The conception of the refugee can further be limited by the core phrase of the definition, of which every word has been subject to interpretive dispute. The central question of what it means to be persecuted ‘for reasons of race, religion, nationality, membership in a particular social group, or political opinion’ remains disputed. On the other hand, there is very little in the events of the Second World War and its immediate aftermath to override the language used in the convention restricting the refugee status to those with a well-founded fear of persecution on one of the five specified grounds during the specific historical context as perceived by Harvey when the definition was drafted.
The primary events influencing the Convention’s drafters were the Nazi persecutions of 1933-45. The Convention’s inclusion of persecution for reasons of race, religion and nationality speaks most directly to that experience. The treatment of Jews for reasons of their religion and perceived ‘race’ was the paradigm condition the drafters meant to encompass. In addition, while the period before and during the Second World War had certainly seen its share of persecution of individuals, the immediate post-war period prior to the conference witnessed a new wave, consisting mostly of those in flight from increasingly repressive communist regimes in central and eastern Europe. These refugees, and other groups of similarly displaced persons who refused to repatriate on the basis of feared political persecution, also were clearly of concern to the drafters of the Convention. As with other post-war international legislation, its authors were to a great extent legislating about past events.
The aims of the refugee definition concern the two great paradigms of the post-war period: the rights of non- discrimination and free-expression. The core concept of the refugee definition is protection against the infliction of harm on the basis of differences in personal status or characteristics. Persecution only gives rise to refugee status if it is ‘for reasons of race, religion, nationality, particular social group or political opinion. This idea is implicit in the very notion of ‘persecution’ and is made explicit by the linking of ‘persecution’ with the first four of the five-cognisable grounds. Race, religion, nationality, religion and social group membership, all show matters of status, as opposed to individual action. Refugee law says, in effect, that harm cannot legitimately be premised on an individual’s personal characteristics or status. By implication, refugee law only contemplates the imposition of punishment on the basis of an individual’s wrongful acts, which is another limited conception of the dislodgement between ‘law’ and ‘social reality’ perceived by Harvey.
The Handbook says that race ‘is to be understood in its widest sense to include all kinds of ethnic groups that are referred to as “races” in common usage’ (para 68). It is not impossible for there to be persecution of members of the same race for reasons of race. The Federal Court of Australia in the case of Perampalam v Minister for Immigration and Multicultural Affairs (1999) 55 ALD 431 notes that the LTTE (Tamil Tigers) would approach Tamils for financial support. The implication of this is that due to the law, the pressure could be bought to bear. It may be recalled that the European Commission of Human Rights found the state’s action to passing the racially discriminatory legislation capable in itself to amounting to a violation of Article 3 ECHR (East African Asians v UK (1973)).
The ICCPR and ECHR refer to freedom to manifest one’s religion or beliefs. The case of Ahmed (Iftikhar) v secretary of state for the home department [2002] shows that how belief is manifested, may to an extent be determined by the requirements of the particular belief. This will still not prevent state authorities from curbing religious expression where the permissible reasons in the ICCPR and ECHR apply. For reasons of nationality, is also given a straightforward and inclusive interpretation, not restricted to citizenship, and so overlaps with race.
A particular social group has given rise to more litigation and is open to interpretation than any other Convention reason. As a general starting point for determining whether a claimant comes within a social group, which could be protected by the Convention, it is useful though not essential to consider the principle of ejusdem generis. The US board of Immigration Appeals in the case of Acosta [1985] used the ejusdem generis rule to identify the key characteristics of the other Convention reasons. It was outlined, “The shared characteristics might be an innate one such as sex, colour, or kinship ties, or in some circumstances it might be a shared experience such as former military leadership or land ownership.” Similar qualities were identified in Attorney General for Canada v Ward [1993]. Shah and Islam is the leading case in the UK on identifying a particular social group. It was clear that in these cases the women faced persecution for reasons of their gender. However, gender is not a conventional reason. The Court of Appeal held that they were not members of a particular social group. One reason for this was a doctrine propounded that the members of the group must associate with each other, there must be some cohesiveness, interdependence or co-operation, which makes them a social group. The social group that was found to be in this case was ‘women in a society that discriminates against women’.
