1951 Convention on the Status of

Refugees
 A person who is outside his or her country of
nationality or habitual residence; has a well
founded fear of persecution because of his
or her race, religion, nationality,
membership of a particular social group or
political opinion; and is unable or unwilling
to avail himself or herself of the protection
of that country, or to return there, for fear of
persecution.
 1967 Protocol removes geographical (Europe)
and time limitations written into original
Convention.
 Credibility
 The 1951 Convention does not require
credibility as a criteria for protection as a
refugee

 The UNHCR Handbook calls on states to

give the refugee the benefit of the doubt
 Credibility
 Presentation of facts is the most important
part of the prosess
 The asylum system should work as a
cooperative hearing based on narrative
communication instead of adversarial
process
 Most rejections refer to a negative
credibility
 Well-founded Fear: Subjective
Test
 Does the asylum seeker fear persecution?
 The personal and family background of
the applicant (age, culture, education,
gender role)
 Membership of a particular racial,
religious, national, social or political group
 Own interpretationof the situation
 Personal experiences (PTS, RTS)
 Cameron Subjective Fear & Contradictory Behavior: Factors affecting
delay in decision to flee, prompt return home, or violation of terms of
stay

 Familiar risk- persons carry on with life in spite of threat (threat of kidnapping in
Colombia)
 Appeal of risky behavior- escapism, contact with family, confirmation of status or
identity, community, financial security
 Sense of control: take steps (even if ineffective or counterproductive) to reduce risk
 Risk tolerance: person may underestimate risk and delay flight, others will leave at
first indication of danger
 Optimism bias: Persons rate own risk lower than that of others
 Outcome history: survival of prior risk may reduce reaction to subsequent risk-
overconfidence
 Place attachment: Refuse to leave in spite of risk
 Lay knowledge: Informal channels of information on how to survive risk
 Non-embodied risks: Separation from family, economic status, cultural identity as a
result of migration weighed against other risk
 Passivity: Downplay our ability to control a situtation, Precaution abandonment, Post
Traumatic Stress Disorder, Rape Trauma Syndrome
 Defiance: Refusal to adapt behavior in relation to risk
 Faith: Higher power will protect
 Delay in decision making under stress
 Well-founded Fear: Objective
Test
 Does evidence disclose risk of persecution which
would cause a reasonable person to reject state
or origin’s protection?
 What happened to friends, relatives, other
members of same racial, religious, political,
national or social group?
 What are the laws of the country of origin
 How are the laws applied?
 Is the person well-know: Character, background,
influence, wealth, outspokeness (persecution is
local)
 Thomas: Objective Country
Reports
 Does report identify risk categories?
 Take into consideration individual characteristics
 What are the sources of the country report? Is it
transparant? Is there selective quotation from sources,
is the report written in a biased manner against
protection?
 Is the information updated according to current events?
 Is system pursuing administrative processing of claims
(end goal efficiency), professional processing
(consultation of medical, pyschological, and other
experts), or legal processing (emphasis on fair hearing
of claim of rights)?
 Crawley: Persecution
 Serious Harm + Failure of State to Protect
 Goodwin-Gill: Persecution
 Reasons- Illegitimate ends such as elimination of
a minority
 Mixed motives of persecution- Non-convention
motive does not disqualify the validity of
convention motive (pursuit of financial gain +
targeting of minority)
 Interests- human rights that are infringed (Civil
& Political, Social, Cultural & Economic)
 Measures- Active and Passive acts, such as
infliction of physical or mental harm, denial of
civic participation rights, discriminatory policies
 Goodwin-Gill Persecution
 Nature of freedom threatened
 Nature & Severity of restriction
 Likelihood of imposition of such restriction
 Is derogation of a right extended beyond i
scope, duration, or is it discriminatory
 Goodwin-Gill & McAdam:
Persecution
 Measures, taken on the basis of one or more of the
stated grounds, which threaten deprivation of life or
liberty; torture or cruel, inhuman or degrading
treatment; subjection to slavery or servitude; non-
recognition as a person (particularly where the
consequences of such non-recognition impinge directly
on an individual’s life, liberty, livelihood, security, or
