Those who wish to ‘claim asylum’ are looking for international protection under the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees. The Convention was drafted following the problems that arose with refugees during the Second World War. The aim wasz to bring the international community together by agreeing that signatories would give international protection to those who otherwise would not have any.
Article 1 of the convention (as amended by the 1967 protocol) defines a refugee as follows;-
“A 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 nationality or, owing to such a 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 the result of such event, is unable or, owing to such a view as unwilling to return to it….”
There are a number of aspects to the definition. The first is that there has to be a well founded fear of persecution. It ought to be noted that persecution is different from prosecution or discrimination.
The second aspect is that persecution has to be as a result of what is termed as “a Convention reason”. There are five convention reasons:
- Membership of a particular social group and
- Political opinion.
The applicant has to be outside the country of his nationality and the applicant has to be unable to obtain protection and unable to return to his own country.
It is important to note that the United Kingdom has no mechanism for individuals to claim asylum from outside the United Kingdom. It is therefore not possible to claim unless one is inside the United Kingdom. One reason for this is that in order to meet the definition of a refugee, the applicant would require to be outside the country of his nationality. However, given the status of Embassies in international law, it would be relatively easy for the UK to facilitate this if there was the political will to do so. The UK only allows those within the United Kingdom to claim asylum and this often means those in genuine need of protection may have to travel to the United Kingdom under the guise of some other type of visa and thereby have to breach UK immigration laws in the process.
In determining whether someone ought to be granted refugee status, the UK Border Agency would usually consider the following questions;-
- Is there well founded fear of persecution?
- Is the persecution as a result of a convention reason?
- Is the applicant’s own State willing and able to provide protection?
- Can the applicant move to another part of his/her country in order to avoid the fear of persecution (internal re-location/internal flight alternative)
Most of the convention reasons are fairly self evident. The most common grounds seen are political opinion and particular social group. In terms of political opinion, one does not necessarily need to hold a political opinion in order to fall into this category. The opinion can be imputed onto them as a result of their actions or inactions.
The question of what is a particular social group (PSG) is an interesting one. There is no specific list of what is a particular social group. The UNHCR (United Nations High Commissioner for Refugees) defines a particular social group as follows:-
“A particular social group is a group of persons who share a common characteristic other than the risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is an innate unchangeable or which otherwise is fundamental to identity, conscious of the exercise of ones’ human rights.”
Examples of a particular social group could be “homosexuals in Iran”, “woman in Pakistan”, “Bidoon in Kuwait” etc. The Convention is a “living instrument” and there is room in the Convention to adapt what is a particular social group. This ensures that there are often very innovative and interesting arguments on who is protected by the Convention.
It should also be noted that some refugees will suffer persecution from more than one Convention reason and it is not unusual to see applicants claim protection for more than one Convention reason.