Lord Hoffman noted in Shah and Islam that it is odd that gender is not a convention reason. Harvey implies the same conception by stating that the definition is ‘limited.’ Its absence lies behind the discussion of the recognition of rape as persecution. However, in the absence of gender from the Convention itself, case law has developed ways of including gender-specific persecution. The UNHCR guidelines on the meaning of ‘particular social group’ point out that the case law in some jurisdictions has recognized ‘women’ as a social group.], for example in Liaquat [2002]. The implication with this however, is that the applicant must still show a risk of persecution for reasons of her membership of that group (2002 para 10). This demonstrates how ‘law’ displaces over ‘social reality,’ in situations whereby this may not be able to be proved, and the victim has to prolong their suffering, because of the ‘law,’ and yet persecution cannot be eradicated because it is the ‘social reality.’ Shah and Islam has been used with varying degrees of success in other situations with women. In R v SSHD [2002], the claimant sought to argue that as a woman, who had suffered double rape by armed forces that killed her son, she was a member of a particular social group. This was because rape by soldiers was common and uncontrolled in that locality. The adjudicator had found that the rape was for sexual gratification, and once again this argument prevailed before the Court of Appeal, who saw no merit in the argument that women in that locality were a social group. They saw the situation as one of uncontrolled lawlessness by soldiers and did not construe this in the light of discrimination. This was in part because there was not the extensive evidence of women’s position that had been before the House of Lords in Shah and Islam, so one can speculate that in a comparable situation further evidence of discrimination could make a difference to the outcome. However, not in all situations can one gather the burden of this further evidence that is needed to reverse the outcome, another justification of how the ‘law’ negatively displaces ‘social reality.’ The burden of proof is on the appellant, as well as the standard of proof in both adjudicator and tribunal hearings (Dhaka v. Shamin Box [2002] UKIAT 02212). It has been argued however, by Juss, that this standard is not always applied. In Walayat Begum v. Visa Officer Islamabad, the tribunal had before it the passport of the appellant’s first wife whom he claimed had died. The passport was endorsed : “The holder of this passport has died. Passport has been cancelled and returned. There was also other evidence but the tribunal held “There is no really direct or solid evidence that Manzoor Begum has died. Clayton insists that this seems to be a standard higher than the balance of probabilities and decisions are still often made without reference to the standard of proof.
Shah and Islam expressly laid the formulation for resolving some of the inconsistencies that had bedevilled claims of asylum based on sexuality. Claims from homosexuals had been denied and granted on the basis of particular social group, but there had been no authoritative judgement on the matter. The issue was and is seriously in need of clarification according to Outrage!, fourteen gay asylum seekers committed suicide between 2001 and 2004 rather than return after the failure of their claim. Although the comments of their Lordships in Shah and Islam must be regarded as obiter, they said, and it is the inescapable conclusion of their reasoning in the case, that homosexuals may constitute a social group if, as a group defined by their sexuality, they suffer discrimination.
