Of the over 120 million forcibly displaced people worldwide, 43.4 million people are refugees and 6.9 million people are asylum seekers. Women make up around half of each population, yet they face refugee and asylum processes that are not operating with a gender-neutral approach.
Refugee and asylum eligibility is largely determined using the “refugee” definition from the 1951 Refugee Convention and 1967 Protocol (“Refugee Convention”), which 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 return to it.” Countries that have signed onto the Refugee Convention have adopted close versions of this definition and have a duty not to expel (principle of non-refoulement) people who meet the definition.
The burden to show that protection is needed usually rests on the person seeking refugee status. At minimum, individuals have to present documents, provide testimony, and participate in formal interviews or court hearings. Women face barriers in refugee processing due to a lack of trauma-informed practices that can be crucial in gender-related claims. For example, the questions asked in an interview, the gender of the interviewer, and the way the interview room is set up can determine whether an individual can open up and provide evidence necessary for their refugee claim.
This blog post surveys a few of the positive shifts seen in different refugee systems in improving procedures for cases involving gender-related persecution.
Canada – Chairperson’s Gender Guidelines
To encourage uniformity in adjudicating gender-related refugee claims, Canada has published guidelines for gender-related refugee claims. “Chairperson’s Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board,” lists procedural guidelines that adjudicators must follow in any case that involves a gender-related issue. When the Guidelines are not followed, courts have sent refugee denials back down to the lower courts for reconsideration.
The Guidelines recommend that adjudicators adopt trauma-informed practices, such as the following:
- Adjudicators should adopt an intersectional approach to cases that consider the unique experience of an individual based on the distinct and compound discrimination that may be suffered due to multiple identify factors (e.g., gender, race, religion, and sexual orientation);
- Credibility determinations should be made with awareness of how trauma impacts memory;
- Adjudicators should be cognizant that corroborating evidence may not be available when abuse can be of a personal nature; and
- Adjudicators should be willing to waive testimony when credible documentary evidence is available.
European Union Case C‑646/21
In K and L (C-646/21), the Grand Chamber of the CJEU examined a case brought by two sisters of Iraqi nationality. The two girls arrived in the Netherlands in 2015 with their parents when they were around 10 and 12 years old. In 2019, they applied for asylum and stated that they needed protection because they feared persecution in Iran based on their “westernization.” Specifically, during their time in the Netherlands, they adopted the view of equality between men and women, and they stated they would suffer developmental harm if they were deported to Iran.
The CJEU ruled that the view of equality adopted by the girls was an immutable characteristic, and that a group that shares this immutable characteristic could be regarded as belonging to a “particular social group.” In sum, because the sisters had “genuinely come to identify” with the view of equality, they could be regarded as belonging to a particular social group that needed refugee protection.
In K and L the court concluded that the view of equality was an innate characteristic that a person should not be forced to change. The court also advised European Union countries to consider the “best interest of the child.” Under this approach, a child’s long stay in the host country can inform whether the child is a member of a particular social group that warrants refugee protection. Adjudicators should take into account the potential harm of expulsion after a long stay in the host country, as well as the child’s views on their own need for refugee protection.
New Zealand Case OF [2023] NZIPT 802113
In OF, the applicant in the case sought refugee protection based on intimate partner violence. The Immigration and Protection Tribunal of New Zealand rejected a “predicament approach” or the notion that only specific or isolated acts of harm constitute persecution. In the context of gender-based violence, the tribunal recognized that violence occurs on a continuum.
A person who has experienced gender-based violence may face challenges proving that isolated incidents are severe enough to constitute persecution. But recognition that abuse occurs on a continuum allows adjudicators to consider and evaluate the broad range of discrimination, threats, verbal abuse, psychological abuse, and physical abuse that, over time, amounts to a level of persecution that warrants refugee protection.
The tribunal also emphasized that threats to the applicant were made in the context of a relationship of power and systemic violence. Information on the “subordinate status of
women in Indian society, where discrimination and structural inequities underpin violence against women” informed the tribunal’s conclusion. In this case, the tribunal found that the applicant could claim refugee status due to the risk of persecution based on political opinion, religion, and as a member of the particular social group.
European Union Cases C-608/22 & C-609/22
In AH and FN (C-608/22 & C-609/22), the Grand Chamber of the CJEU evaluated two cases brought by Afghan nationals. AH fled with her mother after her father wanted to sell her. FN is an Afghan national, and her family fled Iran before arriving in Austria. FN had never lived in Afghanistan when she applied for refugee protection.
The court found that the discriminatory measures against women in Afghanistan constituted persecution. The court came to this conclusion by adopting a “cumulative approach” to evaluating gender-related persecution. Namely, the court looked at a broad spectrum of laws against women’s rights enacted by the Taliban, including the requirements to cover up in public, restricting the right to education, and the restrictions to participate in political life. All of these measures, taken as a whole, constitute acts of persecution that warrant refugee status for women.
Traditionally, asylum applications are evaluated on a case-by-case basis, and the individual must show that they face a risk of harm that is specific to them. However, the court ruled that a well-founded fear of persecution will generally apply for all Afghan women and girls, due to the measures adopted by the Taliban since 2021.
Cases AH and FN are revolutionary because the CJEU established a presumption of refugee status for Afghan women and girls seeking protection in the European Union.
Final Reflections
While these developments indicate a shift in how gender-related persecution claims are viewed in refugee and asylum cases, not all countries have adopted the same views. The U.N. High Commissioner for Refugees (UNHCR) informs countries that refugees may be reluctant to share details of the persecution they suffered or may fear people in authority positions, such as immigration officials. For these reasons, UNHCR advises countries to take a trauma-informed approach to gender-related refugee claims. However, these guidelines are not binding on Refugee Convention signatories, and these procedural protections are not universally adopted.
In sum, much more work needs to be done to realize a universal shift in how women are protected under refugee law. But awareness of the systematic discrimination of women and the design faults of refugee processing for gender-related claims is rising. It is now up to legal actors, governments, and advocates to transform awareness into meaningful solutions.
