The main source of international refugee law is the 1951 Convention Relating to the Status of Refugees (1951 Convention) and its 1967 Protocol. This page explains the definition of a refugee as outlined under Article 1 of the 1951 Convention. In particular, it explains how the recognized grounds of persecution under the 1951 Convention, i.e. race, religion, nationality, and membership of a particular social group, are interpreted. The interpretation of ‘well-founded fear’ as part of the refugee definition is also explained.
Convention definition of a refugee
Individuals who meet the definition of a refugee according to the 1951 Convention is known as a Convention refugee. Article 1A(2) of the 1951 Convention defines a refugee as someone 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.
This definition can essentially be broken down into four requirements:
- Being outside of the country of nationality (or, if stateless, the country of last habitual residence);
- Being unable or unwilling to return to this country or to invoke its protection;
- Fear of persecution in one’s country of origin on the grounds of:
- membership of a particular social group,
- or political opinion, and
- The fear of persecution is well-founded.
Note that the definition refers to being outside a country, not to the act of crossing a border. This means that if the situation in someone’s home country changes while they are abroad, or if their opinions or activities abroad put them at risk upon return, they can apply for refugee status. They are known as ‘refugees sur place.’
The 1951 Convention links the definition of a refugee to “events occurring before 1 January 1951”. This is because the Convention was created in response to the post-World War II exodus of Jews and others from Nazi Germany. However, the function of the 1967 Protocol is to remove this temporal limitation, universalizing the refugee regime. There are still some states, however, which are party to the 1951 Convention but have not acceded to the Protocol, meaning that the temporal limitation is still in place on their territories.
In order to be recognized as a refugee under the 1951 Convention, one of the criteria is that individual has a fear of being persecuted ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’. The interpretation of these five grounds of persecution will be explained below. Note that some refugees are persecuted for more than one ground and can make a claim under each of the relevant grounds.
Race, religion, nationality
Race, religion, and nationality should be understood in the widest sense. Race includes ethnic and social groups of common descent. Religion includes identification with any group with a common set of traditions and beliefs, as well as the active practice of that religion. It also includes atheism and other forms of non-theist belief and practice. Nationality includes citizenship, and may also be understood as particular ethnic, cultural or linguistic groups within a country.
Membership of a particular social group
A particular social group refers to people with a shared background, customs, or social status. It is the Convention ground with the least clarity, but the greatest flexibility. A particular social group is a group of persons who share a common characteristic or who are perceived as a group by society. The characteristic needs to be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one’s human rights. Whether a characteristic is fundamental to identity can be judged in accordance with fundamental human rights, or may be fulfilled by a historic component: previous membership of a group which is well-known and cannot be altered.
A particular social group cannot be defined by the persecution of the group. In identifying the name of the group, one needs to understand the characteristics that lead to the persecution. There is no need for cohesiveness among the members of such a group; they do not need to know each other or associate together. It may be the case that not all members of the group are at the same risk of persecution, on account of their behavior or other privileges such as class or wealth.
This is the grounds upon which LGBTI refugee claims are often made, and it has been extended to diverse groups, such as landowners and former members of the military. Narrowly defined groups have better success in legal arguments, e.g., “women in Pakistan who have left their husbands,” compared to more vague groups, e.g., “Pakistani women.”
This can refer both to actual or imputed (alleged) political opinion of an individual, as demonstrable by her actions or affiliations. It includes opinions that have been attributed to someone, even if incorrectly. Lack of a political opinion (or neutrality) can also be categorized under this ground.
This ground also includes political opinions that have been hidden out of the need to survive, and have only been revealed post-flight — in which she would be subject to persecution if she were to return to her home country. As mentioned above, this would be a sur place claim.
Many, if not all, of the grounds for refugee protection can be imputed. That is to say, a person claiming refugee protection on a certain ground does not need to actually have the characteristic that is the claimed basis for persecution. It is enough that the persecuting agents perceive that she has the characteristic. For instance, a woman in a traditional Muslim society who chooses not to adhere to the expected religious dress code may be persecuted because others perceive her to be an atheist, even if she is actually a religious Muslim. What matters for her claim in this instance is not her actual religious beliefs, but what her persecutors reasonably believed her religious beliefs and practices to be. Imputed grounds can be especially important for women and children, whose political opinions and religious practices are often imputed based on the behaviors and actions of their male family members.
This requirement generally has an objective and a subjective component. “Well-founded fear” must be objectively evaluated, with a focus on the individual’s forward-looking risk of being persecuted. A refugee’s fear can be justified by reviewing country of origin information (COI), such as human rights monitors’ reports, news items, government and UN briefings. It can also include evidence that the applicant may provide, such as threatening letters or proof of discrimination or mistreatment. To fulfill the subjective component, the individual only has to allege the fear of persecution. This allegation may be direct or inferred from their statements.
For in-depth guidelines on each of the Convention grounds discussed above, you may consult UNHCR’s Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees. This handbook is periodically updated to reflect the latest thinking on how to evaluate claims based on the various Convention grounds. The current version of the handbook was published in 2011.
- States Parties to the 1951 Convention relating to the Status of Refugees and the 1967 Protocol (UNHCR, 2011)
- Michigan Guidelines on Well-founded Fear (University of Michigan Law School, 2004)
- Asylum and the Rights of Refugees: interpreting key terms (International Justice Resource Center)
- Asylum and the rights of refugees: selected case law (International Justice Resource Center)
- UNHCR’s Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (UNHCR, 2011)
- Training Films on Refugee law and Particular Issues when Representing Asylum Seekers (International Refugee Rights Initiative, 2000)
- Summary Conclusions: membership of a particular social group (UNHCR and International Institute of Humanitarian Law, 2001)
- Guidelines on International Protection: “Membership of a particular social group” within the context of Article 1A(2) (UNHCR, 2002)