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.
But because gender is not listed as a ground for persecution, women have a difficult time showing that gender-related persecution warrants refugee protection. Most women seeking protection due to gender-related persecution, such as intimate partner violence, female genital mutilation (FGM), and forced marriage, must shape and adjust their claims to fit one of the other five persecution grounds—race, religion, nationality, membership of a particular social group, or political opinion.
Yet, recent cases and procedural changes promise a shift. Short of adopting “gender” as a sixth ground of persecution, recent decisions in the European Union and New Zealand and guidelines in Canada have shown that barriers to gender-related refugee claims are being broken. This blog post surveys a few of the positive shifts seen in different refugee systems in deciding gender-related persecution claims.
European Union Case C-621/21
In WS (C-621/21), the Grand Chamber of the Court of Justice of the European Union (CJEU) examined a case brought by a woman of Kurdish ethnicity who had been forcibly married at 16 years old. Her husband physically abused her, and she could not turn to her family for assistance. After leaving Türkiye, she divorced her husband, despite his objections. Because his family threatened to kill her because of the divorce, she feared returning to Türkiye.
Claims involving intimate partner violence and honor killings are not straightforward refugee claims because the potential perpetrators are non-governmental actors. Often, violence and threats are suffered in private spaces, and women often have to prove that it would be futile to report their private abuse to authorities.
In 2011, the European Parliament and the Council of the European Union adopted EU Directive 2011/95, which set standards for the definition of refugee status among member states. The Directive specified that acts of physical violence and acts of a gender-specific nature could amount to persecution. And that gender identity should be considered when determining if a particular social group exists. The court relied on EU Directive 2011/95 to find that gender-based violence, including domestic violence, is a form of persecution that warrants refugee status.
The court concluded that a “woman who is the victim of domestic violence and the potential victim of an [honor] killing” is a member of a particular social group. The court also stated that, in the country context of Türkiye, women who belonged to this particular social group had a well-founded fear of persecution, which warranted refugee status.
New Zealand Case No. 76044
In Refugee Appeal No. 76044, a Kurdish woman from Türkiye sought refugee status due to a fear of honor killing. She arrived in New Zealand with her husband in 2000. After their asylum applications were denied in 2006, her husband attempted to kill her in an attempted murder-suicide. That night, she threw her wedding ring at him and declared that the marriage was over. After she left the marriage, she received repeated calls from the husband’s family who threatened to kill her to “cleanse their dignity.” Her own family also threatened her life.
When evaluating whether a woman who feared honor killings deserved protection, the court concluded that honor killings are about controlling “women” as a group. Thus, the court found that the applicant could claim asylum due to persecution based on political opinion because her declaration that the marriage was over was a challenge to power, as well as membership of a particular social group.
In other systems, the same persecution claim would not be considered persecution based on political opinion. The quintessential political opinion case involves public demonstration and opposition against a government. But in this case, the court viewed the applicant’s resolve to leave her husband as a political act and a challenge to patriarchal power structures.
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 and evidentiary 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.
The Guidelines also provide recommendations for refugee eligibility determinations, noting that:
- Women fearing gender-related persecution can constitute a particular social group;
- The fact that the proposed group comprises many people is irrelevant to determining whether the group is at risk of persecution;
- Sexual assault is a crime that is rooted in gender inequality, thus a gender-based crime;
- If the case suggests a risk of gender-related persecution, adjudicators must take the initiative to assess the risk, even if the applicant does not allege it; and
- The intersectional, cumulative impact of discrimination may amount to persecution.
United Kingdom Cases Shah and Islam, [1999] UKHL 20
In Islam, ex parte Shah, the House of Lords analyzed asylum claims brought by married Pakistani women who were forced out of their homes by their husbands. They feared that if forced to return to Pakistan, they would be falsely accused of adultery and face criminal proceedings, which could result in flogging or stoning to death. The House analyzed whether the women could assert a refugee claim as members of a particular social group, “women in Pakistan.”
In some systems, “women” is not recognized as a particular social group because it is broad and constitutes a large portion of society. However, Lord Steyn found that “women in Pakistan” was a viable group because it was socially distinct.
Lord Steyn noted that “a woman’s place in society in Pakistan is low,” citing the high rates of domestic abuse. He concluded that Pakistani women are unprotected by the state and there existed a prevailing belief that married women are subordinate to the will of their husbands.
Lord Steyn also noted that “women in Pakistan” was not a “novel nor heterodox” group, but rather a logical outcome of the belief that members of a particular social group share an innate, shared characteristic. In this case, “women in Pakistan” was a group that shared an innate, shared characteristic, and this group was discriminated against and unprotected by the state. Even if some women in Pakistan could avoid persecution, Lord Steyn did not find it as a reason to invalidate the particular social group.
The other Lords sought to invalidate the particular social group because of its circularity. “Circularity” is often a barrier for gender-related particular social group claims, as applicants must prove that the alleged persecution exists independently of, and not be used to define, the social group. But Lord Hope of Craighead was satisfied that women in Pakistan were systematically discriminated against, and that persecution was just one common aspect of the group.
United Kingdom Case Fornah, [2006] UKHL 46
In Fornah, the Lords of Appeal considered whether “women in Sierra Leone” could be a particular social group in the case of a refugee who feared female genital mutilation (FGM) if she were forced to return to Sierra Leone. The majority found that while “all women in Sierra Leone” was too broad of a group to fit the persecution that the woman faced, “intact women in Sierra Leone” could be a viable particular social group.
In her opinion, Baroness Hale criticized the lower courts for ignoring what was “blindly obvious”— that gender-related persecution was protected by the Refugee Convention. She also noted there was no need to reduce the group to “intact” women when all Sierra Leonean women belonging to ethnic groups where FGM is practiced were at risk of harm. She concluded her opinion by stating that women “are just as worthy of the full protection of the Refugee Convention as are the men who flee persecution because of their dissident political views.”
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.
K and L is notable because the court did not conclude that the view of equality between men and women was political opinion held by the sisters. Instead, the court concluded that the view of equality was an innate characteristic that a person should not be forced to change.
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. Advocates call for gender-related persecution to be included into the “refugee” definition as a sixth ground. Some countries have decided to cement gender-related persecution into law, but major refugee-hosting systems like Canada, New Zealand, and the United States have not adopted this change in legislation.
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 law for gender-related claims is rising. It is now up to legal actors, governments, and advocates to transform awareness into meaningful solutions.
