Chapter 5 - The Well-Founded Fear of Being Persecuted

Summary

INTRODUCTION

According to the refugee definition in Article 1A(2) Refugee Convention, a refugee must have a well-founded fear of being persecuted for reasons of a Refugee Convention ground. This chapter analyses the well-founded fear of being persecuted.

WELL-FOUNDED FEAR

To qualify for refugee status under the Refugee Convention, a person needs to demonstrate a well-founded fear of being persecuted, with “fear” entailing a “forw ard-looking expectation of risk”.

BURDEN OF PROOF AND STANDARD OF PROOF

In many States, the burden of proof in refugee status determination at first instance is on the refugee claimant, while UNHCR argues that the obligation to ascertain and analyse all relevant facts is shared by the applicant and the decision-maker. A shared burden of proof is preferable because it acknowledges the numerous practical challenges which a refugee claimant faces in a foreign legal system and is therefore conducive to realising the Refugee Convention's humanitarian object and purpose of providing international protection. In Belgium, for example, the burden of proof is shared between the asylum applicant and the asylum authorities. This shared obligation is particularly important if the country of origin is experiencing an armed conflict as this makes obtaining documentation more difficult for the refugee claimant.

To prove a well-founded fear of persecution, the standard of “reasonable possibility or chance” is widely accepted in State practice. It is also supported by UNHCR and the literature. However, in a few States, a higher standard of proof seems to be implicitly required regarding refugee claims arising out of armed conflict and other situations of violence. For example, with regard to claims to asylum by people fleeing conflict and violence in El Salvador in the 1980s, the US Board of Immigration Appeals was criticised for subjecting evidence to a higher standard of proof than the “reasonable possibility” standard. Such a higher standard of proof in contexts of armed conflict disregards the wording of the refugee definition which does not distinguish between times of peace and armed conflict and should therefore not be adopted.