By Adeodata Kanyamihanda and Ishita
Article 1(A)(2) of the Convention of 28 July 1951 relating to the status of refugees (Refugee Convention) recognises five grounds on which refugee protection may be granted. One of these grounds, membership of a “particular social group” (PSG) has increasingly been invoked in claims involving climate-induced displacement. This raises a fundamental question: can climate-displaced persons (CDPs) qualify for refugee protection under the PSG ground, and how do courts engage with climate-related harm?
This blog addresses that question through a comparative analysis of recent case law from the United States (U.S) and Italy. It contrasts a decision of the U.S Court of Appeals for the First Circuit, which rejected the framing of “climate refugees” as a particular social group, with Italian case laws. In Italy, refugee protection was granted under the particular social group (PSG) ground, with climate change functioning as contextual evidence of heightened vulnerability rather than as an independent legal basis for protection. However, when the PSG requirements were not met, subsidiary protection was granted. The comparison highlights the limits of the Refugee Convention framework while demonstrating that climate change may nevertheless play a legally relevant and sometimes decisive evidentiary role in assessing the risk of future persecution faced by members of a recognised PSG.
The Meaning of “Particular Social Group”
The Convention ground, “membership of a PSG”, was clarified by the United Nations High Commissioner for Refugees (UNHCR) in its 2001 Guidelines on International Protection. According to the UNHCR, a group may qualify as a PSG if it satisfies either of two alternative criteria:
(1) its members share a common characteristic other than the risk of persecution; or
(2) the group is perceived as socially distinct within the society in question.
Common characteristics are defined as those that are innate, unchangeable, or otherwise fundamental to identity, conscience, or the exercise of human rights. Importantly, under the UNHCR’s approach, these criteria are not cumulative.
State practice has, however, largely departed from this interpretation. Both the European Union (EU) under Article (10) (1)(d) of the Qualification Regulation (QR) and the U.S have developed more restrictive tests, typically requiring the cumulative satisfaction of immutability (or fundamental characteristics) and social distinction. In the U.S, an additional requirement has emerged: the group must be defined with sufficient particularity, meaning that it must have clear boundaries and not be overly vague.
The U.S Approach: Why “Climate Refugees” Fail as a Particular Social Group
In a decision of 1 July 2024, the U.S Court of Appeals for the First Circuit considered an asylum claim in which the applicant, Cruz Galicia, a Guatemalan national, sought refugee protection based on membership of a PSG defined as “climate refugees.” His claim was based on displacement caused by floods and storms, compounded by the socio-economic consequences of the COVID-19 pandemic, which allegedly placed his family, and in particular his minor child, at risk of severe malnutrition. (See also: Cruz Galicia v. Garland, No. 23-1910, United States Court of Appeals for the First Circuit, 1 July 2024).
In his application, he asserted that he fled Guatemala two years earlier because of floods, storms, and COVID-19. The events affected their livelihood, and as a result, his son was at risk of dying from malnutrition. He further pointed to news headlines supporting his account of malnutrition in Guatemala and asserted that, because of this, he had a “well-founded fear” of being persecuted, and the government would never save nor protect them.
To substantiate the existence of a PSG, the applicant relied on two main arguments:
- First, he referred to a U.S State Department human rights report of 2021 acknowledging the existence of internally displaced persons in Guatemala as a result of climate-related disasters. He argued that this recognition demonstrated the social distinctiveness of CDPs. The Court rejected this claim, holding that governmental acknowledgement of displacement did not establish that such individuals were perceived by society as a distinct social group.
- Second, the applicant relied on journalistic sources highlighting the heightened risk of malnutrition faced by people displaced by environmental disasters. The Court again dismissed the argument, finding that the evidence pointed to structural socio-economic inequality rather than to persecution linked to membership of a socially distinct group.
The Court ultimately concluded that displacement caused by climate change, taken in isolation, does not satisfy the legal requirements of a PSG under U.S asylum law. The claim therefore failed for lack of a Convention ground.
Italian Case Law: Climate Change as Context, not as a Ground
Italian courts have not recognised “climate refugees” as a PSG. Rather, recent case law shows how climate change may be integrated into the assessment of vulnerability and persecution, linked to established Convention grounds, functioning as contextual evidence rather than as an autonomous basis for protection.
On 3 May 2023, the Tribunal of Florence recognised refugee status. for a Bangladeshi national who had been trafficked to Italy after climate-related flooding destroyed his family’s home and livelihood. The applicant, a former farm labourer, fled Bangladesh following prolonged flooding that devastated agricultural land and left his family without state assistance. After failing to secure employment and an unsuccessful asylum claim in Romania, he fell into the hands of traffickers who facilitated his onward journey to Italy (See also: Tribunale Ordinario di Firenze, decreto del 3 maggio 2023, X c Ministero dell’Interno, N. R.G. 2019/16935).
