Discrimination as the touchstone of persecution in refugee law

The touchstone of refugee law is the concept of persecution. The concept is poorly defined. The courts have suggested that it includes several elements, including discrimination, systematic conduct, motivation and causation. In the context of distinguishing between prosecution and persecution, other criteria that have been employed include the notion of a law of general application’ and the legitimate and appropriate and adapted test. These concepts are often overlapping and some are superfluous. This paper proposes a new test for persecution. The best way forward to unify and inject coherency, consistency and certainty into this area of the law is to make discrimination the sole criterion of persecution. The (exhaustive) test for persecution that is proposed is as follows:  1. Does the law on its face impose an additional burden for a Convention reason? 2. If the answer is no, it is necessary to examine if the practical effect of the law is to impose an additional burden on people for a Convention reason either because the law selectively targets people for a Convention ground or disproportionately applies against people for a Convention ground? 3. If the answer to both questions is ‘no’, the law does not constitute persecution. 4. If the answer to question 1 or 2 is ‘yes’, then the law will constitute persecution unless there is a relevant basis for causing serious harm to people for a Convention reason.