16 Jun 2020
#RefugeeWeek 15th – 21st June 2020: Definition, The Law, Links & Resources
Refugee Week is a UK-wide festival celebrating the contributions, creativity and resilience of refugees. Founded in 1998 and held every year around World Refugee Day on the 20 June, Refugee Week is also a growing global movement.
Through a programme of arts, cultural and educational events alongside media and creative campaigns, Refugee Week brings about positive encounters between communities, helping them to connect and learn from each other, and promoting a culture of welcome.
What is the Refugee Convention?
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 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.
What is the legal definition of a “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:
- Possession of a fear that is well founded rather than fanciful
- Of treatment that is so bad it amounts to being persecuted
- For one of five reasons, referred to as ‘Convention reasons’: race, religion, nationality, membership of a particular social group or political opinion
- Being outside one’s country
- 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.
Want all this explained in just 60 seconds? Check out this video:
What does “well founded fear” mean?
There are two dimensions to “well founded fear” under the Refugee Convention:
- The refugee must generally show that he or she is telling the truth. If the whole account of what happened is false then usually (but not always) there will be no well founded fear if the person is returned.
- The level of risk of something bad happening if the refugee is returned must be more than fanciful, otherwise it is not “well founded.”
Lawyers and judges in the UK use a standard of proof which is more generous than the normal civil standard of the balance of probabilities. With the balance of probabilities, a person must show that something is more likely than not, or that there is at least a 51% chance of it happening.
In refugee cases the standard of proof is expressed as “reasonable degree of likelihood” or “real risk”. This standard is applied both to assessing whether the refugee is telling the truth and what the chances of something bad happening are in the future.
What does “persecution” mean?
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.’
How important are the Refugee Convention reasons?
The five Convention reasons — race, religion, nationality, social group and political opinion — are very important because without showing that the future risk is because of one of these reasons, a claim to refugee status will fail.
This means that some people commonly referred to as refugees are not formally refugees within the legal meaning of the Refugee Convention. For example, people who flee their homes due to famine or flooding or environmental disaster do not fear persecution for any of the Convention reasons.
What level of protection is needed?
The Refugee Convention has been described as offering “surrogate international protection”, meaning that where a person’s own state persecutes and/or fails to protect them, they are entitled under international law to seek protection elsewhere.
Where a state is persecuting a person, the issue of protection does not really arise. The police are unlikely to offer protection and may indeed be agents of persecution, and it is unlikely in a state persecution case that the victim will be able to find anywhere safe in the country concerned.
Where the persecution comes from private individuals or non state actors, such as a political organisation, a faction in a civil war or a terrorist organisation, the issues of state protection and internal relocation become more relevant.
Top organisations working with refugees:
UNHCR – Guardians of the Refugee Convention. As you would expect, the UNHCR website is a mine of resources on refugee law and protection issues.
Refugee Council – Founded in 1951, the year the Refugee Convention was adopted, this is the semi-official lobbying group on refugee issues in the UK
ASYLOS – An international network of volunteers who research vital information to support people fleeing war, violence, persecution and grave threats with claiming their right to asylum.
Asylum Aid – One of the foremost campaigning groups in the UK, Asylum Aid runs some fantastic projects, particularly on gender and asylum
Refugee Action – Another fantastic charity working with refugees and asylum seekers, Refugee Action do some amazing welfare work on the ground
Freedom from Torture – Formerly known as the Medial Foundation for the Care of Victims of Torture this national therapeutic and campaigning charity does some amazing work
Helen Bamber Foundation – This London based charity also does some amazing work with trauma survivors
For more information visit Free Movement