In the 1951 Geneva Convention the term refugee applies to any person who, due to
"a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. In the case of a person who has more than one nationality, the term 'the country of his nationality" shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national" [Convention of 1951, Article 1A (2)]
Signatories to the Convention undertake to protect refugees by allowing them to enter and granting temporary or permanent residence status. The United Nations High Commission for Refugees (UNHCR) and the Executive Committee of the High Commissioners Programme have developed guidelines on the interpretation of the terms of this definition. In 1967 the Protocol Relating to the Status of Refugees incorporated post-1951 refugees and explicitly included those from outside Europe in the definition. Some countries, however, still define refugees by the geographic limitations of the 1951 definition and do not recognize non-European refugees. In 1969 a convention of the Organization of African Unity, applying only to African countries that have signed it, extended the definition to include as reason for refugee status "external aggression, occupation, foreign domination or events seriously disturbing public order in either part or whole" of a country. The Cartegena Declaration of 1984 broadened the scope of the refugee declaration in a similar manner for countries in Latin America.
Based on these conventions, the refugee definition is commonly understood to include three essential elements:
- there must be a form of harm rising to the level of persecution, inflicted by a government or by individuals or a group that the government cannot or will not control;
- the person’s fear of such harm must be well-founded — e.g. the U.S. Supreme Court has ruled that a fear can be well-founded if there is a one-in-ten likelihood of its occurring;
- the harm, or persecution, must be inflicted upon the person for reasons related to the person’s race, religion, nationality, political opinion or membership in a particular social group (the nexus).
What is the difference between a refugee and an asylum seeker?
Asylum seekers are people who move across borders in search of protection, but who may not fulfil the strict criteria laid down by the 1951 Convention. Asylum seeker describes someone who has applied for protection as a refugee and is awaiting the determination of his or her status. Refugee is the term used to describe a person who has already been granted protection. Asylum seekers can become refugees if the local immigration or refugee authority deems them as fitting the international definition of refugee.
The definition of asylum seeker may vary from country to country, depending on the laws of each country. However, in most countries, the terms asylum seeker/asylee and refugee differ only in regard to the place where an individual asks for protection. Whereas an asylum seeker asks for protection after arriving in the host country, a refugee asks for protection and is granted this protected status outside of the host country.
The international definition of refugee has been interpreted primarily in the context of male asylum-seekers, to the prejudice of women refugees. The claims of women asylum-seekers often differ from those of men in several respects. First, women often suffer harms which are either unique to their gender, such as female genital mutilation or forcible abortion, or which are more commonly inflicted upon women than men, such as rape or domestic violence. Second, women’s claims differ from those of men in that they may suffer harms solely or exclusively because they are women, i.e., as a result of their gender. And third, women often suffer harm at the hands of private individuals (e.g. "honor killings"), rather than governmental actors.
The distinctions between the more traditional claims of male asylum seekers, and those of women, have often adversely impacted women asylum-seekers. Decision-makers often fail to recognize that harms unique to women — such as forced marriage or honor killings — may constitute persecution. They are also resistant to the developing jurisprudence which recognizes that harms inflicted primarily because of gender may come within the protection of international or domestic refugee law, and that persecution at the hands of private actors can form the basis of refugee protection where there is a failure of state protection.
These developing international human rights and refugee norms provide a basis for extending protection to women asylum-seekers regardless of the distinctions between their claims and the more traditional claims of male applicants. The United Nations High Commissioner for Refugees (UNHCR) has provided guidance in cases of women asylum-seekers. Notwithstanding these developments, the claims of women asylum-seekers continue to meet denials due to erroneous interpretations of the refugee definition by decision-makers, as well as a fundamental lack of understanding of the applicable human rights norms and the relevant country conditions.