Non-State Actors and State Responsibility – ‘Well-founded Fear of being Persecuted’ and the Refugee Definition Susan Kneebone

Themes Standards for Refugee Protection 1. ‘Transnational judicial conversations’ 2. Translating international standards into practice 3. Theory versus practice (or theory informing practice)?

The beginning of the conversation Refugee Convention – a person who: [o]wing to a well-founded fear of being persecuted for reasons of …, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country … [Emphasis added]

The end of the conversation EU Qualification Directive 2004/83, Art. 6 recognises non-state actors as ‘actors of persecution or serious harm’ where the state (or its agents) is \ are unwilling or unable to provide protection against ‘persecution or serious harm’.

The end of the conversation Article 7 defines the responsible ‘actors of protection’ and says that protection will be provided when reasonable steps are taken to prevent persecution or serious harm by inter alia the operation of an effective criminal justice legal system.

The elements of the refugee definition The ‘well-founded fear’ requirement – the standard of proof - from human rights to administration ‘Being persecuted’ – the claimant’s predicament, the risk \ well-founded fear Nexus or ‘for reasons of’ - Shah and Islam, Persecution = Serious Harm + The Failure in State Protection

Return to the beginning of the judicial conversation Canada (Attorney – General) v Ward 1993 The Refugee Board - ‘persecution and the lack of protection’ linked ‘unable\ unwilling’ refer to the well founded fear requirement not complicity ‘the absence of protection may create a sufficient evidentiary basis for a presumption of a well founded by the claimant.’

Ward cont – at what point is state protection relevant? The ‘lynchpin’ is the state’s inability to protect … objective reasonableness Once fear established … presume that persecution likely and fear well founded if there is an absence of state protection …

Subsequent application of Ward by the Canadian IRB Separate guidance on: Persecution Grounds Well-founded fear Protection and the presumptions ‘The claimant has the burden of rebutting the presumption of state protection’

How to reconcile the presumption of state protection and the standard of proof? Carrillo v Canada 2008 FCA 94 Ward does not refer to a higher standard of proof La Forest J was referring to the quality of evidence

How Ward was applied Horvath v Secretary of State UK [HL 2001] The surrogacy theory Lord Clyde - in cases of persecution by non-state agents, the principle of surrogacy required evidence of the insufficiency of ‘home’ state protection. ‘… whether the alleged lack of protection is such as to indicate that the home state is unable or unwilling to discharge its duty to establish and operate a system for the protection against persecution of its own nationals.’

Critiques of Horvath Misuse of the surrogacy concept and the accountablity \ internal protection theory ‘accountability \ attribution’ stresses the unwillingness of the state of origin to provide protection, and its implicit complicity for the acts of persecution – the German and French positions Inconsistent applications in the UK Refugee Convention versus ECHR

Minister for Immigration & Multicultural Affairs v Respondents S152 (HCA 2004) The majority: theory eschewed internal state protection is relevant to whether: 1. fear is well founded, 2. the conduct is persecution and 3. the person is unable or unwilling to avail himself of the protection of his home state. Consistent use by RRT of Horvath ‘reasonableness’ approach.

S152 (HCA 2004) cont The role of theory McHugh J: Accountability theory = a responsibility \ complicity theory and should be rejected. Protection theory = surrogate \ substitute \ internal protection - concentrates on whether state unable \ unwilling rather than on Refugee Convention. Critical issue is degree of risk …

Implications The application of the refugee definition ‘the risk of over-defining’ Persecution cf ‘being persecuted’ Link lack of protection and fear of persecution The point at which to apply …

Implications cont Theories International protection – territorial protection \ the neutrality of asylum and Contracting State responsibilities The debate about levels of attribution Situations where there are no states..

Implications cont Overall coherency with the refugee definition The shared burden of proof Art 1C(5) – onus on the state Contrast the exceptions … Non-state actors are the norm not the exception