Groups only defined by the common factor of their persecution, were not included in the definition of 'social group', as this would run contrary to the purpose of the Refugee Convention to protect not 'anyone who is persecuted' but only those persecuted for a particular reason. Clayton argues that the problem is defining a group without reference to persecution, which similarly is the problem that Harvey incorporates as ‘a limited conception.’ Savchenkov [1996] is a case, which supports the proposition that the group must exist independently of the persecution and groups such as ‘women stoned to death for adultery’ or ‘women subject to domestic violence without redress’ incorporates the persecution into the definition of the group. Particular social groups may overlap with political opinion, for example in a significant number of cases, attempting to establish social group or imputed political opinion on the basis of either refusal to participate in criminal activity or of being a hunted witness to a criminal act. Guidance was given in the Tribunal case of Gomez 00/TH/02257 on the characteristics of a political opinion: “To qualify as political, the opinion in question must relate to the major power transactions taking place in that particular society.” Like social group, political opinion must be construed in the context of the society in which it arises. As Clayton says, ‘In the UK for example, it would not constitute political opinion to refuse the request of a common criminal to kill for him. However, to refuse to do the same at the request of say, Special Branch, could be a political action and might suggest a political opinion.’ Goodwin-Gill suggests a broader definition of political opinion as one ‘on any matter in which the machinery of the state, government and policy may be engaged.’ (1996:49)
In Acero-Garces the appellant had witnessed the murder of a policeman and since then he had been subject to serious threats and harassment. This had to be seen against the background in Colombia of the drugs cartels, in the words of the Tribunal ‘a power unto themselves. The links between the narcotic industry, crime and the government is very thoroughly documented’. The tribunal found that she risked persecution for reasons of political opinion, ‘that the appellant is seen to be on the side of law, order and justice and against disorder, chaos and injustice; and it is these dark forces that control the government.’ Gomez disapproved of the attempt in Acero-Garces to create a fixed category of persons on the side of law order and justice. The Tribunal said ‘reference, Star Wars-style, to “dark forces” does not serve the interests of objective decision-making.’ This should not have been regarded as a political position. Where social group has been used in these kinds of situations it has tended not to be a successful argument, as for instance in Savchenkov [1996] Imm AR 28 CA the appellant argued unsuccessfully that he was a member of the group of individuals whom ‘the mafia seeks to recruit and who refuse.’ These are examples of some of the implications, which displace ‘social-reality.’
Conscientious objection as a form of political opinion has generated a volume of case law from which certain principles have been distilled. Prosecution for avoidance of military service is not regarded as persecution unless the punishment is disproportionate or is inflicted or impacts in a discriminatory way. For instance, some countries, including the USA, still maintain the possibility of the death penalty for refusal to serve. Refusal to undertake military action which is against international law can found refugee status. Lord Bingham in Sepet and Bulbul states established law in this way: “There is compelling support for the view that refugee status should be accord to one who has refused to undertake compulsory military service on the grounds that such a service would or might require him to commit atrocities or gross human rights abuses or participate in a conflict condemned by the international community, or where refusal to serve would earn grossly excessive or disproportionate punishment.”
The cases of Radivojevic and Lazarevic [1997] 2 All ER 723 were heard with Adan and Nooh, and concerned objection to military service. Here the appellants objected to service in the former Yugoslavia in an action that was internationally condemned. However, it was held in the Court of Appeal that even in such a conflict, the individuals themselves must object to the condemned action on principle, not just be ‘oppertunistic draft evaders’ in order to obtain asylum. As Clayton puts it, “at one end of the spectrum, refusing military service in violation of international law may found refugee status, and at the other, refusing military service because of a wish not to fight will not. In between are the contested areas.” In the light of the finding in Sepet and Bulbul the House of Lords judgement found that there was no human right of conscientious objection, and that their Lordships considered that punishment for refusal of military service would not amount to persecution per se.
In addition, a soldier cannot claim refugee status on account of risks from terrorists, (Fadli v SSHD [2001] Imm AR 392). Being a soldier complicatedly entails taking the risk of losing one’s life in the service of one’s country, and this is no different if the enemy is an internal one, (the GIA, a fundamentalist group in Algeria) however, conditions of military service may be such as to amount to persecution if they are inhuman.
To conclude, as the text of the refugee definition constitutes what might be described as the boundary of its application. Within those limits textual analysis can only take us so far towards a workable interpretation of the refugee definition. Quite apart from the question of whether the plain meaning is true to either the intentions of the drafters or the values they sought to serve, such textual analysis is simply inadequate to respond to the myriad circumstances that bring asylum seekers to invoke refugee status. For practical reasons alone, we must additionally look elsewhere for guidance.
