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What is the legal meaning of “refugee”?

What is the legal meaning of “refugee”?

This week is Refugee Week. The Free Movement blog is about communicating complex legal issues in immigration and asylum law in a clear way so I have amended and republishing this blog post explaining what a refugee actually is in legal terms. I have also collected together some of our previous blog posts about asylum issues. I hope you find it useful and interesting!

I am also making my refugee law ebook freely available for this week. The ebook is a detailed examination of refugee law as it is understood and practiced in the UK. Use code “refugeeweek” as you are making a purchase and a 100% discount will be applied. You can then download and keep the ebook in pdf and pub formats.

Those interested in refugee law issues might also want to take a look at the Asylum Hub, which acts as a gateway to content on Free Movement about asylum law.

What is the legal definition of “refugee”?

The legal definition of the term “refugee” is set out at Article 1A(2) of the Refugee Convention, which defines a refugee as a 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 is unable or, owing to such fear, unwilling to return to it.

The definition can be broken into constituent parts:

  1. Possession of a fear that is well founded rather than fanciful
  2. Of treatment that is so bad it amounts to being persecuted
  3. For one of five reasons, referred to as ‘Convention reasons’: race, religion, nationality, membership of a particular social group or political opinion
  4. Being outside one’s country
  5. Being unable or unwilling to obtain protection in that country

All of the conditions need to be met for the person to be considered a refugee. For example, a person might have a well founded fear and be unable to get protection but if that person does not fear being persecuted for a Convention reason then the person is not a refugee in legal terms. Another person may meet all the other criteria for refugee status but be living in a refugee camp in their own country, in which case he or she is not a refugee and instead would often be referred to as an Internally Displaced Person.

In casual conversation or in the media the word “refugee” is often used to refer to people fleeing civil war, disaster, famine or conflict. There is nothing wrong with calling them refugees, but they do not necessarily meet the legal definition of a refugee in the Refugee Convention. Even victims of civil war do not always qualify for refugee status, if for example they are considered not to have been targeted by either side in the conflict but to have fled the general security situation.

How badly must a person suffer to qualify for refugee status?

eBook Refugee law in the UK: a practical guide

Accessible guide to the law and practice of refugee status determination in the UK including examples, arguments and common scenarios.

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The meaning of “being persecuted” is not further defined in the Refugee Convention itself. This is deliberate: it allows the meaning of the word to be flexible and adaptive. This is useful for refugee protection purposes, but it does mean that the student of refugee law will need to look to various other sources and reference points in order to understand the contemporary meaning of the word and how it has evolved. These sources include the views of UNHCR and refugee law academics, other relevant international legal instruments and the domestic and international courts.

The UNHCR Handbook begins its description of persecution as follows at paragraph 55:

There is no universally accepted definition of “persecution”, and various attempts to formulate such a definition have met with little success. From Article 33 of the 1951 Convention, it may be inferred that a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution. Other serious violations of human rights — for the same reasons — would also constitute persecution.

The courts have been wary of giving specific guidance on the level of ill-treatment required before that ill-treatment can be described as ‘being persecuted’. The reason for this apparent vagueness is simply that the most judges realise that rigid guidance is inappropriate. As Guy Goodwin-Gill says in The Refugee in International Law, 2nd ed. (Oxford, 1996):

There being no limits to the perverse side of human imagination, little purpose is served by attempting to list all known measures of persecution. Assessments must be made from case to case by talking account, on the one hand, of the notion of individual integrity and human dignity and, on the other, of the manner and degree to which they stand to be injured.

Some guidance has emerged over time as to the level of seriousness the treatment must attain. In the first real reported refugee law case in the UK, R v Immigration Appeal Tribunal, ex p Jonah [1985] Imm AR 7, Nolan J suggested that the word should be given its ordinary dictionary definition meaning. The Shorter Oxford English Dictionary provided two meanings, which Nolan J adopted: firstly, ‘To pursue, hunt, drive’ and secondly ‘To pursue with malignancy or injurious action; esp. to oppress for holding a heretical opinion or belief’. As we will see, though, the textual approach is not considered a particularly useful one today.

