Rights in Exile Programme

Refugee Legal Aid Information for Lawyers Representing Refugees Globally

Gender Issues in the Asylum Claim

In addition to the information below, please also see the e-learning guide available at www.unfpa.org/public/home/publications/pid/10495

Resource Person: Professor Heaven Crawley

Tel: +44 (0)1 7813 12712
Email: heaven [dot] crawleyatcoventry [dot] ac [dot] uk

Professor Heaven Crawley joined the Centre for Trust, Peace and Social Relations at Coventry University in September 2014 and leads research on Migration, Displacement and Belonging. Educated at the Universities of Sussex (1989-1994) and Oxford (1995-1999), Heaven has more than 20 years' experience of undertaking research on international migration in a wide range of institutional settings (government, voluntary sector, national and international organisations, academia). She was previously head of asylum and migration research at the UK Home Office (2000-2), Associate Director at the Institute for Public Policy Research (IPPR) (2002-4) and managed an international research consultancy (2004-6) before returning to academia to establish the Centre for Migration Policy Research at Swansea University (2006-14). Heaven has written extensively on gender issues in the asylum claim including in her book Refugees and Gender: Law and Process (Jordan Publishing 2001) and has undertaken research on this issue for UNHCR. She was a founder member of the Refugee Women’s Legal Group (RWLG) in the UK which drafted gender guidelines which were subsequently adopted by the UK Home Office in 2004. She has also delivered training on gender issues to Home Office caseworkers, lawyers and community representatives. 

Resource Person: Chloé Lewis

Email: chloe [dot] lewisatlinacre [dot] ox [dot] ac [dot] uk

Chloé Lewis is a DPhil candidate in International Development at the University of Oxford where she is exploring responses to sexual violence in the Democratic Republic of the Congo. Alongside her doctoral research, Chloé has completed a Policy Research Fellowship with the NGO Working Group on Women, Peace and Security in New York and worked with the Human Rights Center Sexual Violence Program at the University of California, Berkeley, School of Law researching accountability for sexual violence in eastern DRC. She is currently working with The World Bank Gender Innovation Lab exploring opportunities and limits for promoting gender equitable norms through a gender sensitisation programme in North and South Kivu. She completed her undergraduate degree in Politics and International Studies at the University of Warwick and has an MSc in Refugee and Forced Migration Studies from the University of Oxford.

GENDER ISSUES IN THE ASYLUM CLAIM

What is gender?

There is a tendency to assume a gendered approach means exclusively addressing the experiences of women, and sometimes girls. As women and girls are disproportionately affected by gender inequality – as a result of their unequal access to rights, resources, and political power, as well as other gendered power imbalances - a focus on women and girls is often necessary. In recent years, however, the gendered experiences of men and the roles of masculinities are increasingly being recognised and understood. Importantly, and regardless of who is making the asylum claim, a gendered approach focuses not on individual women and men but on the system which determines gender roles and responsibilities, access to and control over resources, and decision-making potentials.

It is important to understand that‘gender’ is not the same as ‘sex’, which is biologically defined. ‘Gender’ is a concept which is used to refer to those characteristics of men and women which are socially rather than biologically determined. The use of the term gender emphasises that with the exception of their sexually distinct functions (childbearing and breastfeeding), everything that women and men do – and everything expected of them – can and does change over time and according to changing and varied political, economic, social and cultural factors. Gender relations, and therefore gender differences, are historically, geographically and culturally specific, so that what it means to be a woman or a man varies over place and time

Gender can also be understood as distinct to ‘gender identity’, which refers to a person’s internal sense and experience of their gender. This may or may not correspond to the sex they were assigned at birth or within the traditional categories of woman/female and man/male. In broad terms, individuals whose sexual orientation, gender identity, or sexual practices fall outside of – or are perceived to by others – traditional categories and norms are increasingly referred to as sexual and gender minorities (SGM). They may more commonly be referred to by the acronym LGBTI, which stands for lesbian, gay, bisexual, trans, intersex. For more information about the ways in which sexuality can impact on experiences of forced migration, see this page on the Rights in Exile website.

