Hathaway, identifies six elements of the refugee convention definition, alienage, genuine risk, serious harm, failure of states protection ground for persecution, needing and deserving protection. While refugee advocates and the UNCHR reiterate that well –founded fear has both subjective and objective elements, Hathaway is of the idea that there should be an objective inquiry into the actual risk faced by the individual. Pg 65). The 1951 refugee convention says nothing about procedures for determination of refugees.
Since persecution and refugee states go hand in hand than the grounds that quality a person for refugee status can be said to provide further definition of persecution. Not all persecution gives rise to a valid asylum claim. People fleeing national, international wars, famine and natural disaster are offered humanitarian aid but do not fall within the 1951 convention definition of Refugee status. Asylum can only be claimed by refugees. Membership of a particular social group is difficult to define and is being used to push the boundaries of refugee law into gender related areas, domestic violence and enforced family planning policies.
The UNCHR handbook provides a definition of social group as. ’ a particular social group has persons of similar background, habits or social status’, (Paragraph 77) . In a landmark decision, in Shah and Islam, the UK court gave amore specific definition of membership of a particular social group. The court ruled that Pakistani women who had allegations of false adultery leveled against them are members of a particular social group. This is because they are not protected and are discriminated against by the state.
Mere membership of a social group is not sufficient to achieve refuge status; the question of persecution comes up again. There must be a form of harm which can be characterized as persecution. ‘Well-founded fear’ may be based on an experience that is personal experience and that of another individual in a similar situation. Though the UNCHR recognizes that there is no universal definition of persecution, there is consensus that any individual who is mistreated has been persecuted when the abuse or threat is considered a violation of human rights.
International human rights instruments codify the right of a woman to be free from gender-based discrimination. In spite of this, there have been continued misevaluations of gender-related claims human rights where women are concerned. The key to recognition of a woman’s ‘well founded fear’ is linking persecution and violation of human rights. An example of misevaluation of a gender-related claim is a recent decision in Canada where an Iranian woman, had four confrontations with Iranian authorities due to allegedly disobeying Islamic dress law.
The Refugee Division found that she had met with what all women in Iraq have to cope with daily; ‘Petty and arbitrary harassment by a puritanical regime’. It concluded that dress law did not violate any human right, and that the four incidents were ‘harassment’ not ‘persecution’. This decision shows a failure to see that dress restriction is a violation of the right to freedom of religion and conscience. It also does not consider the penalty for the violation of the dress rule which is disproportionate to the infraction (Seventy five lashes with no procedural guarantees).
This definitely constitutes persecution. In another case, a Sierra Leone, appellant sought asylum because of the fear of Female Genital Mutilation, (FGM). FGM reinforces and expresses the inferior status of women as compared with men in the Sierra Leone society, FGM is condemned as cruel, discriminately and degrading long series of international instruments, declarations resolutions, paid pronounced to and recommendation. It is a cultural practice relating to the right to be free from torture.
In this case, the secretary of state contends that such treatment though persecutory is not for reasons of membership of a particular group, and so the appellants fall outside the definition of a refugee. The feminists view points out the Refugee convention does not use gender persecution as is highlighted in case above where, asylum has been denied on the basis of failure to belong to a particular group. Feminists further assert that a woman may be persecuted as a woman in the form of rape and FGM.
Women should therefore be considered a social group and in the case above specifically, the appellant belongs to a social group which is young Sierra Leonean woman. There has been in resent years a regression in international refugee law with restrictive definition of the tem refugee resulting in large gaps in protection of international refugees. It should be noted that economic immigrants and victims of natural disasters though displaced from their countries are not included in the definition of refugee.