Determination of Refugee Status Flashcards
(28 cards)
What are the two conditions to be considered a refugee according to the 1951 Convention?
- WELL-FOUNDED FEAR OF PERSECUTION
- BEING OUTSIDE THE COUNTRY OF ORIGIN /of habitual residency (and unable/unwilling to retourn)
What is an asylum seeker?
A person who has fled their country and is seeking protection in another country but whose claim to refugee status has not yet been legally recognized
What defines as a well-founded fear of persecution?
To be “well-founded” , it has to include both a subjective element and an OBJECTIVE basis for that fear
To be considered a refugee, does the person fleeing the country had to have been persecuted?
NO!! Neither that the putative refugee shall have fled by reason of fear of persecution, nor that persecution should have actually occurred (non importa se la persecution c’è stata o no, importa solo la well-founded FEAR!!!). The element of well-foundedness looks more to the future than to the past
What did the UNHCR amicus curiae say INS v Cardoza-Fonseca?
INS v Cardoza-Fonseca is on the well-foundedness of the fear of persecution.
In INS v Cardoza-Fonseca, the UNHCR amicus curiae said that “
“No statistical definition is…appropriate to determine the reasonableness of an applicant’s fear, given the inherently speculative nature of the exercise. The requisite degree of probability must take into account the INTENSITY OF THE FEAR, the NATURE of the projected harm (death, imprisonment, torture, detention, serious discrimination, etc), the general HISTORY OF PERSECUTION in the home country, the applicant’s PERSONAL EXPERIENCE experience and that of his or her family”
What does the Hathaway and Foster approach say on the fear of persecution?
Under the Hathaway and Foster approach, a ‘risk of “being persecuted”’ requires evidence of a sustained or systemic DENIAL of HUMAN RIGHTS demonstrative of a FAILURE OF THE STATE TO PROTECT
Is there a definition of persecution under the 1951 Convention?
NO. But in practice/in other legal means (e.g: EU Directive) is associated with severe VIOLATION of BASIC HUMAN RIGHTS (usually in EU non-derogable rights under the ECHR) connected with LACK of PROTECTION by the State
What is connected with the fear of persecution?
The lack of protection
Which of the following statements is correct on agents of persecution:
A: According to the scope of the 1951 Convention, the State has to be the persecutor
B: According to the 1951 Convention, the State has to be the one providing protection
C: According to the 1951 Convention, there is no need to establish that the State is the persecutor
D: To be considered a refugee according to the Convention, you must prove absence of protection; the Convention, however, is silent on the issue of non-State actors as protectors, which leads to differents in interpretation
C and D:
it does not matter who is persecuting, what matters is whether the State (or an alternative protection provider) (although the Convention doesn’t talk about the issue of alternative providers –> different in interpretation) is unable or unwilling to offer protection
What does the EU Qualification Directive (2011) say on the issue of agents that provide protection?
the EU Qualification Directive (2011) includes also non-State actors as potential actors of protection —> to be granted the refugee status, an asylum seeker has to demonstrated that he was not able to have protection even from non-state actors in his country of origin.
IT HAS BEEN CRITICIZED BY THE UNHCR
Can a person be denied refugee status because he has not fled the country due to fear of persecution?
NO. The fear of persecution doesn’t have to be the reason why the person is outside the country of origin
The fear may derive from conditions arising during an ordinary absence abroad
What are the reasons for persecution listed in Article 1 of the 1951 Convention?
- Race
- Religion
- Nationality
- Membership to a particular social group
- Political opinion
Who is NOT to be considered member of a particular social group according to Canada v. Ward?
Canada v. Ward found that an association of persons is not a particular social group merely by reason of their common victimization
Are LGBTQ+ people considered members of a particular social group?
YES, because it is an immutable characteristic (1st category of the Ward v. Canada Three-Part Test), they fear persecution because of who they are
Does criminalization of homosexuality constitute persecution
It COULD, but it depends on the situation that the INDIVIDUAL faces (criminalization of homosexuality is a FACTOR amongs others); important: criminalization of homosexuality per se (in itself) does not constitute persecution
What is the case on religion called and what did the court decide?
It’s the Germany v. Y e Z; the Court found that: a person who faces a well-founded fear of persecution because of their religion should be granted asylum, EVEN IF THEY COULD AVOID PERSECUTION BY NOT PRACTICING THE RELIGION. But the case leaves unclear whether someone could be denied asylum on the grounds that they concealed their religious beliefs ( would not practice their religion) in order to avoid
What are the categories of the Three-Part test in Canada v. Ward?
- Groups defined by an innate or unchangeable characteristic
- Groups whose members voluntarily associate for reasons fundamental to their human dignity (e.g., trade unions)
- Groups associated by a former voluntary status, unalterable due to its historical permanence (e.g., former military members)
What was the outcome of the Ward case?
In Ward’s case, his membership in the INLA was voluntary, and he did not meet the first two categories. However, the Court concluded that his former membership in the INLA (and subsequent risk from leaving the group) could fall under the third category: membership in a group defined by a past voluntary status that could not be changed.
Is having fled a civil war incompatible with the well-founded fear of persecution? Why/Why not?
No it is not incompatible; bc the fact that many or all members of particular communities are at risk does not undermine the validity of any particular individual’s claim. The test is whether an INDIVIDUAL’s fear of being persecuted is well-founded
Can someone be denied refugee status if they could safely relocate to another part of their country?
YES, if they could have no fear of persecution and if it would not be unduly harsh or unreasonable to expect them to live there
What was the issue at the core of INS v. Cardoza-Fonseca?
The issue was whether Ms. Cardoza-Fonseca (Nicaraguan applying for asylum in USA) needed to prove a clear PROBABILITY of PERSECUTION (the standard for withholding of removal) or just a WELL-FOUNDED FEAR (the asylum standard).
What did the Court decide in INS v. Cardoza-Fonseca?
In INS v. Cardoza-Fonseca, the court decided that there is no need to prove persecution is probable — just that the fear is both SUBJECTIVELY genuine and OBJECTIVELY reasonable.
What is the name of the case on the assessment of the State’s “sufficient protection”?
The Horvath Case
What was the court’s ruling and reasoning in the Horvath Case?
Horvath was DENYED asylum, this bc persecution must involve failure of state’s protection, and Slovakia did have anti-discrimination laws and a functioning police system; As the court revealed the test is not whether the State protects perfectly, but whether it protects “sufficiently.”