Tuitt argues that the legal construction of ‘refugeehood’ as ‘exile’ - the refugee as ‘someone who is outside of his country of nationality’ or ‘is compelled to leave his place of nationality or habitual residence’ fails to take into account the conditions which may give rise to the need for humanitarian assistance in the face of systematic abuse of human rights. She continues to state, “Controlling spaces, in the sense of the ability to achieve exile, is far from being a privilege which many who require protection can claim, although most would unhesitatingly claim to deserve the protection available to refugees. The world is conceptualised in terms of space and refugees, like others, occupy that space and have greater or lesser control over it. However, to determine the meaning of refugeehood according to spatial concepts, as we presently do, is to render refugees unique occupiers and controllers of space which accords ill with the reality of the everyday existence of the majority - women and children”. She argues that “‘classic’ refugees, emerging mostly from the ranks of revolutionary and nationalistic movements or established religious organisations, come from a world seldom inhabited by women, for example, whose politics, even today take a very different form from the ‘publicly active religious, racial and nationalistic groupings’ so common to those that successfully seek and gain asylum. Thus, although it is a gender-neutral history, its neutral register nevertheless, speaks of the taking of asylum by men”. Thus “diverse groups - albeit united by a shared sense that the political or religious contexts of their lives made it impossible for them to remain in their countries of nationality or domicile - were distinguished by their will and, above all, by their ability to move”.
In short, Tuitt argues that “the concept of refugee is one traditionally determined by notions of space, in particular the spatial activity of movement is her signifier, yet territorial boundaries, cultural perceptions, age and disability all conspire to curtail movement in spatial terms and constantly to withhold the ‘official’ designation ‘refugee’ from those most deserving of it”.
The object of Tuitt’s critique us the legal construction of the refugee as ‘displaced’ - ‘externally’ notice the refugee definition itself does not cover ‘internal displacement’ - based on the model of ‘classic’ male political refugees, Cohen (“No-One is Illegal 2002) focuses upon the distinction between the ‘refugee’ and the ‘economic’ migrant as not recognising the realities of forced migration. He argues: “it is necessary to begin a critique of the narrow definition applied to refugees”. Referring to the UN Convention definition which is the source of the legal justification of the exclusion of economic migrants without breaching the international norms relating to ‘refugee’ status and tracing this exclusion through The United Nations High Commission for Refugees Handbook on Procedures and Criteria for Determining Refugee Status he argues, “realistically there is no distinction between economic and political refugees - or at least no distinction that has any meaning”.
One of the solutions that have attempted to diminish the dislodgement between ‘law’ and ‘social- reality’ is the fact that the ‘social group’ category was open-ended enough to allow for evolution of the refugee definition to include groups or individuals not considered at the time of drafting. The social group category was further developed by legal scholars and case law in the mid and late 1990s, broadly defining social groups as 'groups defined by some innate or unchangeable characteristic' and 'cohesive, homogenous groups in voluntary association for reasons fundamental to their rights'.
Textbook on “Immigration and Asylum Law” Gina Clayton. The Refugee Definition. Page 429
Textbook on “Immigration and Asylum Law” Gina Clayton. The Refugee Definition. Page 429
Textbook on “Immigration and Asylum Law” Gina Clayton. The Refugee Definition. Page 429
Textbook on “Immigration and Asylum Law” Gina Clayton. The Refugee Definition. Page 429
Textbook on “Immigration and Asylum Law” Gina Clayton. The Refugee Definition. Page 460
Textbook on “Immigration and Asylum Law” Gina Clayton. The Refugee Definition. Page 463
Textbook on “Immigration and Asylum Law” Gina Clayton. The Refugee Definition. Page 463
Phil Harris’ Lecture Notes on ‘Persecution’
Textbook on “Immigration and Asylum Law” Gina Clayton. The Refugee Definition. Page 469 “uk.gay.com”
Phil Harris’ Lecture Notes on ‘Persecution’
Textbook on “Immigration and Asylum Law” Gina Clayton. The Refugee Definition. Page 474
Textbook on “Immigration and Asylum Law” Gina Clayton. The Refugee Definition. Page 477
Textbook on “Immigration and Asylum Law” Gina Clayton. The Refugee Definition. Page 477
Patricia Tuitt ‘Rethinking the Refugee Concept’ in Refugee Rights and Realities’ Twomey and Nicholson 1999 CUP (Tuitt1999 p.115).