In the influential landmark House of Lords case of Shah and Islam [1999] INLR 144 Lord Hoffman famously adopted the formula

Persecution = Serious Harm + The Failure of State Protection

The issue of state protection is examined in more detail below, but “serious harm” is as close as the UK courts have come to offering a working and readily intelligible definition of the high threshold for persecution.

What is the Refugee Convention anyway?

The full title of the Refugee Convention is the 1951 UN Convention on the Status of Refugees. The original Convention is today usually read with the 1967 New York Protocol. When lawyers refer to the Refugee Convention we are usually using that as shorthand for the 1951 Convention and 1967 Protocol together.

The Convention was passed by a special United Nations conference on 28 July 1951 and entered into force on 22 April 1954. It was initially backward looking, in the sense that it was limited to protecting European refugees who became refugees before it came into force on 1 January 1951. The 1967 Protocol gave the Convention new life, making it a living, forward looking instrument that offered protection on an ongoing basis.

You can read about the history of the Refugee Convention and its full text on the UNHCR website here.

Not all countries have signed up to both the original 1951 convention and the 1967 protocol as well.

Bright green = parties to 1951 Convention only Yellow = parties to 1967 Protocol only Dark green = parties to Convention and Protocol Grey = non parties
Bright green = parties to 1951 Convention only
Yellow = parties to 1967 Protocol only
Dark green = parties to Convention and Protocol
Grey = non parties

How hard is it for refugees to prove their cases?

An asylum seeker who has fled his or her home and reached another country will face some very serious difficulties in “proving” that his or her account of what happened is true.

Cynicism is rampant amongst case-hardened officials, judges and lawyers, as discussed for example  in Second-hand Emotion? Exploring the Contagion and Impact of Trauma and Distress in the Asylum Law Context by Helen Baillot, Sharon Cowan and Vanessa E. Munro.

This is a huge problem for refugees because often all they have is their own word for what happened to them. Little or no evidence will have been brought with the refugee on their journey to safety, it will be hard or impossible to obtain evidence from the home country and any evidence that is obtained is often alleged to be capable of being forged.

Events in far off lands may well seem implausible or incredible to those residing in the luxury of a stable and comfortable environment. The actions of people from a very different country and culture may seem perplexing and even irrational.

At the same time, though, the stakes could not be higher. A wrong decision in a refugee protection claim can be a death sentence.

For both these reasons — the difficulty in establishing past facts and the consequences of making a wrong decision — the standard of proof in asylum claims is a low one.

In the UK, this low standard of proof is said to be ‘a reasonable degree of likelihood’, which is lower than and different to the civil standard of the balance of probabilities. It has also been expressed as ‘substantial grounds for believing’ or ‘real risk’. The leading case is Ravichandran [1996] Imm AR 97.

What rights do refugees have?

The Refugee Convention imparts certain rights to refugees. The most important of these is the right not to be sent back to their refugee’s own country. This is often referred to using the French term refoulement, which includes not just direct return but also indirect return. For example, it is not lawful for country A to send a refugee to country B if country B might then send the refugee on to their home country, perhaps because country B is not a signatory to the full Refugee Convention.

The Refugee Convention also forbids discrimination against refugees in employment, housing, education and other public services. Refugees should be treated the same as citizens of the host country.

Importantly, because refugees are likely to be unable to obtain a passport or travel document from their own country, the refugees are also entitled to use a Refugee Convention Travel Document for international travel and the pre-existing family members of a refugee are usually entitled to join the refugee in the new host country, a right often referred to as refugee family reunion.

Do refugees have responsibilities?

