admit you at the moment’.
 Persecution
 The term nowhere defined in the convention.

 A meaning can be inferred from Article 33 of the

convention: A Threat to life or freedom on
account of race, religion, nationality, political
opinion or membership in a particular social
group is persecution.

 Other serious violations of human rights for the

same reasons also constitute persecution.
The above meaning constitutes 2 elements:
1. The harm imposed must be a serious
nature.
2. The harm must be imposed for a
designated convention reason.

 James Hathaway defines Persecution as

‘sustained or systemic violation of basic
human rights demonstrative of a failure of
state protection’.
 For the Purpose of the UNHCR persecution
‘comprises human rights abuses or other
serious harm, often but not always with a
systematic or repetitive elements’.

 Mere Discrimination may not in the normal

course amount to persecution and of itself
(though particularly egregious forms will be so
considered) a persistent pattern of consistent
discrimination on cumulative grounds, amount
to it.
 Persecution vs. Prosecution
 when a law of general application has a
differential impact on a person or a group of
persons for a convention reason.

 When Law risks to or does violate Human

rights.

 Cases involving refusal to perform military

service, whether by draft evasion or desertion.
To distinguish between the two, the following is
taken into account:

1. Whether the Law is in conformity with

Human Rights standards or is inherently
persecutory. (For instance where it prohibits
legitimate religious belief or activity)

2. Whether implementation of the law is carried

out in a manner amounting to persecution
based on convention reason.
 Whether persons charged under the law are
denied due process of law for a convention
reason.

 Whether prosecution is discriminatory (for

instance only the members of a certain ethnic
group are prosecuted).

 Whether punishment is meted out in a

discriminatory basis.
 Whether punishment under law amounts to
persecution. (for instance where punishment
amounts to cruel, inhuman or degrading
treatment).

 In case of refusal to perform military service:

1. Whether the service required could not
reasonably be expected to be performed by
the individual because of his or her specific
circumstances.
 (Such specific circumstances are to be
related with genuine beliefs or convictions
of a religious, political, humanitarian or
philosophical matter or for instance, in the
case of internal conflicts of an ethnic nature
or on account of ethnic background)

 Whether there is an exception for conscious

objectors and whether that exception is
acceptable and proportionate.
 Source of Harm

 Some asylum states restrict the meaning of

persecution in the sense of harm emanating
from the state itself or its instrumentalities.

 In UNHCR’s view the source of the feared harm

is of little relevance to finding whether
persecution has actually occurred. If there
exists persecution, source does not matter in
status determination.
 Human rights standards violated for the
purpose of persecution are not those
standards followed in some other countries.

 In order to successfully sustain the claim to

refugee status, human rights alleged to have
been violated must be those standard
generally followed in the country of origin
and the test is to see as to whether or not all
groups in the country are guaranteed the
same standard of Human rights.
 Convention Grounds
 Race

 Religion

 Nationality

 Membership of a particular social group

 Political opinion
 Race
 Race in this context is understood in the
widest sense to include all kinds of ethnic
groups that are referred to as ‘races’ in
common usage.

 It will also entail membership of a specific

social group of common descent forming a
minority within a larger population.
 Account may be taken of the 1965 Convention
on Elimination of All Forms of racial
Discrimination which defines the practice to
include distinctions based on ‘race, color,
descent, or national or ethnic origin’.

 The mere fact of belonging to a certain racial

group will normally not be enough to
substantiate a claim to refugee status.
Discrimination has to follow.
 Religion
 The UDHR and the ICCPR proclaim the right
to freedom of thought, conscience and
religion.

 The right includes freedom to change his

religion, propagate it and freedom to manifest
in public or private, in teaching, practice,
worship and observance. Prohibition of these
may be ‘persecution’.
 At times non-observance to any religion or
belief may invite persecution.

 It may be imputed or perceived by the

persecutor that the person is a member of
such a belonging.

 The Persecutor might as well want a people to

adhere to its faith when they actually belong
to no recognized faith and that may amount to
persecution on religious ground.
 Nationality
 The term in this context is not to be understood
only as Citizenship.

 It also refers to membership of an ethnic or

linguistic group, may overlap with race.

 Persecution for this reason may consist of

adverse attitudes and measures directed
against a national (ethnic, linguistic) minority.
 In certain cases the fact of belonging to such an
ethnic or linguistic minority may in itself give rise to a
well-founded fear of persecution.

 The co-existence within the political boundaries of a

state of two or more national (ethnic, linguistic)
groups may create situation of conflict, hence fear of
persecution.

 Difficult to distinguish between persecution for

reasons of nationality and persecution for reasons of
Political Opinion when a conflict between national
group is combined with political movements with a
specific ‘nationality’.
 Membership of a particular Social
Group
 A particular Social group normally
comprises ‘persons of similar background’

 Persecution under this heading may often

overlap with a claim of persecution on
other grounds, like, race, religion or
nationality.
 Two interpretations are given to the
phrase in different Jurisdictions:

1.First one emphasizes the perception

of the persecutor and/or others within
the relevant society focusing on some
characteristic attribute, activity, interest
or goals.
 Second approach in use holds that
characteristics that identify such groups are
those which are either innate or historical and
therefore cannot be changed, (eg, sex,
heritage, etc) or those which, though it is
possible to change them ought not be
required to be changed because they are so
closely linked to the identity of the person
and/or are expression of basic human Rights
(eg, trade Union, or a vocation as a journalist
or critic).
 A holistic Approach would in effect accept the
validity of both.

 Membership of a particular social group may

be at the root of persecution because there is
no confidence in the group’s loyalty to the
government or because the political outlook,
antecedents or economic activities of its
members, or the very existence of the social
group as such is held to be an obstacle to the
government’s policies.
 Social group: Gender
 Convention definition does not include
‘gender’ or ‘sex’ as grounds of persecution.

 Feminists view this as a neglect of ‘gender’ as

a critical consideration in refugee
determination.

 Doreen Indra cites this absence as an

illustration of ‘gender delegitimization in
refugee contexts’.
 Feminists call for revision persecution
definition in line with the theory of social
bifurcation.

 Opponents to this proposition believe that

‘gender’ or ‘sex’ can be easily included in the
prescribed ground in the convention
definition, namely, ‘membership of a particular
social group’.
Outside the country of
nationality or habitual
residence.
Unable or unwilling to avail the
state protection