The 1951 United Nations Convention Relating to the Status of Refugees (Refugee Convention) is the basis of refugee law. It sets out the criteria someone has to meet in order to be recognised as a refugee. It also sets out what rights people have when they are recognised as refugees.
You can see the full text of the Refugee Convention on the United Nations High Commissioner for Refugees’ (UNHCR) website.
When the 1951 Refugee Convention was drafted, it was time-limited and only applied to European refugees. But in 1967, the United Nations passed the Protocol Relating to the Status of Refugees, which means that the principles of refugee protection within the Refugee Convention apply to refugees worldwide at any time.
The 1951 Refugee Convention and the 1967 Protocol remain the basis of refugee law today. To date, 147 countries have signed either the Refugee Convention or the 1967 Protocol and have therefore committed themselves to three principal duties:
- Non-refoulement (French term meaning not to drive back or to repel)
- Protection of refugees
- Equal rights to recognised refugees
Non-refoulement: Signatories to the Refugee Convention must never return refugees to any territory where their life or freedom is threatened. This duty also applies to people in refugee-like situations who may not be formally recognised refugees. For example, it applies to asylum seekers still awaiting a decision on their asylum application.
Protection of refugees: Signatory countries must have the means and conditions in place to be able to protect refugees.
Equal rights to recognised refugees: Signatories should guarantee recognised refugees the same rights as other citizens of that country. This includes freedom of religion and movement, the right to work, access to education and travel documents.
Definition of a refugee
Article 1 A (2) of the Refugee Convention defines a refugee as someone 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.’
Someone is a refugee if he or she meets the following criteria set out in the Refugee Convention:
Alienage (‘outside country of origin’)
Asylum applicants have to be outside of their country before a host country can consider their case. This can include being at a border or port of entry. Technically, it can also include being in a consulate or embassy. However, very few people apply for asylum at an embassy in their country. It is irrelevant how the person entered the country, even if it was through unlawful or fraudulent means. It is often believed that people must seek asylum in the first safe country they get to - but this is not what international law says.
Genuine risk (‘well-founded fear’)
Applicants must show they are genuinely at risk of persecution. Fear is an inherently subjective emotion and they must therefore provide objective evidence to show that their fear is justified. This might include evidence about their own circumstances, of past treatment they have suffered or about their country of origin. Under the Refugee Convention, credibility is really only a factor to consider if there is no other objective evidence available and decision-makers can only rely on personal testimony.
The 1951 Refugee Convention is essentially ‘forward looking’. This means that an applicant does not need to have experienced persecution in the past. Past persecution is only an indication of what could happen in the future. Proof of such treatment can show that the applicant’s fear is objective, but there must be a ‘real risk’ or ‘serious possibility’ of it happening again in the future to meet this Convention criterion. Conversely, if applicants did not suffer persecution in the past, they may still be in need of protection in the future.
Serious harm (‘being persecuted’)
Applicants have to show they are genuinely at risk of serious harm or, in other words, of persecution. There has been much caselaw about what amounts to ‘being persecuted’. The notion of persecution has been defined as serious harm plus the failure of state protection. Violations of the most important and absolute rights, such as the right to life and freedom from torture, for example, would always amount to serious harm.
Failure of state protection
- ‘Unable or, owing to such fear, is unwilling to avail himself of the protection of that country’
The Convention is designed to provide surrogate international protection in the absence of state protection. Asylum applicants must therefore show that the state in their country is failing to protect them. Examples of this might be that:
- The perpetrators of persecution are agents of the state
- The perpetrators are state-sponsored or tolerated by the state
- The state is unable or unwilling to provide protection against the persecution
If the state can provide protection from serious harm, such protection must be sufficient and effective.
Convention grounds
- race
- religion
- nationality
- membership of a particular social group or
- political opinion
The refugee definition sets out that the risk of persecution faced by applicants must be linked to their ‘race, religion, nationality, membership of a particular social group or political opinion’. Applicants need to show that their potential persecutor’s motivation, or the state’s lack of protection, is due to one of the five grounds identified in the Refugee Convention. Applicants can also pass this test if the persecution, or lack of protection from it, is based on imputed rather than actual links to one of the reasons in the Convention.
Other important issues for decisionmakers
There are other important issues for decision-makers when deciding if someone meets the refugee definition.
Persecution by non-state agents
Persecution does not need to be carried out by agents of the state to be recognised under the Refugee Convention. However, if persecution is committed by a non-state agent, an asylum applicant will need to show that the state will not or cannot provide adequate protection against it. The existence of a functioning police force, protective laws and a criminal justice system does not necessarily guarantee protection from the state.
Membership of a particular social group
The least well-defined and therefore the most litigated Convention ground for claiming asylum has been ‘membership of a particular social group.’ Most notably this Convention reason has been used to argue cases where persecution has been because of gender or sexual orientation. For example, in the case of Shah and Islam, the majority of the House of Lords found that gender can constitute a ‘particular social group’ due to the lack of protection available to female victims of domestic violence in a particular society. This judgement set a significant precedent in refugee law, and led to the recognition that the definition of ‘particular social group’ can include lesbian and gay people.
Internal flight
If an asylum applicant’s fear of persecution does not extend to the whole territory of their country of origin, they must show that they do not have the option of returning to another part of the country. For a decision-maker to refuse an application on ‘internal flight’ grounds, they would have to decide that it is reasonable to ask the applicant to internally relocate.
In April 2007 the Court of Appeal found that the Home Office was acting ‘unduly harshly’ in requiring asylum seekers from the Darfur region of Sudan to relocate to refugee camps in the capital Khartoum.
Exclusion
Article 1F excludes people that have committed certain acts from protection under the Refugee Convention. These include war criminals, people who have committed crimes against peace and humanity, terrorists and those who have committed serious non-political crimes outside their country of refuge. The exclusion clauses also cover people found guilty of acts contrary to the ‘purposes and principles of the United Nations’.
See the Asylum and Immigration Appeals Act 1993 for more details on Refugee Convention criteria.