The Refugee Convention does not impose any responsibilities or duties on refugees as such. However, the Convention does include circumstances where a person who meets the definition of a refugee at Article 1A(2) but is nevertheless excluded from the protection of the Convention. Article 1F of the Convention states that where a person has acted very badly in the past, he or she will not be entitled to refugee status:

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.

In addition, the Convention allows the removal or refoulement of a refugee where the refugee commits a serious crime in the host country. Article 33 sets out the right of non refoulement but also includes an exception:

Prohibition of expulsion or return (“refoulement”)

1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

These exclusion clauses provide an important point of difference with human rights laws, which provide absolute and inviolable protection against torture, for example, no matter what a person has done.

Is refugee status permanent?

The Refugee Convention does not require signatory states to offer permanent protection to refugees. Article 1C of the Convention sets out the circumstances where refugee status might be lost. These are often referred to as the cessation clauses:

This Convention shall cease to apply to any person falling under the terms of section A if:

(1) He has voluntarily re-availed himself of the protection of the country of his nationality; or

(2) Having lost his nationality, he has voluntarily re-acquired it; or

(3) He has acquired a new nationality, and enjoys the protection of the country of his new nationality; or

(4) He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution; or

(5) He can no longer, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality;

Provided that this paragraph shall not apply to a refugee falling under section A(1) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality;

(6) Being a person who has no nationality he is, because of the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, able to return to the country of his former habitual residence;

Provided that this paragraph shall not apply to a refugee falling under section A (1) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to return to the country of his former habitual residence.

Even though there is no obligation to offer permanent protection to refugees, many countries elect to do so either explicitly or implicitly. Here in the UK Government policy has changed several times over the last 20 years.

Before 1999 a refugee would be granted a year of leave and then qualify for settlement. In 1999, to promote refugee integration, the Labour Government moved to granting refugees settlement immediately. Labour reversed that decision in 2005; refugees were then granted five years of leave after which they qualified for settlement unless there were public good reasons for their removal or a Ministerial Declaration was made that their country of origin was now safe. No such declaration had ever been made.

In March 2017 the UK Government changed policy again, ending de facto automatic settlement for refugees. Now, a refugee is granted five years of leave when recognised as a refugee and at the end of five years the refugee can apply for settlement. The Home Office will conduct a “Safe Return Review” and only if protection is still needed will the refugee be granted settlement.

Are there other international laws which protect refugees?

There are some additional international laws concerning refugees. One such is EC Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted. Often referred to as the Qualification Directive as shorthand, this standardised the legal definition of who qualifies for refugee status across Europe when it came into force in 2006, generally bringing other EU states into line with the UK interpretation. For example, France and Germany had until then refused to recognise as refugees those fleeing persecution at the hands of non state actors.

Specific provision is made for Palestinian refugees in the Refugee Convention and the United Nations High Commission for Refugees (UNHCR) is empowered by its mandate to assist people even though they might not meet the strict legal definition set out in the Convention. Such individuals are often referred to as Mandate Refugees.

Want to know more?

If you are interested in refugee law and practice, one of the Free Movement online course covers the topic in more detail, including looking at case law, questions of what sort of treatment might amount to persecution and the meaning of the Convention reasons. Find out more about Free Movement training and membership here. Alternatively, you can buy the ebook on refugee law in the UK here.

Some other Free Movement blog posts about refugees:

Channel Tunnel Man: Refugees should not be prosecuted for irregular entry

Sir Nicholas Winton and the bygone tradition of refugee welcome

Are refugees from Syria really refugees in law?

What is life really like in Zaatari camp and how long should refugees be expected to wait there?

Why do the “migrants” in Calais want to come to the UK?

Is it time to invoke the EU’s Temporary Protection Directive for Syrian refugees?

Refugee family reunion: a user’s guide

Boys to men: how to prepare asylum appeals for young Afghans

Opening a window into the soul: how to prepare asylum claims based on religion

From ABC to DSSH: How to prove that you are a gay refugee?

Colin Yeo
Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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