What is the Legal Definition of “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.
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 it came into force on 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 rights do refugees have?
The Refugee Convention imparts certain rights to refugees. The most important of these is the right not to be sent back to their refugee’s own country. This is often referred to using the French term refoulement, which includes not just direct return but also indirect return. For example, it is not lawful for country A to send a refugee to country B if country B might then send the refugee on to their home country, perhaps because country B is not a signatory to the full Refugee Convention.
The Refugee Convention also forbids discrimination against refugees in employment, housing, education and other public services. Refugees should be treated the same as citizens of the host country.
Importantly, because refugees are likely to be unable to obtain a passport or travel document from their own country, the refugees are also entitled to use a Refugee Convention Travel Document for international travel and the pre-existing family members of a refugee are usually entitled to join the refugee in the new host country, a right often referred to as refugee family reunion.
Do refugees have responsibilities?
The Refugee Convention does not impose any responsibilities or duties on refugees as such. However, the Convention does include circumstances where a person who meets the definition of a refugee at Article 1A(2) but is nevertheless excluded from the protection of the Convention. Article 1F of the Convention states that where a person has acted very badly in the past, he or she will not be entitled to refugee status:
The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.
In addition, the Convention allows the removal or refoulement of a refugee where the refugee commits a serious crime in the host country. Article 33 sets out the right of non refoulement but also includes an exception:
Prohibition of expulsion or return (“refoulement”)
1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
These exclusion clauses provide an important point of difference with human rights laws, which provide absolute and inviolable protection against torture, for example, no matter what a person has done.
Is refugee status permanent?
The Refugee Convention does not require signatory states to offer permanent protection to refugees. Article 1C of the Convention sets out the circumstances where refugee status might be lost. These are often referred to as the cessation clauses:
This Convention shall cease to apply to any person falling under the terms of section A if:
(1) He has voluntarily re-availed himself of the protection of the country of his nationality; or
(2) Having lost his nationality, he has voluntarily re-acquired it; or
(3) He has acquired a new nationality, and enjoys the protection of the country of his new nationality; or
(4) He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution; or
(5) He can no longer, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality;
Provided that this paragraph shall not apply to a refugee falling under section A(1) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality;
(6) Being a person who has no nationality he is, because of the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, able to return to the country of his former habitual residence;
Provided that this paragraph shall not apply to a refugee falling under section A (1) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to return to the country of his former habitual residence.
Even though there is no obligation to offer permanent protection to refugees, many countries elect to do so either explicitly or implicitly. Here in the UK Government policy has changed several times over the last 20 years. Before 1999 a refugee would be granted a year of leave and then qualify for settlement. In 1999, to promote refugee integration, the Labour Government moved to granting refugees settlement immediately. Labour reversed that decision in 2005; refugees were then granted five years of leave after which they qualified for settlement unless there were public good reasons for their removal or a Ministerial Declaration was made that their country of origin was now safe. No such declaration has ever been made. Policy today remains to grant 5 years of leave and permanent settlement on application after that.
Are there other international laws which protect refugees?
There are some additional international laws concerning refugees. One such is EC Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted. Often referred to as the Qualification Directive as shorthand, this standardised the legal definition of who qualifies for refugee status across Europe when it came into force in 2006, generally bringing other EU states into line with the UK interpretation. For example, France and Germany had until then refused to recognise as refugees those fleeing persecution at the hands of non state actors.
Specific provision is made for Palestinian refugees in the Refugee Convention and the United Nations High Commission for Refugees (UNHCR) is empowered by its mandate to assist people even thought they might not meet the strict legal definition set out in the Convention. Such individuals are often referred to as Mandate Refugees.
Want to know more? If you are interested in refugee law and practice, check out Colin’s blog and website Free Movement, including the Free Movement online course covers the topic in more detail, including looking at case law, questions of what sort of treatment might amount to persecution and the meaning of the Convention reasons. Find out more about Free Movement training and membership here. Alternatively, you can buy the ebook on refugee law in the UK here.
