We Don't Need to See Them Cry: Eliminating the Subjective Apprehension Element of the Well-Founded Fear Analysis for Child Refugee Applicants
Bridgette Ann Carr
University of Michigan Law School
April 1, 2006
Pepperdine Law Review, Vol. 33, No. 535, 2006
This article addresses a barrier to effective protection faced by child refugee applicants. Currently all refugee applicants, including infants, are required to satisfy two elements of well-founded fear. All applicants must prove that they face an objective risk of persecution and that they subjectively fear this risk. But children often cannot exhibit the subject apprehension element of the test. As a result, UNHCR, and the U.S and Canadian governments issued guidelines that encourage decision makers to accept other evidence to prove a child's subjective apprehension when the child is unable to exhibit fear. However, this approach does not go far enough. By allowing subjective apprehension to remain a part of the well-founded fear analysis for child refugee applicants, the threat of effective protection being denied is quite real. A recent case in the United States highlights this point. A nine-year old hearing impaired child was denied asylum by an immigration judge despite objectively clear evidence of potential risk of persecution simply because the child did not satisfy the subjective apprehension requirement. In order to protect child refugee applicants from such mis-guided decisions in the future, this article proposes a solution of only requiring objective risk evidence from child refugee applicants in order to establish a well-founded fear.
Keywords: Refugee, child, well-founded fear, asylum, immigration
Date posted: October 6, 2008