Main Debate
To what extent must there be a demonstration of objective v. subjective fears in order to satisfy the well-founded fear requirement?
Main Point
Shifting standards concerning the likelihood of risk
Soft Law
- UNHCR, ‘Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees’, HCR/IP/4/Rev.1, 1979, paras. 37–47.
Cases
- R. v. Secretary of State for the Home Department ex parte Sivakumaran, (1988) 1 All ER 193 (HL) (UK judicial decision analysing objective element).
- INS v. Cardoza – Fonseca, 480 US 421 (1987) (US judicial decision stating that one in ten probability of harm can constitute well-founded fear).
Readings
Core
- J. Hathaway and M. Foster, The Law of Refugee Status, 2nd edition, (Cambridge: Cambridge University Press, 2014), pp. 91-118. [J. Hathaway, The Law of Refugee Status (Toronto: Butterworths, 1991), pp. 69–97.].
- University of Michigan Law School, ‘The Michigan Guidelines on Well-Founded Fear’, 28 March 2004.
Extended
- J. Hathaway and M. Foster, The Law of Refugee Status, 2nd edition, (Cambridge: Cambridge University Press, 2014), pp. 118-181.
- H. Cameron, ‘Risk Theory and “Subjective Fear”: The Role of Risk Perception, Assessment, and Management in Refugee Status Determinations’, International Journal of Refugee Law, vol. 20, no. 4 (2008), pp. 3567–585.
- J. Hathaway and W. Hicks, ‘Is There a Subjective Element in the Refugee Convention’s Requirement of Well-founded Fear?’, Michigan Journal of International Law, vol. 26, no. 2 (Winter 2005), pp. 505–560.
- A. Zimmerman, C. Mahler, ‘Article 1A, Paragraph 2’, in A. Zimmerman (ed.), The 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol: A Commentary, (Oxford: Oxford University Press, 2011), pp. 335–345.
Editor’s Note
See also Section II.2.5.2 concerning evidentiary issues.
Many State Parties interpret this term to require showings of both subjective and objective fear. Debates surrounding the interpretation of the well-founded fear requirement centre upon whether there is a need to demonstrate two elements: 1) the asylum seeker’s subjective emotion of fear and 2) the objective factors which indicate that the asylum seeker’s fear is reasonable; or whether the inquiry should be solely the objective assessment of the situation, limiting protection only to those who objectively risk persecution.
Whether viewed as two elements or one, the major focus is on showing a risk in the future. One must consider all the circumstances, the context and the conditions that have occurred in the past in order to evaluate the degree of likelihood of the actions and threats that might take place in the future. Many commentators and tribunals confuse the discussions of subjective and objective elements of fear with concerns about credibility and consistency of the asylum seekers’ narratives.
See Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted and opened for signature, ratification and accession by UN General Assembly Resolution 39/46 of 10 December 1984, entered into force 26 June 1987, in accordance with Article 27 (1), Section 4) in Section II.3.3.3.
