A Well-Founded Fear of Being Persecuted … But When?

By Jane McAdam

If someone crosses a border to escape an anticipated risk – a risk of persecution, conflict, a disaster, or the impacts of climate change – how immediate must the feared harm be before another country is required to offer the person protection? 

Almost unnoticed, a notion of imminence seems to have infiltrated some refugee decision-making. It is wrong as a matter of law, and in practice may mean that people who have a need for protection are denied it. 

Kaldor Centre Director Professor Jane McAdam, Professor Michelle Foster and Professor Hélène Lambert, along with Research Associate Adrienne Anderson, are exploring this phenomenon by analysing case law from several countries – Australia, NZ, UK, Canada, US, France, Germany – as well as from the UN Human Rights Committee, UN Committee against Torture, European Court of Human Rights and the Court of Justice of the European Union. 

They have discovered that in certain kinds of cases, such as those relating to the (future) impacts of climate change and to deterioration of health over time, the idea that harm may not materialize until some future point sometimes plays a key role in determining whether someone is granted protection or not. But up until now, there has been little critical or systematic analysis of how far forward in time the assessment of risk should extend. 

In turns out that Australian courts have grappled with the question of timing more than any other jurisdiction the team examined. In Australia, the relevant timeframe for assessing whether a person has a ‘well-founded fear of being persecuted’ is the ‘reasonably foreseeable future’. But what exactly does this mean, and are there any general principles that might assist decision-makers in this process? 

Context is everything, but there are cases where decision-makers have been willing to accommodate harms feared within a few years – and in one case, even a decade. However, comments by the Federal Court seem to suggest that 50 years into the future would be too speculative. ‘Presumably, that is because of the potential for mitigating factors to reduce or nullify the risk,’ says McAdam. ‘But how should a decision-maker factor in scientific evidence that weighs very strongly in favour of certain risks manifesting over time – and certainly at a sufficient level to meet the well-founded fear threshold in refugee law, or its analogue of ‘real risk’ in human rights law?’

Consider the most recent reports from the Intergovernmental Panel on Climate Change (IPCC), for instance. This expert UN body for assessing the science related to climate change has predicted with ‘very high confidence’ impacts from recent climate-related extremes, such as heat waves, droughts, floods, cyclones, and wildfires, and increased risks in urban areas for people, assets, economies and ecosystems, including from heat stress, storms and extreme precipitation, inland and coastal flooding, landslides, air pollution, drought, water scar¬city, sea level rise and storm surges. 

The IPCC has noted with ‘high confidence’ that low-lying areas are at risk from sea-level rise, which will continue for centuries even if global mean temperature is stabilized, and that it is virtually certain that global mean sea-level rise will continue for many centuries beyond 2100 (the amount will depend on future emissions).

This would certainly meet the well-founded fear threshold in refugee law, which can be as low as a 10 per cent chance of harm if the risk is plausible and reasonable. Speculation about what ‘might’ happen in the future is thus a central component of determining whether or not someone needs protection as a refugee or on human rights grounds (complementary protection). 

At the same time, though, the IPCC has acknowledged (with ‘very high confidence’ and ‘high confidence’, respectively) that ‘innovation and investments in environmentally sound infrastructure and technologies can reduce [greenhouse gas] emis¬sions and enhance resilience to climate change’ and ‘transformations in economic, social, technological and political decisions and actions can enhance adaptation and promote sustainable development’. 

In New Zealand, a series of cases has begun to delineate the scope of refugee and human rights law to protect Pacific Islanders at risk of the negative impacts of climate change, disasters and environmental degradation. But so far climate change-related harms have been viewed as insufficiently ‘present’, or the applicants not ‘in danger’, in part due to the potential for intervening adaptive measures.

But mitigation and adaptation measures remain uncertain. A mere possibility of intervention or potential mitigating developments may not reduce an existing real risk, whether it manifests in the near or distant future.

While refugee law itself will generally not be a good fit for most cases relating to climate-related displacement, human rights-based protections may apply (which preclude removal if someone’s life is at risk, for instance). Since cases in this area often draw on refugee law principles by analogy, the capacity of refugee law to protect people from future risks is highly relevant. 

Is there (and should there be) a principled way of defining the relevant time period in assessing risk of future harm? The research team argue that in light of contemporary protection challenges, the need for an open-ended approach to the timing of harm in refugee law is more important than ever.

Jane McAdam spoke on 1 October 2019 at the Harvard University Human Rights Program, co-hosted by the Harvard Immigration and Refugee Clinic, Harvard Law School Advocates for Human Rights, and the Harvard Human Rights Journal.

You can find an article by the team here.