1.2 Determining refugee status under UNHCR’s mandate

Adjudication of the refugee claim

Maintaining high quality RSD is essential to ensuring that the international community as a whole, including host, resettlement and donor states, NGOs and displaced persons, continue to have confidence in UNHCR’s case processing and decision-making. This confidence is critical to safeguarding UNHCR’s ability to exercise its mandate effectively, including with a view to preserving access to protection and durable solutions for refugees.

As such, RSD must be undertaken by qualified and trained RSD or protection colleagues to ensure the integrity of the process. In addition, resettlement colleagues should have a solid understanding of how the RSD interview and assessment is undertaken. To this end, they should be familiar  with the refugee eligibility criteria in the 1951 Convention and its 1967 Protocol (hereafter “the 1951 Convention”), as well as UNHCR’s RSD Procedural Standards and the guidance set out below.

The core principles and standards set out in UNHCR’s RSD Procedural Standards are applicable whenever a recognition occurs under the mandate, be it through regular, simplified, accelerated RSD or merged case processing modalities, including merged RSD-Resettlement.

Refugee status pursuant to the 1951 Convention

The principal legal basis for recognition under UNHCR’s mandate is the 1951 Convention according to which a refugee is any person who:

“owing to 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” (Article 1A (2)).

Key elements of the eligibility criteria for refugee status under the 1951 Convention

Well-founded fear

In light of the individual profile and experiences of the Applicant, relevant country of origin information (COI) and the experience of similarly situated individuals in the country of origin, it should be assessed whether there is a reasonable possibility that the Applicant would experience harm if returned to the country of nationality or habitual residence. This forward-looking assessment must be based on the established material facts relating to the Applicant’s profile and experiences and should identify the harms the Applicant is reasonably likely to face on return. Where the risk of harm emanates from non-State agents of persecution, an examination of whether State authorities are willing or able to provide protection will also be required.

Persecution

The harm(s) identified, individually or cumulatively, should be determined to be sufficiently serious to constitute persecution. This analysis is conducted by reference to relevant international human rights standards and principles and in light of the specific circumstances of the individual.

Reasons for persecution

The persecution which has been determined to be reasonably possible must be linked to (“for reason of”) one or more of the 1951 Convention grounds (i.e. race, religion, nationality, membership of a particular social group and political opinion). The causal link or nexus requirement is also met where State protection is denied for reason of one of the 1951 Convention grounds.

Exclusion

International refugee law excludes from refugee status certain persons who would otherwise qualify as refugees according to the above definition, but who are nevertheless denied international protection under Article 1D (first paragraph), Article 1E or Article 1F of the 1951 Convention. An exclusion assessment must be undertaken if there is reliable information indicating that the Applicant may fall within the scope of one of the exclusion clauses of the 1951 Convention.

• Exclusion under Article 1D (first paragraph) applies to Palestinian refugees who are receiving protection or assistance from the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA).

• Exclusion under Article 1E applies where an individual who fulfils the criteria for inclusion under Article 1A (2) of the 1951 Convention is not in need of international protection because he/she has taken residence in another country and is enjoying rights akin to those of nationals of that country.

• Exclusion under Article 1F concerns persons who are considered undeserving of international refugee protection on the grounds that there are serious reasons for considering that they have engaged in acts that bring them within the application of the exclusion clauses in Article 1F(a), (b) or (c) of the 1951 Convention. See below Exclusion from refugee status under Article 1F of the 1951 Convention.

Refugee status under the broader refugee definition

UNHCR’s mandate encompasses individuals who meet the eligibility criteria under the 1951 Convention and its 1967 Protocol and has been broadened through successive UN General Assembly and ECOSOC resolutions to a variety of other situations of forced displacement resulting from indiscriminate violence or public disorder. In light of this evolution, UNHCR’s competence to provide international protection to refugees extends to individuals who are outside their country of origin or habitual residence and who are unable or unwilling to return there owing to serious threats to life, physical integrity or freedom resulting from generalized violence or events seriously disturbing public order.

