Rights in Exile Programme

Refugee Legal Aid Information for Lawyers Representing Refugees Globally

1951 Convention

This page offers some help in explaining what the 1951 Convention is and how it helps refugees. 

The 1951 Convention relating to the Status of Refugees and its 1967 Protocol - What they are 

The 1951 Convention relating to the Status of Refugees and its 1967 Protocol are the most detailed and widely accepted international codification of refugee rights. The 1951 Convention provides a definition of "refugee" and spells out the legal status of refugees, including their rights and obligations. But, the scope of this international agreement was limited to persons who became refugees as a result of events occurring before 1 January 1951, which is understood to mean events occurring in Europe prior to this date. The 1967 Protocol Relating to the Status of Refugees, first, removed the 1 January 1951 time limit and, second, made the 1951 Convention applicable without geographical limitation to Europe.

The protocol reversed both these restrictions. Now, an individual who seeks refuge in a country that became party to both, the Convention Relating to the Status of Refugees (1951) and the Protocol Relating to the Status of Refugees (1967), can be eligible for refugee status no matter where in the world they suffered the events that lead them to become a refugee; or whatever time they became a refugee.

The 1951 Convention guarantees refugees’ human rights and provides a definition 

States that have agreed to be bound by the 1951 Convention and its protocol protect refugees in their country and respect refugees' basic human rights. You can see which states have accepted the 1951 Convention here. A refugee’s basic human rights should be at least equivalent to the freedoms enjoyed by foreign nationals living legally in the country. 

Besides an obligation to respect refugees’ basic human rights, Article 1(A)(2) of the 1951 Convention defines a refugee as a person who:

As a result of events occurring before 1 January 1951 and owing to a 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.

NOTE THAT: Refugee status” is declarative. This means that you are a refugee as soon as you fulfill the criteria set forth in the above definition. Recognition of refugee status does not make you a refugee, it merely recognises an already existing situation. Nevertheless, an official recognition is necessary to receive access to refugee services and to receive a legal status for remaining in the host country. 

Explaining the terms of the Convention’s definition

Well Founded Fear of Persecution

The ‘well-founded fear of persecution’ element of the refugee definition is assessed both objectively (is the fear well founded?) and subjectively (is there a fear?). 

To meet the criteria for well founded fear, the fear must be subjectively genuine and objectively reasonable. The subjective element is sometimes met by an assessment of the individual's credibility where the case is not completely clear from the facts on record. The objective element is met by an understanding of the conditions in the country of origin as well as the individual's description of the situation are instructive.

It is not necessary that the applicant’s fear be based on his or her own experience; the applicant’s fear may stem from the experience of similarly situated individuals. In this way, the 1951 Convention protects not only persons who have been persecuted but also to those who wish to avoid risking persecution.

Persecution

The 1951 Convention does not define persecution and no universally accepted definition has evolved. The core meaning of persecution clearly includes the threat of deprivation of life or physical freedom. In its broader sense whether something amounts to persecution under the 1951 Convention turns on the assessment of a range of factors, including: (i) the nature of the freedom that has been threatened, (ii) the nature and severity of the restriction, and (iii) the likelihood of the restriction eventuating in the particular case.

Nexus Grounds

The 1951 Convention refugee definition specifies that a person will qualify for refugee status only if he or she fears persecution ‘for reason’ of one or more of the five grounds listed in Article 1A(2). This is often referred to as the ‘nexus to the Convention’ requirement. It is satisfied if the Convention ground is a relevant factor contributing to the persecution – it does not need to be its sole or even dominant cause. 

Race

Article 1 of the 1965 Convention on the Elimination of All Forms of Racial Discrimination defines racial discrimination to include distinctions based on race colour, descent or national or ethnic origin. This broad meaning is a valid definition of race under the 1951 Convention.

Religion

Freedom of religion is a fundamental human right. It includes the right to have or not to have a religion, to practice one’s religion and to change religions. Religion under the 1951 Convention refers not only to established institutionalised religions; it also covers any belief system, defined by UNHCR as ‘convictions or values about a divine or ultimate reality, or the spiritual destiny of mankind.’ (page 3, section 6 of the link provided above)

Nationality

Nationality as a ground for refugee status includes citizenship and also extends to groups of people defined through their real or perceived ethnic, religious, cultural or linguistic identity, regardless of whether this difference has been legally formalised.

Membership of a particular Social Group 

A particular social group is defined by UNHCR as ‘a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one’s human rights.’ 

To be granted refugee status under this ground means that you are part of a group which is at risk of being persecuted due to the state’s unwillingness or inability to protect them. It does not require that all members of the group have to be at risk nor that there must be cohesiveness amongst members of a group

It should be noted that this is the ground with the least clarity and it is not defined by the 1951 Convention itself. It is being invoked in many refugee status determinations, with many states having recognised the following examples as ‘particular social groups’: women, families, tribes, occupational groups, and sexual orientation and gender identity, as constituting a particular social group for the purposes of the 1951 Convention. This is a non exhaustive list. 

Political Opinion

Article 19 of the Universal Declaration of Human Rights enshrines the right to freedom of opinion. It states: ‘Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.’ 

Political refugees will be most wanted by their state of origin as it is their political opinion that is against the government's practices and causing a threat to the state. Where the opinion has been expressed, and the applicant has been threatened, well founded fear can be established under the 1951 convention. 

Outside the country of nationality

The requirement that a refugee be outside their country of nationality is a factual issue which is easily determined. It should be noted that a refugee does not necessarily need to have left the country of origin for fear of persecution for the convention reasons, but they may find themselves outside the country when an event occurs which engenders well founded fear of persecution and satisfies this ground. 

An individual who fulfils the criteria of the convention reasons but is still inside the country of origin is an Internally Displaced Person (IDP). 

Unable or, owing to such fear, unwilling to return to their country

Unwillingness to avail oneself of this external protection is understood to mean unwillingness to expose oneself to the possibility of being returned to the country of nationality where the feared persecution could occur. 

For a complete overview and analysis of the rights of refugees, please refer to: "The Law of Refugee Status", James Hathaway (1991) and “The Rights of Refugees under International Law“, James C. Hathaway (2005), Cambridge: Cambridge University Press, pp. 936.

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