The Michigan
Guidelines on Nexus to
a Convention Ground
James C. Hathaway*
Efforts
to promote the contemporary vitality of the Convention refugee definition have
usually focussed on refining our understanding of the circumstances in which an
individual may be said to be at risk of “being persecuted,” or on
giving contemporary relevance to the content of the five grounds upon which
risk must be based—race, religion, nationality, membership of a
particular social group or political opinion. Comparatively little thought has
been given to how best to conceive the causal linkage or nexus between the
Convention ground and the risk of being persecuted. In what circumstances may
the risk be said to be “for reasons of” one of the five Convention
grounds?
The
jurisprudence of many leading asylum states is simply silent on this issue,
while decisions rendered in other states assume that causation in refugee law
can be defined by uncritical analogy to standards in other branches of the law.
Only rarely have senior courts sought carefully to conceive an understanding of
causation of specific relevance to refugee law, including the critical
questions of a standard of causation and the types of evidence which should
inform the causation inquiry.
With a
view to promoting a shared understanding of the basic requirements for the recognition
of Convention refugee status, we have engaged in sustained collaborative study
and reflection on the norms and state practice relevant to the causation
inquiry. This research was debated and refined at the Second Colloquium on
Challenges in International Refugee Law, convened in March 2001 by the
University of Michigan’s Program in Refugee and Asylum Law. These Guidelines
are the product of that endeavour, and reflect the consensus of Colloquium
participants on how the causal nexus to a Convention ground should be
understood in international refugee law.
1. Not
every person who is outside his or her own country and has a well-founded fear
of being persecuted is a Convention refugee. The risk faced by the applicant
must be causally linked to at least one of the five grounds enumerated in the
Convention—race, religion, nationality, membership of a particular social
group or political opinion.
2. In many states, the
requisite causal linkage is explicitly addressed on the basis of the
requirement that a refugee’s well-founded fear of being persecuted be
“. . . for reasons of race, religion, nationality, membership of a
particular social group or political opinion . . .” In other
states causation is not treated as a free-standing definitional requirement,
but rather is subsumed within the analysis of other Convention requirements.
Whether treated as an independent definitional factor or as part of a general
understanding of refugee status, the existence of a nexus to a Convention
ground must be assessed in the light of the text, context, objects and purposes
of the Refugee Convention and Protocol.
3. It is not the duty of
the applicant accurately to identify the reason that he or she has a
well-founded fear of being persecuted. The state assessing the claim to refugee
status shall decide which, if any, Convention ground is relevant to the
applicant’s well-founded fear of being persecuted.
4. The risk of being persecuted may sometimes arise in circumstances where two or more Convention grounds combine in the same person, in which case the combination of such grounds defines the causal connection to the well-founded fear of being persecuted.
5. An individual shall not
be expected to deny his or her protected identity or beliefs in order to avoid
coming to the attention of the State or non-governmental agent of persecution.
6. The causal connection required is between a Convention ground and the
applicant’s well-founded fear of “being persecuted” (in French, “. . . d’être
persécutée
. . .”) The focus on the applicant’s predicament follows
both from the passive voice employed in the official texts of the Convention
and from the Convention’s fundamental purpose of defining the
circumstances in which surrogate international protection is warranted.
7. Because it is the
applicant’s predicament which must be causally linked to a Convention
ground, the fact that his or her subjective fear is based on a Convention
ground is insufficient to justify recognition of refugee status.
8. The causal link between
the applicant’s predicament and a Convention ground will be revealed by
evidence of the reasons which led either to the infliction or threat of a
relevant harm, or which cause the applicant’s country of origin to
withhold effective protection in the face of a privately inflicted risk.
Attribution of the Convention ground to the applicant by the state or
non-governmental agent of persecution is sufficient to establish the required
causal connection.
9. A causal link may be
established whether or not there is evidence of particularized enmity,
malignity or animus on the part of the person or group responsible for infliction or threat
of a relevant harm, or on the part of a State which withholds its protection
from persons at risk of relevant privately inflicted harm.
10. The causal link may also be
established in the absence of any evidence of intention to harm or to withhold
protection, so long as it is established that the Convention ground contributes
to the applicant’s exposure to the risk of being persecuted.
