REFUGEE STATUS

DETERMINATION
Inclusion

Who is a refugee?
Any person who, [ ] 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 or her
nationality and is unable or, owing to such fear, is
unwilling to avail him/herself of the protection of that
country (Art. 1A(2) 1951 Convention)

In relation to stateless persons:

[Any person who] not having a nationality and
being outside the country of his or her former habitual
residence, as a result of such events [owing to a wellfounded fear of being persecuted for reasons of race,
religion, nationality, membership of a particular social
group, political opinion] is unable, or owing to such
fear, is unwilling to return to it (Article 1A(2) 1951
Convention)
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People with dual nationality

In the case of a person who has more than one
nationality, the term the country of his
nationality shall means each of the countries of
which he is a national, and a person shall not be
deemed to be lacking the protection of the country
of his nationality if, without any valid reason
based on a well-founded fear, he has not availed
himself of one of the countries of which he is a
national. (Article 1A(2) 1951 Convention)
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Additional factors
every person who, owing to an external aggression,
occupation, foreign domination, or events seriously
disturbing public order in either part or in the whole of his
or her country of origin or nationality, is compelled to
leave his or her place of habitual residence in order to seek
refuge in another place outside his or her country of origin
or nationality (Art. 1(2) OAU Convention)
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Key Concepts of Inclusion clauses

Outside country of nationality / Former habitual
residence
Well-founded fear
Persecution

Convention grounds for Inclusion

For reasons of:

race /ethnic or tribal origin

religion
nationality
membership of a particular social group
political opinion

Fear
Fear - subjective component
Well-founded - objective component
past personal history
experience of others similarly situated
country of origin information

Criteria
And is unable, or owing to such fear, is
unwilling to avail him/herself to the
protection of that country

Persecution
No explicit definition
Flexible concept
International and regional human rights
standards

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Examples

Threats to life or freedom

Serious human rights violations
Other serious harm
Disproportionate punishment
Discrimination
Laws
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Prosecution
Is the law or policy inherently persecutory?
Is the law or policy actually enforced?
Is the prosecution used as a means of
persecution?
Is the law or policy administered in a
persecutory manner?
Is the punishment disproportionately
severe?
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Agents of Persecution
Government
Government-affiliated groups or individuals
De facto authorities
Private citizens

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Special claims: Sur-place

Claims based on events arising after the applicants
departure from the country of nationality or habitual
residence
The events could be
i. A change in the situation in the country
ii. Activities the applicant did in the host country.

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