The Italian Territorial Commission initially rejected his application, characterising his situation as economic hardship and finding insufficient evidence of trafficking or risk upon return. Humanitarian protection was also denied, despite indications of trafficking.
On appeal, the Tribunal overturned this decision. It held that the applicant had suffered persecution through trafficking for labour exploitation, engaging Articles 3 and 4 of the European Convention on Human Rights (ECHR). Crucially, the Tribunal did not treat climate change as an autonomous. ground for protection. Instead, it recognised climate-related flooding as a contextual factor that had increased the applicant’s vulnerability to trafficking by producing conditions of poverty, land insecurity, and marginalisation.
The Tribunal found a clear causal link between the acts of persecution and a Convention ground. In line with guidance from the EUAA and the UNHCR, it confirmed that former victims of trafficking constitute a recognisable social group based on their shared and immutable experience and their heightened risk of re-victimisation. Moreover, the Tribunal emphasised that trafficking operates by targeting vulnerabilities, including those arising from climate-related disasters. It concluded that return to Bangladesh would expose the applicant to a real risk of re-trafficking, bonded labour, discrimination, and social exclusion, sufficient to establish a well-founded fear of persecution under the Refugee Convention.
A similar conclusion was reached one week later by the Tribunal of Florence in a comparable case involving a Pakistani national (See also: Tribunale Ordinario di Firenze, decreto del 10 maggio 2023, X c Ministero dell’Interno, E.R.G. 6142).
By contrast, in its decision of 13 March 2024, the Tribunal of Milan declined to grant refugee status to a Bangladeshi man repeatedly displaced by flooding. Unlike in the Florence cases, the applicant was not a victim of trafficking and therefore could not link his situation to membership of a PSG nor to any other Refugee Convention ground such as race, religion, nationality, or political opinion. Climate change, while central to his displacement, merely amplified an existing socio-economic vulnerability rather than contributing to a risk of persecution (See also: Tribunale di Milano, decreto del 13 marzo 2024 con R.G. n. 8753/2020).
The Tribunal nevertheless granted subsidiary protection. Under EU asylum law, this form of international protection is available to persons who do not qualify as refugees but who would face a real risk of serious harm if returned to their country of origin (Article 15 QR). The Court held that recurrent flooding, when combined with the State’s failure to implement effective disaster-prevention measures and to provide adequate post-disaster assistance, exposed the applicant to a real risk of inhuman or degrading treatment within the meaning of Article 3 ECHR and Article 15(b) QR.
Climate Change as Contextual Evidence
Taken together, U.S. case law demonstrates that CDPs face significant obstacles in obtaining refugee status when climate change is invoked in isolation as the basis of a PSG. By contrast, Italian jurisprudence suggests that climate change is not legally irrelevant; it may serve as relevant evidence within both the refugee status determination process and the assessment of subsidiary protection.
At the same time, this analysis shows that the evidentiary value of climate change in refugee claims remains limited, as applicants must still establish a nexus to one of the five Convention grounds. As shown in the Florence decision, refugee status was granted because the applicants belonged to a recognised PSG, former victims of trafficking, while climate-related disasters functioned as contextual evidence demonstrating explaining heightened vulnerability and an increased risk of future persecution by non-State actors.
Although this blog has focused on refugee law, climate change could be used in a broader sense for subsidiary protection claims, where no nexus requirement applies, and protection is therefore not limited to the five Convention grounds. This was demonstrated in the Milan case, where inhuman/degrading treatment, combined with inadequate State protection, reached the threshold of “a real risk of serious harm” required under Article 15 (b) of the QR.
Adeodata Kanyamihanda is a PhD researcher in EU law at the University of Antwerp, supervised by Professor Johan Meeusen. She recently obtained a PhD Fundamental Research Fellowship from the Research Foundation Flanders (FWO) for her research project titled “Enhancing International Protection and Safeguards, through a Comparative Legal Approach, for Climate-Displaced Individuals Seeking Refuge in the EU” (project no. 1128826N). She previously served as a teaching assistant in EU law at the same institution. Her work has been published in journals such as Tijdschrift voor Europees en Economisch Recht and Rechtskundig Weekblad, and on platforms including Verfassungsblog, EU Law Live, and the Review of European Administrative Law blog.
Ishita is a PhD researcher at Ghent University and United Nations University-CRIS. Her research focuses on integrating legal standards with environmental risk indicators to develop legal protection frameworks for climate-related mobility. She works at the intersection of Refugee law, Human Rights law, climate governance and migration policy.
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