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The Law of Refugee Status - Summary
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The Law of Refugee StatusIntroduction 3
1 Alienage 3
1.1 Accessing protection 4
1.1.1 Accessing a state party’s jurisdiction 4
1.1.2 Unlawful arrival 5
1.2 Choice of country of origin 6
1.2.1 The legal basis for allocating protective responsibility 6
1.2.2 The duty to avoid refoulement 7
1.3 Determining the state of reference 7
1.3.1 Dual or multiple nationality 8
1.3.3 Stateless persons 8
1.4 Refugees sur place 10
2 Well-founded fear 14
2.1 Implications of the traditional bipartite standard 14
2.2 Practical challenges of implementing the bipartite standard 15
2.2.1 The risky objectification of subjective fear 15
2.2.2 The equation of subjective fear with credibility 16
2.2.3 The creation of unwieldy exceptions 17
2.2.4 Assuming subjective fear 17
2.3 Fear understood as objective apprehension of risk 18
2.3.1 The literal meaning of “well-founded fear” 18
2.3.2 The object and purpose of “well founded fear” 18
2.4 Well-founded apprehension of risk: stating the test 19
2.4.1 Risks in application of the test 20
2.4.2 Shared duty of fact-finding 21
2.4.3 Relevant evidence 21
2.5 Country of origin information 22
2.5.1 Unenforced persecutory laws 22
2.5.2 Improved respect for human rights 23
2.6 The claimant’s evidence 25
2.6.1 The assessment of credibility 25
2.6.2 Credibility implications of mode of departure, travel, or arrival 27
2.6.3 Corroboration 28
2.6.4 Procedural safeguards 28
2.7 Evidence of individual past persecution 29
2.8 Evidence of risk to persons similarly situated 30
2.9 Assessing well-founded fear within the context of generalized risk 31
3 Serious Harm 32
3.2.3 Human Rights as a Benchmark 32
3.3 Physical security 32
3.3.3 Slavery, including trafficking and forced marriage 33
3.3.4 Physical violence 33
, 3.3.5 Adequate standard of living 33
3.3.6 Health 34
3.4 Liberty and freedom 34
3.4.1 Arrest and detention 34
3.4.2 Prosecution 35
3.4.3 Freedom of movement 36
3.3.4 Right to work 36
3.5 Autonomy and self-realization 36
3.5.1 Religion 36
3.5.2 Conscience and belief, including resistance to military service 37
3.5.3 Education 37
3.5.4 Expression and assembly 37
3.5.5 Family and marriage 38
3.5.6 Privacy 38
4 Failure of state protection 38
4.1 Protection is state protection 39
4.2 Failure of state protection an an element of ‘being persecuted’ 39
4.2.1 Unwillingness to protect 39
4.2.2 Inability to protect 40
4.2.3 No presumption of state protection 41
4.2.4 Relevance of failure to seek protection 41
4.2.5 Relevance of general evidence of state protection 42
4.3 Internal Protection alternative 42
4.3.1 The conceptual basis of the internal protection alternative 43
4.3.2 The test of assessing internal protection 43
5 Nexus to civil or political status 45
5.1 ‘For reasons of’ 45
5.2 The nature of the causal link 46
5.2.3 The predicament approach 46
5.3 Quantifying the causal link 47
5.4 The Convention grounds 48
Membership of a particular group 50
6 Persons no longer needing protection 53
6.1 Persons who have secured national protection 53
6.1.1 Voluntary re-availment of national protection 54
6.1.2 Voluntary re-acquisition of nationality 54
6.1.3 Voluntary re-establishment in the country of origin 54
6.1.4 Change of circumstances 54
6.1.5 Acquisition of a new nationality 55
M.K. and Others v. Poland 57
Shift in burden of proof 58
,Introduction
A person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the
criteria contained in the definition. This would necessarily occur prior to the time at which his
refugee status is formally determined. Recognition of his refugee status does not therefore
make him a refugee but declares him to be one. He does not become a refugee because of
recognition, but is recognized because he is a refugee.