integrity); and oppression, discrimination, or harassment
of a person in his or her private home or family life.
 Persecution
 Serious violations of non-derogable rights
 Serious breaches of derogable rights if they
have a systematic or repetitive element
 Discrimination linked to a protected right (e.g.
Freedom of religion)
 Persistant pattern of discrimination
 Cumulative grounds
 Indivudual variances in threshold of what is
persecution (age, culture, gender, pyschology,
experiences)
 Persecution- EU Minimum
Standards- Persecution
 Acts of persecution within the meaning of article 1 A of the Geneva Convention must:
 (a) be sufficiently serious by their nature or repetition as to constitute a severe
violation of basic human rights, in particular the rights from which derogation cannot
be made under Article 15(2) of the European Convention for the Protection of Human
Rights and Fundamental Freedoms; or
 (b) be an accumulation of various measures, including violations of human rights
which is sufficiently severe as to affect an individual in a similar manner as mentioned
in (a).
 2. Acts of persecution as qualified in paragraph 1, can, inter alia, take the form of:
 (a) acts of physical or mental violence, including acts of sexual violence;
 (b) legal, administrative, police, and/or judicial measures which are in themselves
discriminatory or which are implemented in a discriminatory manner;
 (c) prosecution or punishment, which is disproportionate or discriminatory;
 (d) denial of judicial redress resulting in a disproportionate or discriminatory
punishment;
 (e) prosecution or punishment for refusal to perform military service in a conflict,
where performing military service would include crimes or acts falling under the
exclusion clauses as set out in Article 12(2);
 (f) acts of a gender-specific or child-specific nature.
 Persecution: Economic Factors
 The imposition of serious economic
disadvantage (food, shelter, adequate
standard of living)
 Denial of access to employment,
profession or education
 Read: Michelle Foster, International
Refugee Law and Socio-Economic Rights
Refuge from Deprivation (Cambridge
2007)
 UNHCR Handbook 63
 Where economic measures destroy the
economic existence of a particular section
of the population, the victims may
according to the circumstances become
refugees on leaving the country.
 Asbjørn Eide
 Respect- State refrains from interfering with the right
(traditionally applies to civil right, but consider right to
housing requires abstention from eviction)
 Protect- State prevents violations by third parties, e.g.
Right to physical integrity requires active protection
 Fulfill- State takes appropriate legislative, administrative,
judicial, or budgetary measures to award full realization
of the right (traditional social rights) e.g. Right to life
requires measures to increase life expectancy
 Dismantle hierarchical approaches to Human Rights
 Prosecution v. Persecution
 Does the law in the country of origin
define as crime acts which are protected
by international human rights, e.g.
Freedom of expression?
 Do criminal procedures in country of origin
lack basic standards of fairness and
justice?
 Will punishment be excessive with respect
to the crime committed?
Textbook: Guy S. Goodwin-Gill and Jane McAdam, The
Refugee in International Law) (3rd Edition 2007 Oxford
 This class is designed to combine lectures and student
presentations. All students are required to prepare outlines of the
assigned cases and will be asked to present them in class. The
outline is as follows:

 Facts: Who are the parties? Which is the country of origin?

What was the cause of flight? Which court has processed the case?
What were decisions of prior decision makers?

 Issue: What is the legal question to be answered?

 Rule: What is the relevant legal standard?

 Analysis: Please provide your reflections on the consideration

of evidence (documentary, oral, expert testimony, etc.), legal
argumentation, interpretation of facts, and fairness of the decision.
If there is a dissent please discuss the judge’s opposing views. Do
you agree with the holding? Are there gaps or contradictions in the
discussion of the case. Apply counter analysis.

 Conclusion: What is the holding of the case?

 Websites
 UNHCR Refworld:
http://www.unhcr.org/cgi-
bin/texis/vtx/refworld/rwmain
 European Council on Refugees & Exiles:
http://www.ecre.org/
 Center for Gender and Refugee Studies:
http://cgrs.uchastings.edu/
 Norwegian Organisation for Asylum
Seekers: http://www.noas.org/
 European Database of Asylum Law:
http://www.asylumlawdatabase.eu/en/cas
 Soft Law
 UNHCR Handbook,
 Executive Committee Conclusions,
Guidelines,
 Notes on Protection
 All found at:
http://www.unhcr.org/pages/49c3646cce.
html