Well-founded Fear

Abstract

The refugee status determination process is often, rightly or wrongly, fixated on the first words of the definition of a refugee: a person who has a ‘well-founded fear’. These simple words do not have a precise, legal meaning. They are capable of being understood in different ways, as the literature and jurisprudence on refugee status have amply established. Many have argued, with considerable weight of authority to support them, that the phrase connotes both a subjective and an objective element to the definition of a refugee. UNHCR argues, for example, that ‘it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation’. While superficially appealing and certainly consistent with the natural meaning of the words, this distinction between subjective and objective can, at least in theory, deny refugee status to some of the most vulnerable individuals in the world most in need of protection. It has also arguably led to an unnecessary focus on evaluating the ‘credibility’ of claimants to refugee status, a process that has developed something of a mythology to it. Ultimately, in practice, the words have come to be almost universally understood as requiring in refugee cases, firstly, a low standard of proof and, secondly, an inquiry into future risk.