The importance of gender in the refugee context

Gender has typically been neglected in the dominant interpretation of the 1951 Convention Relating to the Status of Refugees (‘the Refugee Convention’) because unlike other aspects of difference including race, religion and nationality, it is not listed as one of the enumerated Convention Grounds that can form the basis of a claim for protection under international law. But gender can play an important role in shaping experiences of persecution. In many countries women suffer the same deprivation and harm that is common to other refugees. For example, they may be targeted because they are political activists, community organisers, members of women’s movements or persist in demanding that their rights or those of their relatives or community members are respected. In addition however, the experiences of women often differ significantly from those of men because women’s political protest, activism and resistance may manifest itself in different ways. For example:

  1. Women may hide people, pass messages or provide community services, food, clothing and medical care;
  2. The authorities in some countries exploit family relationships to intensify harm;
  3. Women who do not conform to the moral or ethical standards imposed on them may suffer cruel or inhuman treatment;
  4. Women may be targeted because they are particularly vulnerable, for example, those with caring responsibilities or young women who can easily be sexually abused;
  5. Women may be persecuted by members of their family and/or community.

There is evidence that these women are sometimes unable to benefit equitably from protection under the Refugee Convention. The reasons are two-fold:

  1. Procedural and evidential barriers prevent women’s access to the asylum determination process;
  2. In interpreting the Refugee Convention, women’s experiences have been marginalised. For example, whilst overt expression of a political opinion through conventional means such as involvement in political parties may be considered as a basis for political asylum, less conventional forms of political resistance, such as refusal to abide by discriminatory laws or to follow prescribed rules of conduct, are often wrongly categorised as ‘personal conduct’.

In addition, decision-makers may ignore cultural and social prohibitions on women travelling or living alone, the ability of women being able to survive economically without family support in societies where women’s rights to work are curtailed, or they may face greater risk of harassment, exploitation and violence.

Men’s gendered experiences of forced migration and displacement are increasingly being recognised across a diversity of contexts. As is the case for women, gender interacts with other facets of men’s identities and can influence their reasons to flee, the nature of their journey, as well as their access (or not) to formal and informal protection mechanisms, including refugee status. Men, for instance, are more likely to be forcibly conscribed into national armies or recruited by non-state armed groups to fight in wars and armed conflict. Men may also lose their livelihood and be unable to fulfil their roles as breadwinners for their family, which is often core to their identity as men, as husbands, and as fathers. Men can also be targeted or otherwise socially sanctioned if they do not – or are not perceived to – adhere to traditional norms of masculinity.

Research and work with refugee and asylum-seeking men has shed light their often unheard and unseen experiences and vulnerabilities, including to sexual violence. The use of sexual violence against men has been identified in over 25 armed conflicts, and is often perpetrated against men held in detention. It can be especially challenging for men to disclose experiences of sexual violence (including rape), as this is heavily stigmatised and there are rarely response and support mechanisms in place for male survivors. As a result of these factors and the broader silence surrounding this issue, sexual violence perpetrated against men is overlooked and is not counted in existing statistics on sexual violence in conflict. Moreover, in legal and asylum contexts, sexual violations are often recorded and treated under the ambit of torture.

To a lesser degree, the experiences of sexual and gender minorities in conflict and refugee contexts are also slowly being recognised. In a recent report on this issue, International Alert highlights the diverse and multi-layered vulnerabilities to violence, threats, and discrimination of individuals that can arise on the basis of their sexual and/or gender identities in addition to their national and legal identities (See Special Issues: http://www.refugeelegalaidinformation.org/sexual-orientation-and-gender-identity-lgbti ). Precarious situations can arise in varying forms and to varying degrees in different contexts and at different stages of forced migration from individuals’ countries and communities of origin to their host countries and communities. The risks that sexual and gender minorities face may be comparable to those of heterosexual women and men, but may be exacerbated if their clandestine or peer support systems break down and/or if their gender identity, sexual orientation, or sexual practices are revealed. The degrees of risks faced may also vary depending on how ‘visibly’ non-conventional or heterosexual an individual is, or is perceived to be.

It is important to understand the difference between gender-related persecution and gender-specific forms of harm.

