Duhaime's Law Dictionary


Refugee Definition:

A person who is outside his state of origin or of residence, and cannot return for fear of human-rights related persecution.

Related Terms: Asylum, Asylum Shopping

The United Nations 1951 Convention Relating to the Status of Refugees, as amended by the 1966 Protocol, defines a refugee as an individual 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, is unwilling to return to it."

Also, from the Organization of American States, 1985:

"Persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violations of human rights or other circumstances which have seriously disturbed public order."

In the United States, refugee is defined at Title 8 of the United States Code, §1101:

"[R]efugee means any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion,

"... or ...

"In such special circumstances as the President after appropriate consultation … may specify, any person who is within the country of such person’s nationality or, in the case of a person having no nationality, within the country in which such person is habitually residing, and who is persecuted or who has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

"The term refugee does not include any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.

"For purposes of determinations under this chapter, a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion."

Many states give priority to refugees in the acceptance of applicants for immigration and on that basis, qualification as a refugee is essential.

In Ward v Canada, Canada's Supreme Court spoke of the:

"... rationale underlying the international refugee protection regime, for this permeates the interpretation of the various terms requiring examination. International refugee law was formulated to serve as a back-up to the protection one expects from the state of which an individual is a national. It was meant to come into play only in situations when that protection is unavailable, and then only in certain situations. The international community intended that persecuted individuals be required to approach their home state for protection before the responsibility of other states becomes engaged.... as surrogate or substitute protection, activated only upon failure of national protection."

In that decision, the Court also clarified that the state from which refugee status was being sought, needed not to be complicit in the alleged persecution or the "well-founded fear".

Further, in Ward, the Court determined that if a refugee claimant established "fear", she or he might benefit from a presumption:

"... that persecution will be likely, and the fear well-founded, if there is an absence of state protection.....

"What exactly must a claimant do to establish fear of persecution? ...(T)he test is bipartite: (1) the claimant must subjectively fear persecution; and (2) this fear must be well-founded in an objective sense.

"In summary, I find that state complicity is not a necessary component of persecution, either under the unwilling or under the unable branch of the definition. A subjective fear of persecution combined with state inability to protect the claimant creates a presumption that the fear is well-founded. The danger that this presumption will operate too broadly is tempered by a requirement that clear and convincing proof of a state's inability to protect must be advanced."

References:

  • United Nations High Commission for Refugees (UNHCR) at unhcr.org
  • Vasquez v INS, 177 F. 3d 62 (1999)
  • Ward v Canada, [1993] 2 SCR 689

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