The Internal Flight Alternative Test: The Furisprudence Re-examined

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Among essential elements of the refugee definition, the internal flight alternative has been a source of difficulties of interpretation and application. In the context of a legal framework of international protection its logic is irrefutable. But the text of the Convention does not spell it out; the treatment in UNHCR's Handbook is cursory and controversial; and it has gone by different names. Underlying these difficulties is a shared concern about the potential rigours of the test, its uncertain implications for asylum seekers; and the temptations it offers decision-makers intent upon quick-fix dispute resolution. This article examines developments in the IFA test in recent international jurisprudence. After a brief textual analysis, a number of key features of the test are examined: its name; the relevance of paragraph 91 of the Handbook; the burden and standard of proof; its temporal and spatial dimensions; the proper formulation of its two prongs, one relating to safety of alternative place, the other relating to access; the role within the test of the criterion of reasonableness, especially in terms of its meaning and scope. Particular attention is given to the close interplay that this test entails between the concepts of well-founded fear of persecution and the concept of effective protection. Resolution of one of the main points of divergence in the international jurisprudence, that relating to the reasonableness test, is attempted in terms of the test's spatial parameters. It is further proposed that the time is ripe for more systematic application in terms of a structured human rights approach, an approach which needs applying even to the notion of undue hardship. Also covered is the emerging role of a parallel IFA test in the context of major international human rights treaties that guarantee extra-Convention protection. It is argued that the time is ripe for fuller guidelines on the test in accordance with a coherent framework of analysis. A need is identified for more IFA-specific data to aid better-quality decision-making.