Article 1A(2) of the Convention provides that the term “refugee” shall apply to any 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.
It is legally impossible for a state party to the Convention to in any way limit or reduce the
scope of the Convention refugee definition.
Because the refugee definition is framed in general terms, an evolutive or intertemporal
approach is required to ensure that refugee law not be left to stagnate.
1 Alienage
Only a person outside her own state can qualify as a Convention refugee. The alienage
requirement of the definition – limiting status to an at-risk person who is “outside” her own
country – derives from the limited aim of the Refugee Convention to deal “only with the
problem of legal protection and status.” The treaty was conceived not to relieve the suffering
of all forced migrants, but rather to assist a subset comprised of persons who were “outside
their own countries [and] who lacked the protection of a Government.” The intent was to
provide this group of enforced expatriates with legal status and protection to offset the
disabilities of presence outside their own country until they could acquire new or renewed
national protection. Internally displaced persons, while objects of humanitarian concern,
were thought to raise “separate problems of a different character,” since such persons did
not suffer from the legal disabilities of enforced alienage.
The Convention distinguishes refugees from other forced migrants not to signal that
refugees are more important or more deserving, but simply in recognition of the
distinctiveness of their needs.
In any event, the contingent nature of the Convention’s rights regime simply establishes a
legal duty on states to treat refugees on par with their own population. A second
contemporary function of the alienage requirement is to ensure that refugee status as
defined by the Convention is directly linked to the capacity of the international community to
guarantee a remedy.
, The need to be outside one’s own country limits refugee status to seriously at-risk persons
who, by crossing an international border, are within the unqualified protective competence of
other states.
Being a refugee, in other words, means being a person who needs and deserves a specific
form of protection and being a person who can, in practical terms, be guaranteed the
substitute or surrogate protection that the Refugee Convention is designed to deliver.
In sum, the alienage requirement of the Convention refugee definition is not only textually
unambiguous, but remains a principled constraint. It enfranchises a subset of forced
migrants not because they are thought more worthy of assistance than others, but rather
because they face the disabilities of enforced alienage. The rights that follow from
Convention refugee status are thus precisely attuned to countering that predicament.
Second and related, the alienage requirement limits the international promise of protection to
those to whom that protection can, as a practical matter, always be delivered.
1.1 Accessing protection
Given the refugee definition’s commitment to the identification of at-risk persons within the
unqualified protective competence of foreign states, and to the provision to them of rights
designed to compensate them for the disabilities of enforced alienage, it is unsurprising that
alienage is normally achieved upon physical departure from the home country.
→ The definition of a Convention refugee is meant to help identify people who are at risk of
harm and who are not protected by their own country. It is also meant to provide them with
the rights they need to make up for the fact that they are not citizens in their own country.
Because of this, it makes sense that a person's status as a refugee is often determined by
whether or not they have physically left their home country.
Once outside the territory of the state of origin, other governments have full capacity to
protect, whatever the inclinations of the refugee’s home country.
You have not left the country when you are at a consulate or embassy, nor do you fulfill the
requirement of alienage when you are abroad an aircraft or ship, you need to have crossed
international borders, or cross the territorial scope of the country you are fleeing.
→ Until the ship has exited the territorial sea (and where relevant, its contiguous zone) or
until the aircraft ceases to overfly the departure country’s territory, the alienage requirement
is not satisfied.
1.1.1 Accessing a state party’s jurisdiction
Once the alienage requirement is met, an individual who has a “well-founded fear of being
persecuted” for a Convention reason is a refugee with rights under international law. This is
so whether or not status has been recognized, or even claimed. Refugee status
determination does not make a person a refugee. Rather, positive assessment by a state
party simply confirms the status already held by a person who meets the requirements of the
refugee definition.
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