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> The Convention Reasons
The Convention reasons
The Convention reasons are central to the Refugee Convention. There has to be a causal link between the harm suffered and one of the five Convention reasons.
Race
Professor Hathaway's The Law of Refugee Status stated that "Race" is interpreted to include "...all persons of identifiable ethnicity".
The Qualification Directive states that ‘the concept of race shall in particular include considerations of colour, descent or membership of a particular ethnic group’.
Religion
The Qualification Directive offers a very inclusive definition of religion:
“the concept of religion shall in particular include the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief”
Nationality
The Qualification Directive definition of nationality extends conventional understanding of the concept:
“the concept of nationality shall not be confined to citizenship or lack thereof but shall in particular include membership of a group determined by its cultural, ethnic, or linguistic identity, common geographical or political origins or its relationship with the population of another State”.
Membership of a particular social group
This criteria requires an individual to possess “an immutable characteristic” which is either beyond their power to change or one that it would be contrary to their fundamental human rights for them to give up.
The House of Lords held in Shah and Islam that women in Pakistan constituted a particular social group because they share the common immutable characteristic of gender, they were discriminated against as a group in matters of fundamental human rights and the State gave them no adequate protection because they were perceived as not being entitled to the same human rights as men.
The Qualification Directive adopts the Shah and Islam approach but also elevates societal attitude to a strict requirement; both have to be shown to establish that there is a social group. This is also reflected in the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 at regulation 6(d) and (e):
(d) a group shall be considered to form a particular social group where, for example:
(i) members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and
(ii) that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society;
(e) a particular social group might include a group based on a common characteristic of sexual orientation but sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the United Kingdom ;
The social group must not be defined by the persecution although the persecution may make the group identifiable: SSHD v K; Fornah v SSHD [2006] UKHL 46.
Political opinion
Express political opinion is argued to be the most cited Convention reason.
The Qualification Directive provides a relatively broad definition:
‘the concept of political opinion shall include the holding of an opinion, thought or belief on a matter related to the potential actors of persecution mentioned in regulation 3 [see actors of persecution, above] and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the person’
Attributed Convention reasons
Paragraph 81 of the UNHCR Handbook demonstrates that an opinion need not in fact be held, but may be externally ascribed to an individual. In the context of political opinion, this has long been referred to as ‘imputed’ political opinion in the UK .
It is re-titled ‘attributed’ political opinion in the Qualification Directive and features explicitly in the implementing regulations at regulation 6(2):
‘In deciding whether a person has a well-founded fear of being persecuted, it is immaterial whether he actually possesses the racial, religious, national, social or political characteristic which attracts the persecution, provided that such a characteristic is attributed to him by the actor of persecution.’
Race
Professor Hathaway's The Law of Refugee Status stated that "Race" is interpreted to include "...all persons of identifiable ethnicity".
The Qualification Directive states that ‘the concept of race shall in particular include considerations of colour, descent or membership of a particular ethnic group’.
Religion
The Qualification Directive offers a very inclusive definition of religion:
“the concept of religion shall in particular include the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief”
Nationality
The Qualification Directive definition of nationality extends conventional understanding of the concept:
“the concept of nationality shall not be confined to citizenship or lack thereof but shall in particular include membership of a group determined by its cultural, ethnic, or linguistic identity, common geographical or political origins or its relationship with the population of another State”.
Membership of a particular social group
This criteria requires an individual to possess “an immutable characteristic” which is either beyond their power to change or one that it would be contrary to their fundamental human rights for them to give up.
The House of Lords held in Shah and Islam that women in Pakistan constituted a particular social group because they share the common immutable characteristic of gender, they were discriminated against as a group in matters of fundamental human rights and the State gave them no adequate protection because they were perceived as not being entitled to the same human rights as men.
The Qualification Directive adopts the Shah and Islam approach but also elevates societal attitude to a strict requirement; both have to be shown to establish that there is a social group. This is also reflected in the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 at regulation 6(d) and (e):
(d) a group shall be considered to form a particular social group where, for example:
(i) members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and
(ii) that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society;
(e) a particular social group might include a group based on a common characteristic of sexual orientation but sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the United Kingdom ;
The social group must not be defined by the persecution although the persecution may make the group identifiable: SSHD v K; Fornah v SSHD [2006] UKHL 46.
Political opinion
Express political opinion is argued to be the most cited Convention reason.
The Qualification Directive provides a relatively broad definition:
‘the concept of political opinion shall include the holding of an opinion, thought or belief on a matter related to the potential actors of persecution mentioned in regulation 3 [see actors of persecution, above] and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the person’
Attributed Convention reasons
Paragraph 81 of the UNHCR Handbook demonstrates that an opinion need not in fact be held, but may be externally ascribed to an individual. In the context of political opinion, this has long been referred to as ‘imputed’ political opinion in the UK .
It is re-titled ‘attributed’ political opinion in the Qualification Directive and features explicitly in the implementing regulations at regulation 6(2):
‘In deciding whether a person has a well-founded fear of being persecuted, it is immaterial whether he actually possesses the racial, religious, national, social or political characteristic which attracts the persecution, provided that such a characteristic is attributed to him by the actor of persecution.’
