What is “persecution” under the Refugee Convention?

In a previous post, we have looked at how the credibility of an asylum claim is assessed here. This post will look at what constitutes persecution for the purposes of the UN Refugee Convention 1951.

In order to fall within the definition of a refugee for the purposes of the Convention, a person must show a well founded fear of ‘persecution’ for reasons of race, religion, nationality, political opinion or membership of a particular social group. The UNHCR Handbook notes at paragraph 51 that there is ‘no universally accepted definition of “persecution” and various attempts to formulate such a definition have met with little success’. Persecution has been defined in general terms in R v Immigration Appeal Tribunal, ex p Jonah [1985] Imm AR 7, where Nolan J adopted the two dictionary definitions of the word: ‘to pursue, hunt, drive’ and ‘to pursue with malignancy or injurious action; especially to oppress for holding a heretical opinion or belief’. This post will examine the legal parameters of persecution.

Discrimination and Persecution

Acts of persecution are defined within Article 9 of the Council Directive 2004/83/EC as acts which are ‘sufficiently serious’ to constitute a ‘severe violation of basic human rights’. This can be either in their ‘nature or repetition’ or through an ‘accumulation of various measures’. Basic human rights are defined here as those which are  non-derogable (so important that they cannot be compromised under any circumstances) under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. These are Article 2 (right to life), Article 3 (prohibition of torture), Article 4 (prohibition of slavery) and Article 7 (no punishment without law).  

Paragraph 2 of Article 9 outlines a number of non-exhaustive examples of what may constitute persecution as defined above:

• acts of physical or mental violence, including acts of sexual violence;
• legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner;
• prosecution or punishment, which is disproportionate or discriminatory;
• denial of judicial redress resulting in a disproportionate or discriminatory punishment;
• prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses as set out in Article 12(2);
• acts of a gender-specific or child-specific nature.

These categories provide a useful starting point. However, the question of whether there is persecution in any given case depends upon a fact-sensitive analysis. In particular, although discriminatory measures (as listed above) may amount to persecution, it may not be sufficient in itself. If someone is discriminated against on one of the convention grounds, they will not necessarily be entitled to protection under the Refugee Convention unless that discrimination amounts to persecution for a convention reason.

How is discrimination distinguished from persecution? The Home Office policy instruction on sexuality-based asylum claims recommends an assessment ‘depending on the facts of the case’. The guidance states that a discriminatory measure may amount to persecution if the discrimination has resulted in ‘sufficiently serious consequences’ for the person concerned. The following examples are given:

• Serious legal, cultural or social restrictions on rights to, or ability to earn, a livelihood;
• Serious legal, cultural or social restrictions on rights to, or ability to enjoy, private and family life;
• Serious legal, cultural or social restrictions on rights to, or ability to enjoy, freedom of opinion, expression, association or assembly;
• Restrictions on political enfranchisement;
• Restrictions on the choice to practise or not practise a religion;
• Restrictions on access to public places;
• Restrictions on access to normally available educational, legal (including law enforcement), welfare and health provisions;

The weight of one or more of these factors may indicate that discrimination has reached the elevated threshold of persecution but this is not assumed. Discrimination and societal disapproval may not be sufficient in themselves to establish persecution. However, ‘if expressed in an extreme way and without protection from the state, then outright hostility, general discriminatory measures and the cumulative effects of harassment, threats and restrictions can constitute persecution’ (p.16). 

“Persecution” and the state

In the case of Islam Shah, a similar approach is taken to defining persecution, with Lord Steyn stating that ‘everything depends on the evidence and findings of fact in a particular case’. However, more general guidance is given in the form of emphasis on the absence of state protection. 

Lord Hoffman defines persecution in the formula “Persecution = Serious Harm + the Failure of State Protection”. He points out that, in establishing whether there is persecution, the failure of a state to provide protection as a result of its discriminatory policy is a relevant factor. Hoffman provides the example of a shopkeeper whose livelihood is destroyed by opportunistic rivals. The fact that the shop keeper is not protected by the state in Nazi Germany is on account of the fact he is Jewish. Here, ‘an essential element in the persecution, the failure of the authorities to provide protection, is based upon race’.  As is clear from these comments, although discrimination will not amount to persecution, it is a substantial contributing factor, including in the cases of governments who refrain from acting to protect threatened groups.  The UNHCR handbook emphasises the failure of state protection at paragraph 98: ‘denial of protection may confirm or strengthen the applicant’s fear of persecution and may indeed be an element of persecution’. 

“Persecution” may elude strict definition but it is both flexible and adaptive to circumstance. Although discrimination is not enough to constitute persecution for the purposes of an asylum claim, it is a relevant factor. In particular, the absence of state intervention to protect from persecution may be especially relevant.  

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