Girls in Pakistan in shelter set up by UNHCR after earthquake. Photo: United Nations Photo / Flickr
The legal definition of a refugee in the<span class="span"><span id=hint class="box-source">1951 Refugee Convention</span><div class="popover">Source:<br><br><div>United Nations High Commissioner for Refugees. The 1951 Refugee Convention.</div></div></span>is a general one, according to which a refugee is a person who is:
“...outside his or her former home country owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country or to return there for reasons of fear of persecution.”
The refugee fulfilling this definition is also sometimes called the “conventional” or “convention refugee”.
Based on the wishes of governments, a time limit was included in the general definition of a refugee, according to which the term refugee shall apply to persons outside their former home country “as a result of events occurring before 1 January 1951”. The 1967 Protocol entirely removed this time limitation.
Taking a closer look at the definition of a refugee, according to the 1951 Refugee Convention, we find that a refugee is an unprotected person who is driven to leave his or her home or State of residence due to a well-founded fear of persecution. Such a person must be outside his or her State of origin or habitual residence - it is therefore not possible to obtain refugee status before leaving one's country (e.g., through an application to the diplomatic or consular missions or immigration authorities of a foreign State). However, this does not mean that the person must have left the country immediately prior to their asylum application. It is possible for a person to have stayed abroad for some time already and become a refugee “on the spot” ("sur place" in legal terms) due to a change of circumstances in the country of origin during his or her absence.
The definition of a refugee is a norm of substantive law, i.e., a person becomes a refugee the moment the definitional criteria are met, which occurs before a formal decision is made on his/her legal status as a refugee.
<h6 class="textbox" font-size: 14px>Substantive law creates or defines rights, duties, obligations, and causes of action that can be enforced by law. It is contrasted with procedural law (which sets procedures and methods for enforcing rights and duties).</h6>
The key part of the definition is the phrase “well-founded fear of persecution”. This term contains both a subjective (the mental state of the person) and an objective element (the objective justification for the fear), and both must be considered.
The grounds of persecution are set out exhaustively in the 1951 Convention's definition of a refugee, meaning that to be considered a refugee, a person must demonstrate a well-founded fear of persecution for at least one of the following reasons: (i) race, (ii) religion, (iii) nationality, (iv) membership of a particular social group or (v) political opinion.
While the concept of persecution is not defined in the 1951 Convention, it may be inferred that a threat to life or freedom on account of race, religion, nationality, political opinion, or membership in a particular social group is always persecution. Other serious violations of human rights – for the same reasons – would also constitute persecution. Discrimination or criminal prosecution can in some cases be considered persecution as well.
The State is normally the perpetrator of persecution (the conduct of any of its organs is attributed to the State), but non-state actors (private individuals and organisations) can also be the perpetrators of persecution in certain circumstances if State authorities knowingly tolerate the persecution or are unable to provide effective protection to affected individuals.
<h6 class="textbox" font-size: 14px>Persecution is normally related to action by the authorities of a country. It may also emanate from sections of the population that do not respect the standards established by the laws of the country concerned. A case in point may be religious intolerance, amounting to persecution, in a country otherwise secular, but where sizeable fractions of the population do not respect the religious beliefs of their neighbours. Where serious discriminatory or other offensive acts are committed by the local populace, they can be considered as persecution if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection.</h6>
The definition of refugee excludes any other reasons, such as personal or economic reasons, the existence of armed conflict, famine, or natural disaster. Thus, although persons fleeing war, conflict etc. are very often called refugees, they are not legally refugees.
<span class="span"><span id=hint class="box-source">Economic migrants</span><div class="popover">Source:<br><br><div>Cambridge Dictionary. Economic migrant.</div></div></span>shall be distinguished from refugees - an economic migrant is a person who, for reasons other than those contained in the 1951 Convention's definition, voluntarily leaves his country to take up residence elsewhere. If the person is motivated exclusively by economic considerations, he or she is an economic migrant and not a refugee.
The 1951 Refugee Convention also contains conditions under which a person ceases to be a refugee (the so-called cessation clause), which are based on the premise that international protection associated with refugee status should not be granted where it is no longer necessary or justified. The so-called exclusion clause then sets out the conditions that prevent persons who would otherwise meet the characteristics of a refugee from obtaining international protection – this includes persons who enjoy other protection or persons who do not deserve it for serious reasons (for example when the person committed a crime against peace, a war crime, or a crime against humanity).