The concept of women being persecuted as women is not the same as women being persecuted because they are women. The concept of gender-specific  persecution addresses forms of persecution that are specific or more likely to happen to women including, for example, sexual violence, female genital mutilation (see Special Issues: http://www.refugeelegalaidinformation.org/female-genital-mutilation-grounds-seeking-asylum ), forced abortion and sterilisation and denial of access to contraception. Understanding the ways in which women are violated as women is critical to naming as persecution those forms of harm that only or mostly affect women.

To say that a woman fears persecution because she is a woman (gender-related persecution) addresses the causal relationship between gender (as socially constructed) and persecution. For example, sexual activity outside a socially condoned relationship may result in persecution.

Equally, it is important to recognise that gender-specific violations do not necessarily constitute persecution because of gender. For example, if a man’s genitals are subjected to electric shocks, he is being tortured in a gender-specific way, but it does not necessarily follow that he is being persecuted because of his gender: rather he may be persecuted because of his political or religious identity or activities. Similarly many women experience gender-specific forms of persecution, including rape and sexual violence, because of their actual or imputed political or religious identity or activities. It is important not to assume that all women experience gender-related persecution even where this persecution takes a gender-specific form. The reasons for the persecution are critical in establishing the appropriate Convention ground within the meaning of the Refugee Convention.

Interpreting gendered experiences of persecution

Proper interpretation of the Refugee Convention means taking account of the ways in which gender may shape the applicant’s experiences when assessing whether or not an individual is in need of international protection. This means establishing whether an applicant fears or has experienced ‘serious harm’, whether there is a failure of State protection and whether an applicant’s experiences are directly related to one of the grounds enumerated within the Refugee Convention.

Serious harm

There are many forms of harm that are only or more frequently used against women that may constitute serious harm and, if combined with a failure of state protection, rise to the level of persecution. Such persecution, if for a Convention reason could result in the woman being recognised as a refugee. Some of these forms of harm, most notably sexual violence and abuse and rape may also be used against men.

Gender-specific forms of persecution include, but are not limited to:

  • Marriage-related harm;
  • Violence within the family or community;
  • Domestic slavery;
  • Forced abortion;
  • Forced sterilisation;
  • Trafficking;
  • Female genital mutilation;
  • Sexual violence and abuse and rape.

Gender-specific harm is not different from other forms of ill treatment and violence that are commonly held to amount to persecution. The fact that violence against women is common and widespread in a particular society does not mean that it cannot amount to persecution. Each case should be considered on its own merits against country information and not disregarded because such treatment is common and widespread.

Some forms of harm can have implications beyond the physical, social and psychological consequences with which they are most obviously associated. Sexual violence in particular carries traumatic social repercussions for both women and men that may be affected by their cultural origins or social status. These may include, but are not limited to, rejection by (or of) the spouse and by family or community members, stigmatisation or ostracism by the wider community, and punishment and/or deprivation of education, employment and other types of assistance and protection. Where a victim of sexual violence may have no alternative but to marry her attacker or become a prostitute, these are also human rights violations. Equally, sexual violence and rape may be used against may be used as a form of emasculation and/or may have connotations of homosexuality that are associated with social stigma and shame.

Social and cultural norms regarding appropriate gender roles and behaviour may mean that lesbians face violations of their human rights. Lesbians may experience different forms of ‘serious harm’ than those characteristically targeted at gay men. For example, many lesbians have effectively been denied the right to sexual orientation because they have been forced into marriage (See Special Issues: http://www.refugeelegalaidinformation.org/sexual-orientation-and-gender-identity-lgbti).

In addition there are certain discriminatory measures which, in themselves or cumulatively with others may amount to persecution. For example, if the discrimination has consequences of a substantially prejudicial nature for the person concerned, this may amount to persecution. Examples of such discrimination, some of which can be seen more often to affect women, include:

•       Serious restrictions on rights to earn a livelihood;

•       Restrictions on political enfranchisement;

•       Restrictions on whether to practise or not practise a religion;

•       Restrictions on access to public places;

•       Restrictions from normally available educational, legal, welfare and health provision.

