These days refugees are at the forefront of everyone’s mind due to the number of Syrian nationals reaching the European shores, and associated to the idea of refugees is the image of a very large group of people fleeing a war-torn country.
However, refugees are not only created by armed conflict. Many individuals fear persecution in their country or origin -even if that country is politically stable and peaceful- due to their opinions or beliefs, actions or simply because of who they are.
The 1951 Geneva Convention on Refugees defines a refugee as someone 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…”
Before being recognised as a refugee, a person who reaches the United Kingdom is described as an “asylum seeker”. Depending on their age, gender and specific vulnerabilities, each asylum seeker is faced with different difficulties and problems.
Women for example, face specific difficulties when going through the asylum process and the type of persecution that a woman suffers may be very different from that suffered by a man.
The 2002 UNHCR Gender Guidelines, published on 07 May 2002, highlight gender-specific issues faced by women seeking asylum and analyse the Geneva Convention’s definition of refugees in a gender-sensitive perspective.
In relation to what amounts to a “well-founded fear of persecution”, it is uncontroversial in international law that rape and other forms of gender-related violence, such as domestic violence, trafficking and female genital mutilation (FGM), perpetrated either by the State or by non-State agents, amount to persecution.
In certain countries, laws can be persecutory per se, for example if they stem from traditional norms or mores that are non compliant with international human rights standard. Persecution may also result from practices, such as FGM, that are prohibited by law, but in reality are not effectively stopped or punished.
The UNHCR Guidelines further explain that “severe punishment for women who, by breaching a law, transgress social mores in a society” could also amount to persecution. Furthermore, “even where laws or policies have justifiable objectives, methods of implementation that lead to consequences of a substantially prejudicial nature for the persons concerned, would amount to persecution.” For example the use of forced abortion or sterilisation practised to implement a legitimate family planning policy amount to a serious human right abuse.
Discrimination may also amount to persecution if it reaches a certain threshold. This often forms the basis of gender identity or sexuality-based asylum claims. Finally, trafficking for the purposes of forced prostitution or sexual exploitation constitute a persecutory treatment.
Although not all of the above forms of persecutions are exclusively suffered by women, many affect women disproportionately.
In this context, how is the Home Office dealing with gender-specific issues and gender-based claims? And what is the experience of women seeking asylum in the UK?
The Home Office adopted a Gender Guidance document in March 2004, which was updated it in September 2010. This document was brought about by lobbying of various NGOs, and reflects the UK Visas and Immigration’s asylum policy instructions to Home Office’s caseworkers about how to make decisions on a claim that involves gender issues.
The Gender Guidance contains an interesting analysis of the various possible forms of gender-related persecution.
Of particular importance is the differentiation of the various forms of persecution a woman can be subjected to.
The form of persecution itself can be “gender-specific or predominantly gender-specific: for example, rape and other forms of sexual violence, domestic violence, crimes in the name of honour, female genital mutilation (FGM), forced abortion and sterilization”. In addition to this, the reason for persecution “can be gender-based, i.e. the applicant fears persecution on account of her or his gender or gender identity”.
Therefore, the Home Office’s Gender Guidance clarifies that persecution can be:
“i) gender-specific persecution for reasons unrelated to gender (e.g. raped because of holding or expressing a political opinion);
ii) non-gender-specific persecution for reasons relating to gender (e.g. flogged for not adhering to the codes of a religion e.g. refusing to wear a veil); or
iii) gender-specific persecution because of gender (e.g. female genital mutilation)”.
The Government’s Action Plan 2014 “A Call to End Violence against Women and Girls” contains four action points relating to women’s asylum claims, which aim to make the asylum system “as gender-sensitive as possible”.
“a) Work with key stakeholders to improve the processes for referring asylum seekers who are victims of sexual violence to the appropriate services and signpost women and girls to available information and advice;
b) Improve guidance and training within the asylum system by enhancing the quality of the country information on violence against women and girls available to asylum decision makers; incorporating a violence against women and girls element into credibility training and foundation training for new case owners; and continuing work with Asylum Aid and other corporate partners to develop a training DVD on managing asylum claims from women.
c) Monitor how asylum interviewers and decision makers handle gender-related issues on a six monthly basis, monitor trends in performance over the longer term and address specific gender related performance issues.
d) The Syrian Vulnerable Person Relocation (VPR) scheme to provide emergency sanctuary in the UK for displaced Syrians will prioritise survivors of torture and violence, including sexual and gender-based violence, and women at risk or in need of medical care”.
Despite these good intentions, it appears that in practice many women’s claims are approached with insensitivity and disbelief by Home Office caseworkers.
A late disclosure of rape for example, due to feelings of shame and trauma, can be interpreted as an indication that the applicant is being untruthful. If the applicant’s credibility is damaged, their asylum claim would almost certainly fail.
The UN Special Rapporteur on Violence Against Women, Rashida Manjoo visited the UK in April 2014. Her report, published on 17 June 2015 by the UN Office of the High Commissioner for Human Rights, highlights concerns in relation to the Home Office’s approach to women’s asylum claims and disclosure of past violence.
Particularly critical is the report’s assessment of women’s claims processed at Yarlswood Immigration Removal Centre. During her UK visit, Ms Manjoo was denied access to the detention centre, which has recently been described by Nick Hardwick, chief prisons inspector, as “a place of national concern”.
The Special Rapporteur noted that women’s asylum claims are often wrongly decided by the Home Office, as reflected by the outcome of asylum appeals, where about one-third of initial decisions are overturned, mainly because immigration judges reach a positive conclusion on the applicant’s credibility.
It is essential that the quality of decision-making in women’s asylum cases be improved, Home Office staff receives additional training and that the Gender Guidance is applied effectively.