For this reason, when conducting RSD under the mandate, UNHCR may recognize individuals under this broader definition who would not otherwise fall within the 1951 Convention definition, provided they do not fall within the scope of one of the exclusion clauses. The profile of individuals who may be refugees under UNHCR’s broader refugee definition is similar to those categories covered by the refugee definitions incorporated in regional refugee instruments in Africa and Latin America. 

UNHCR always assesses eligibility for refugee status under the 1951 Convention definition first before considering eligibility under the broader refugee definition. 

Eligibility pursuant to the right to family unity

Family unity is a fundamental principle of international law. Maintaining and facilitating family unity for refugees helps ensure their physical care, protection, emotional well-being and economic support. The principle of family unity must be upheld both in RSD and resettlement processing.

In the first instance, family members/ dependents of a recognized refugee should themselves be recognized as refugees in their own right if they meet the eligibility criteria, even if they have applied for refugee status as part of a family rather than on an individual basis. There are a number of reasons for this general principle, set out in detail in Unit 5 of the RSD Procedural Standards (Processing Claims based on the right to family unity). In the resettlement context, this can be particularly important in situations where there is a change of Principal Applicant in a Resettlement Case post-submission, due to death or other reasons.

If family members/dependents do not qualify for refugee status in their own right, family unity is preserved through granting derivative refugee status to those family members/dependents based on their relationship to a recognized refugee. To be eligible for derivative refugee status, a relationship of social, emotional and/or economic dependency must exist between a recognized refugee and an Applicant for derivative refugee status.

Close family members/dependents who are nationals or habitual residents of a third country (i.e. neither the country of origin of the Applicant nor the country of asylum) may be granted derivative refugee status if they meet the dependency criteria, even if they do not have protection needs vis-à-vis their own country. 

Close family members/dependents who are nationals of the country of asylum cannot be granted derivative refugee status even where a family/dependency relationship is determined to exist (this scenario is one of the exceptions to the general rule that resettlement is only available to recognized refugees).

Exclusion from refugee status under Article 1F of the 1951 Convention

Under international refugee law, certain persons who would otherwise qualify as refugees are nevertheless denied international protection under the 1951 Convention. Exclusion under Article 1F of the 1951 Convention applies to persons who are deemed undeserving of such protection on account of having committed certain serious crimes or heinous acts.

Article 1F provides that the 1951 Convention “shall not apply to any person with respect to whom there are serious reasons for considering that:

1. he [or she] has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
2. he [or she] has committed a serious non-political crime outside the country of refuge prior to his [or her] admission to that country as a refugee; or
3. he [or she] has been guilty of acts contrary to the purposes and principles of the United Nations.”

Applying Article 1F of the 1951 Convention

Article 1F applies if there are “serious reasons for considering” that the individual concerned has committed or participated in the commission of acts within the scope of this exclusion clause. Clear and credible evidence is required to meet this standard.

Exclusion requires an individualized assessment of the Applicant’s actions and state of mind, including where he/she was a member of a repressive regime or a group that commits or advocates violent crimes, or if he/she took part in an armed conflict in the past. Membership of a group or an organization that commits or incites others to carry out violent crimes is not per se sufficient to exclude a person from refugee status. Exclusion considerations will, however, be triggered for individuals who belong to such groups or organizations, and the individual’s own role and activities within the group may bring him/her within the scope of Article 1F.

Given the exceptional nature and potentially severe consequences of exclusion for the individual, procedural safeguards are particularly important in cases which raise exclusion triggers. These include, in particular, the need for a comprehensive examination of the Applicant’s claim and the right of the individual concerned to respond to information which may form the basis of an exclusion decision, as well as the possibility to submit an appeal. Therefore, such cases should in principle be examined in regular RSD procedures.

Guidance on the interpretation and application of Article 1F of the 1951 Convention can be found in UNHCR’s Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees and the accompanying Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, which complement UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status. For procedural guidance on the application of the Exclusion Clauses, refer to Units 4.7 and 4.8 of the RSD Procedural Standards.