Harmonised application of the definition of the term "refugee" under the Geneva Convention

1) OBJECTIVE

Harmonise application of the criteria for determining refugee status in order to prepare common guidelines for recognition and admission as a refugee in the Member States.

2) UNION MEASURE

Joint position 96/196/JHA of 4 March 1996 defined by the Council on the basis of Article K.3 of the Treaty on European Union on the harmonised application of the definition of the term "refugee" in Article 1 of the Geneva Convention of 28 July 1951 relating to the status of refugees.

3) CONTENT

1. The joint position refers to the 1951 Geneva Convention on refugees and, on the basis of the following points, explains or expands on its provisions where necessary for the purposes of applying the criteria for recognition and admission of refugees.

2. Recognition as a refugee pursuant to Article 1 of the Geneva Convention.

Determination of the status of refugee is based on criteria according to which the competent national bodies decide to grant an asylum-seeker the protection provided for in the Geneva Convention. The joint position in no way affects conditions under which a Member State may, according to its domestic law, permit a person to remain in its territory if his safety or physical integrity would be endangered if he were to return to his country.

3. Individual or collective determination of refugee status.

Each application for asylum is examined on the basis of the facts and circumstances put forward in each individual case and taking account of the objective situation prevailing in the country of origin.

4. Establishment of the evidence required for granting refugee status.

The determining factor for granting refugee status in accordance with the Geneva Convention is the existence of a well-founded fear of persecution on grounds of race, religion, nationality, political opinion or membership of a particular social group. The question of whether fear or persecution is well-founded must be appreciated in the light of the circumstances of each case. It is for the asylum-seeker to submit the evidence needed to assess the veracity of the facts and circumstances put forward. It should be understood that once the credibility of the asylum-seeker's statements has been sufficiently established, it will not be necessary to seek detailed confirmation of the facts put forward and the asylum-seeker should, unless there are good reasons to the contrary, be given the benefit of the doubt.

5. "Persecution" within the meaning of Article 1 A of the Geneva Convention.

The term "persecution" as used in this document is taken from Article 1 A of the Geneva Convention. The term is not defined in the Convention. Nor is a universally accepted definition to be found either in the conclusions of the UNHCR (United Nations High Commissioner for Refugees) Executive Committee or in the legal literature on the subject.

However, it is generally agreed that, in order to constitute "persecution" within the meaning of Article 1 A, acts suffered or feared must:

• be sufficiently serious, by their nature or their repetition: they must either constitute a basic attack on human rights, for example, life, freedom or physical integrity, or, in the light of all the facts of the case, manifestly preclude the person who has suffered them from continuing to live in his country of origin;
• be based on one of the grounds mentioned in Article 1 A: race, religion, nationality, membership of a particular social group or political opinions. Grounds of persecution may overlap and several will often be applicable to the same person. The fact that these grounds are genuine or simply attributed to the person concerned by the persecutor is immaterial.

6. Origins of persecution: persecution is generally the act of a State organ (central States or federal States, regional and local authorities) whatever its status in international law, or of parties or organisations controlling the State. Persecution may take the form of the use of brute force, and may also take the form of administrative and/or judicial measures which either have the appearance of legality and are misused for the purposes of persecution, or are carried out in breach of the law.

7. Legal, administrative and police measures: the joint position defines in detail what authorities may and may not do to define order.

8. Grounds of persecution: the joint position addresses all grounds of persecution (race, religion, nationality, political opinions, social group, with the definitions in each case) which entitle the victim to recognition as a refugee.

9. The fear of persecution need not necessarily have existed at the time of an asylum-seeker's departure from his country of origin. An individual who has no reason to fear persecution on leaving his country of origin may subsequently become a "refugee sur place". A well-founded fear of persecution may be based on the fact that the situation in his country of origin has changed since his departure, with serious consequences for him. In any event, the asylum-related characteristics of the individual should be such that the authorities in the country of origin know or could come to know of them before the individual's fear of persecution can be justified.

10. Cessation of refugee status.

The decision to withdraw refugee status on the basis of Article 1 C of the Geneva Convention is always investigated on an individual basis. The Member States should make every effort, by exchanging information, to harmonised their practice with regard to the application of the cessation clauses of Article 1 C wherever possible.

Last updated: 27.07.2005