Although the requirement to show a well-founded fear of “being persecuted” is at the heart of the refugee definition, the Refugee Convention does not define or elucidate the meaning to be given to this concept. Indeed, it is generally acknowledged that the drafters of the Convention intentionally declined to define “being persecuted” because they recognized the impossibility of enumerating in advance all of the forms of maltreatment that might legitimately entitle persons to benefit from international protection. The need for a flexible approach to “being persecuted” is especially important today given the duty under the 1967 Protocol to apply the refugee definition in a manner that ensures its relevance to “new refugee situations.”

Yet the importance of interpretive flexibility must be balanced against the imperatives of the rule of law, militating against any approach that “abandon[s] the quest for standards” in interpreting what is perhaps the key term of the treaty. Rather, as Lord Justice Laws explained in Sepet:

The challenge, then, is to adopt an approach to interpretation of “being persecuted” that is flexible, yet which provides guidance based on objective principle. The goal must be to understand the core construct of “being persecuted” as “a living thing, adopted by civilised countries for a humanitarian end which is constant in motive but mutable in form.”

The text of the Refugee Convention requires that a person’s well-founded fear of being persecuted be “for reasons of” an enumerated ground: race, religion, nationality, membership of a particular social group, or political opinion. Under the Convention, if the peril a claimant faces – however wrongful it may be – cannot somehow be linked to her civil and political status and resultant marginalization, the claim to refugee status must fail. Put succinctly, refugee law requires that there be a nexus between who the claimant is or what she believes and the risk of being persecuted in her home state.

In practice the corollary is that many involuntarily displaced persons do not fall within the ambit of the Refugee Convention. As recognized by the drafters,

Only a person outside her own state can qualify as a Convention refugee. The alienage requirement of the definition – limiting status to an at-risk person who is “outside” her own country – derives from the limited aim of the Refugee Convention to deal “only with the problem of legal protection and status.” The treaty was conceived not to relieve the suffering of all forced migrants, but rather to assist a subset comprised of persons who were “outside their own countries [and] who lacked the protection of a Government.” The intent was to provide this group of enforced expatriates with legal status and protection to offset the disabilities of presence outside their own country until they could acquire new or renewed national protection. Internally displaced persons, while objects of humanitarian concern, were thought to raise “separate problems of a different character,” since such persons did not suffer from the legal disabilities of enforced alienage.

The drafters’ focus on enfranchising persons forced abroad also reflected a candid appraisal that the broader problem of persons dislocated within their own countries would demand a more sustained commitment of resources than was then available to the international community. Indeed, there was concern that the inclusion of internally displaced persons in the international protection regime might prompt states to shift responsibility for the well-being of large parts of their own population to the world community. The obligations of states under the Convention would thereby be increased, inclining fewer states to participate in the treaty regime.

Refugee law is not simply a system designed to enable persons to escape the risk of serious harm. While the duties of state parties to the Refugee Convention are, of course, engaged only when there is a risk of serious harm of the kind discussed in the preceding chapter, the more fundamental purpose of the Refugee Convention is

More specifically,

Refugee law is thus principally concerned with providing a remedy to a fundamental breakdown in the relationship between an individual and her state. As described in Chapter 1, the Refugee Convention’s overarching goal is to provide a new national home to persons driven from their own country by the risk of being persecuted. Specifically, refugee law seeks to enfranchise an at-risk subset of persons who are “outside their own countries [and] who lackthe protection of a government.” It provides these involuntary migrants with legal status and protection to offset the disabilities of presence outside their own country until and unless they acquire new or renewed national protection. This commitment to providing surrogate or substitute national protection is grounded both in the basic commitment of the interstate system to ensuring that all individuals have a nationality in the legally recognized form of citizenship, and are thus effectively “allocated” to a state, and also in the recognition that nationality provides the essential means by which individuals are able to avail themselves of the full range of protections established by international law.

The hallmark of a Convention refugee is her inability or unwillingness to return home due to a “well-founded fear of being persecuted.” Not all forced migrants qualify as refugees in law: only those who face a genuine risk of being persecuted for a Convention reason in their own country are entitled to the rights set out in the Convention. The scope and meaning of the “being persecuted” inquiry – which includes both identification of a relevant serious harm and a concomitant failure of state protection – will be discussed in Chapters 3 and 4, while this chapter addresses the notion of well-founded fear.

It is generally asserted that “well-founded fear” entails two requirements. The first criterion is that the person seeking recognition of refugee status perceive herself to stand in “terror of persecution”; her very personal response to the prospect of return to her home country must be an extreme form of anxiety that is neither feigned nor overstated. Second, this subjective perception of risk must be consistent with available information on conditions in the state of origin, as only those persons whose fear is reasonable can be said to stand in need of international protection. Thus, for example, the UN High Commissioner for Refugees (“UNHCR”) opines:

Refugee law may be the world’s most powerful international human rights mechanism. Not only do millions of people invoke its protections every year in countries spanning the globe, but they do so on the basis of a self-actuating mechanism of international law that, quite literally, allows at-risk persons to vote with their feet. This is because, as the United Nations High Commissioner for Refugees (“UNHCR”) has insisted, refugee status is not a status that is granted by states; it is rather simply recognized by them:

A person who is a refugee at international law is thus entitled in any of the nearly 150 state parties to the refugee regime to claim a powerful catalog of internationally binding rights – including not only critical civil rights, but also socio-economic rights and rights that enable pursuit of a solution to refugeehood. Because refugee status inheres by virtue of facts rather than formalities, the entitlement to these rights persists until and unless an individual is found not to be a refugee.

The portal to this uniquely valuable protection regime is the definition of a refugee codified in the 1951 Convention relating to the Status of Refugees, made both universal and applicable to contemporary refugees by the 1967 Protocol relating to the Status of Refugees (the “Convention refugee” definition). Article 1A(2) of the Convention provides that the term “refugee” shall apply to any person who