11. Standards of causation developed in
other branches of international or domestic law ought not to be assumed to have
relevance to the recognition of refugee status. Because refugee status
determination is both protection-oriented and forward-looking, it is unlikely
that pertinent guidance can be gleaned from standards of causation shaped by
considerations relevant to the assessment of civil or criminal liability, or
which are directed solely to the analysis of past events.
12. The standard of causation must also
take account of the practical realities of refugee status determination, in particular
the complex combinations of circumstances which may give rise to the risk of
being persecuted, the prevalence of evidentiary gaps, and the difficulty of
eliciting evidence across linguistic and cultural divides.
13. In view of the unique objects and
purposes of refugee status determination, and taking account of the practical
challenges of refugee status determination, the Convention ground need not be
shown to be the sole, or even the dominant, cause of the risk of being
persecuted. It need only be a contributing factor to the risk of being persecuted.
If, however, the Convention ground is remote to the point of irrelevance,
refugee status need not be recognized.
14. The requisite causal connection
between the risk of being persecuted and a Convention ground may be established
by either direct or circumstantial evidence.
15. A fear of being persecuted is for
reasons of a Convention ground whether it is experienced as an individual, or
as part of a group. Thus, evidence that persons who share the applicant’s
race, religion, nationality, membership of a particular social group or
political opinion are more at risk of being persecuted than others in the home
country is a sufficient form of circumstantial evidence that a Convention
ground was a contributing factor to the risk of being persecuted.
16. There is, however, no requirement
that an applicant for asylum be more at risk than other persons or groups in
his or her country of origin. The relevant question is instead whether the
Convention ground is causally connected to the applicant’s predicament,
irrespective of whether other individuals or groups also face a well-founded
fear of being persecuted for the same or a different Convention ground.
17. No
special rule governs application of the causal nexus standard in the case of
refugees who come from a country in which there is a risk of war or other
large-scale violence or oppression. Applicants who come from such a country are
not automatically Convention refugees. They are nonetheless entitled to be
recognized as refugees if their race, religion, nationality, membership of a
particular social group or political opinion is a contributing factor to their
well-founded fear of being persecuted in such circumstances. For example,
persons in flight from war may be Convention refugees where either the reason
for the war or the way in which the war is conducted demonstrates a causal link
between a Convention ground and the risk of being persecuted.
18.
Refugee
status is not restricted to persons who are members of a political, religious
or other minority group. While members of minority groups are in practice more
commonly exposed to the risk of being persecuted than are persons who are part
of majority populations, the only requirement for recognition of refugee status
is demonstration that a Convention ground is a contributing factor to the risk
of being persecuted.
These
Guidelines reflect the consensus of all the participants at the Second
Colloquium on Challenges in International Refugee Law, held at Ann Arbor,
Michigan, USA, on March 23–25, 2001.
James C. Hathaway
Colloquium Convenor
University of Michigan
T. Alexander Aleinikoff
Georgetown University
Rodger P.G. Haines, Q.C.
Colloquium Chair
University of Auckland
Catherine Dauvergne
University of Sydney
Michael Kagan
Colloquium Rapporteur
Cairo Asylum and
Refugee Aid Project
Suzanne J. Egan
University College Dublin
Walter
Kälin
University
of Bern
Jens
Vedsted-Hansen
Aarhus University
Vanessa
Bedford
Student
Michigan
Law School
Nicole
Green
Student
Michigan
Law School
Elizabeth
Marsh
Student
Michigan
Law School
Stephanie
Browning
Student
Michigan
Law School
William
Johnson
Student
Michigan
Law School
Barbara
Miltner
Student
Michigan
Law School
Michelle
Foster
Student
Michigan
Law School
Noah
Leavitt
Student
Michigan
Law School
Kate
Semple-Barta
Student
Michigan
Law School
The Colloquium deliberations benefited from the
counsel of
Mr. Volker Türk
Chief, Standards and Legal Advice Section
United Nations High Commissioner for Refugees
* Professor of Law and Director, Program in Refugee and Asylum Law, University of Michigan Law School.