[ANALYSIS] Harry Roque’s asylum claim stands on shaky ground

On March 17, 2025, former presidential spokesperson Harry Roque declared that he was in the process of claiming asylum in the Netherlands. He expressed confidence that he would be able to prove that he is the victim of political persecution through unjust prosecution. He claimed that once the application is received, he would be protected from refoulement — meaning, his deportation would be prevented if that would lead to harm or persecution.

However, Roque omitted an important fact: he must establish the basis of his asylum claim. In other words: Is his asylum claim worthy of being entertained to begin with? Is he deserving of protection?

The protection of refugees and individuals facing serious harm is a fundamental pillar of international human rights law. The 1951 Refugee Convention and its 1967 Protocol serve as the global foundation for refugee protection. It establishes the criteria for determining refugee status and prohibiting refoulement or the forced return of individuals to countries where they face persecution or harm.

Although states may apply these principles differently in their domestic legal frameworks, they generally follow a similar structure: an asylum seeker must demonstrate a well-founded fear of persecution or a risk of serious harm to qualify for protection.

Refugee determination under international and domestic law

The 1951 Refugee Convention defines a refugee as a person who, “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, 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.”

Under Article 33 of the Convention, states must not return (refoule) refugees to a place where their life or freedom would be threatened. 

At the domestic level, countries incorporate these obligations into their national asylum systems. The Netherlands applies them through the Aliens Act 2000. These two legal frameworks involve individual determination processes carried out by independent immigration authorities.

The standard of well-founded fear in refugee law

A well-founded fear of persecution is the core requirement for refugee status. This standard is both subjective (based on the applicant’s personal fear) and objective (based on the real risk of harm). Courts and asylum tribunals assess the following:

• Credibility of the applicant’s testimony
• Country conditions (often based on reports of the government and the United Nations High Commissioner for Refugees)
• Whether the fear is based on one of the five Convention grounds: race, religion, nationality, political opinion, or social group

The United States Supreme Court and the European Court of Justice (Elgafaji, 2009) have emphasized that a refugee does not need to prove they will certainly be persecuted — rather, a real risk suffices. This broad interpretation ensures protection for those facing genuine threats, even in the absence of direct individual targeting.

Serious harm under Dutch asylum law

For those who do not qualify as refugees, Dutch asylum law provides subsidiary protection based on the risk of serious harm. This concept includes three categories:

• The death penalty or execution
• Torture or inhuman or degrading treatment or punishment
• A serious and individual threat to life due to indiscriminate violence in situations of armed conflict

Dutch courts apply the Elgafaji test to determine whether an individual faces a general risk of indiscriminate violence in a conflict zone, even if they are not personally targeted. 

Burden of proof and IND decision-making

The Dutch Immigration and Naturalisation Service (IND) evaluates whether an applicant faces serious harm based on:

• Country of Origin Information (COI) from the Ministry of Foreign Affairs
• Personal circumstances of the applicant
• Recent European Court of Human Rights (ECtHR) and Dutch case law

Individuals who meet the criteria for serious harm receive a subsidiary protection permit valid for five years, after which they can apply for permanent residence. (READ: [The Slingshot] Open letter to the Dutch IND* in Ter Apel)

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Harry Roque’s asylum claim 

Roque brought up the concept of refoulement and his right against it. He is correct in that once a state deems his refugee or asylum claim receivable, the host state may not refoule or return him to the Philippines, where he allegedly faces persecution or harm. However, he omitted an important fact: He has to establish the basis of his asylum claim — his claim for asylum needs to satisfy the tests set out in the legal frameworks as explained above.

There are two sets of legal frameworks through which he can pursue his claim. The first one is through the refugee regime, and the second or subsidiary is through a request for protection from serious harm.

For his claim under the refugee regime to succeed, he must demonstrate that he has a well-founded fear. It is both subjective (that is, based on his personal fear of persecution on one of the five Convention grounds) and objective (that is, the real risk of harm — will he be risking persecution). 

Under the first regime, Roque’s credibility will be analyzed. For this, Dutch authorities will no doubt use government and UNHCR country condition reports regarding the Philippines. It will examine evidence that Roque will submit and, depending on the inquisitorial powers the asylum tribunal will exercise, third-party evidence may also be incorporated in the evaluation of his claim. Moreover, Roque must, under this regime, demonstrate that he is being persecuted based on one of the Convention grounds: race, religion, nationality, political opinion, or social group.

The dearth of information that is publicly available that allegedly implicates Roque in human trafficking schemes in the last few months may spell doom against him. Roque is of course well within his rights to address these concerns directly before the tribunal — he will have his day in court.

It is no secret that the European Union and most western democracies — including the United States, the UK, and Canada — have been critical of the drug war and the proliferation of human trafficking during the Duterte years. I suspect that the asylum claim, specifically Roque’s credibility, will be analyzed against this backdrop.

Out of the five Convention grounds, the closest that Roque can mount would be persecution on the basis of political opinion. For this, context is king. We go back to the backdrop of why Roque faces potential prosecution in the Philippines — it does not bode well for establishing a strong context for his case that he fled the Philippines and eluded arrest while facing allegations of links to human trafficking, and that congressional investigations were in progress.

Turning now to the second regime, a possible claim for protection against serious harm, it is clear that Roque does not face the death penalty or execution. The Philippines has gotten rid of the death penalty. The question of torture as well as inhuman or degrading punishment may also be raised. 

Frankly, while the deteriorating human rights situation under the Duterte years were in the spotlight, the situation has significantly calmed down — though we will not say that problems no longer exist.

His best defense is possibly claiming that he is being targeted because of his political affiliation. But, just like under a refugee claim, it is highly unlikely that this would succeed because of the context of his potential prosecution.

Persecution via prosecution, or the weaponization of the law, is certainly a legitimate basis of claim. However, I can only think of one figure who actually would have fit this bill: Leila de Lima. Certainly, not Mr. Roque. – Rappler.com

Lou Janssen Dangzalan is a Filipino-Canadian immigration lawyer. He is an alumnus of UST, Ateneo, the National University of Singapore, and the University of Ottawa, where he attended law school in French. His practice is based in Toronto, Canada. He may be reached at info @ ljd-law.ca.