Women in particular may be subjected to discriminatory treatment that is enforced through law or through the imposition of social or religious norms that restrict their opportunities and rights. This can include, but is not limited to:

•          Family and personal laws;

•          Dress codes;

•          Employment or education restrictions;

•          Restrictions on women's freedom of movement and/or activities.

Such restrictions may in themselves constitute ‘serious harm’. For example, dress codes may violate a woman’s right to freedom of conscience, expression or religion, either in and of themselves or because of the consequences of the refusal, failure or inability to comply. A broad range of penalties may be imposed for disobeying restrictions placed on women. Such penalties will often constitute ‘serious harm’, particularly where the level of punishment for violating discriminatory norms is disproportionately severe.

Failure of state protection

In addition to establishing a well-founded fear of ‘serious harm’, a woman must also show that the state has failed to protect her. A failure of state protection exists in the following situations:

•          If ‘serious harm’ has been inflicted by the authorities or by associated organisations or groups or;

•          If ‘serious harm’ has been committed by others and the authorities are unwilling to give effective protection or;

•          If ‘serious harm’ has been committed by others, and the authorities are unable to give effective protection.

•          Conduct by those associated with the state, including sexual violence, is the responsibility of the state. The existence of particular laws or social policies/practices (including traditions and cultural practices) or the manner in which they are implemented may themselves constitute or involve a failure of protection. Thus, for example:

-      A law, policy or practice could be inherently persecutory; or

-      It may have a ‘legitimate’ (for example, population control) goal but be administered unfairly in a discriminatory fashion or through persecutory means; or

-      The penalty for non-compliance with the law or policy may be disproportionately severe against certain persons/groups

Women in particular may be subject to gender-related abuse resulting from social customs or conventions because there is no effective means of legal recourse to prevent, investigate or punish such acts. Such failure of state protection may occur but is not limited to, legislation (e.g. marital rape exemptions in law), lack of police response to pleas for assistance and/or a reluctance, refusal or failure to investigate, prosecute or punish individuals and encouragement or toleration of particular social/religious/customary laws, practices and behavioural norms or an unwillingness or inability to take action against them.

State protection must be meaningful, accessible, effective and available to an individual regardless of their gender, race, ethnicity, sexual orientation, disability, religion, class, age, occupation or any other aspect of their identity. In some cases there may be protection in theory, but actual practice must be examined. Corroborative evidence will not always be available.

It is not always reasonable or possible for a woman to alert the authorities to her need for protection, for example, if by doing so she risks violence, harassment or rejection by her society or even persecution. Men may be reluctant to report sexual violence and rape because of the stigma and shame with which it is associated.

The implications of gender in determining the reasonableness of an internal flight alternative should also be recognised in decision making.

The question to be asked in deciding whether it is reasonable to expect an asylum seeker to relocate is: would it be unduly harsh for the asylum seeker to relocate within their country of origin? The caseworker may need to take into account the implications of gender in determining the reasonableness of an internal flight alternative. For example, in certain countries, financial, logistical, social, cultural and other factors may result in particular difficulties for women or for particular women e.g. widows or single parents. Women may have family ties i.e. children which may have a bearing on the reasonableness of internal flight.

The Convention grounds

In the absence of gender as an enumerated Convention ground within the Refugee Convention means that there is considerable debate about how gender issues in the asylum claim are dealt with under international law. It is important to understand that claims for asylum based on gender can, more often than not, be properly recognised within the meaning of the Convention if these experiences are properly understood within the social and political context within which they occur. This is made clear in the international guidance on how to interpret the Refugee Convention provided by UNHCR:

'Even though gender is not specifically referenced in the refugee definition, it is widely accepted that it can influence, or dictate, the type of persecution or harm suffered and the reasons for this treatment. The refugee definition, properly interpreted, therefore covers gender-related claims. As such, there is no need to add an additional ground to the 1951Convention definition'. (UNHCR 2002 Guidelines on International Protection No. 1: Gender-Related Persecution, paragraph 6)

Race

Whilst actual or attributed racial identity is not specific to either women or men, it may operate in tandem with gender to explain why a particular woman or man fears persecution. For example, whilst the destruction of ethnic identity and/or prosperity of a racial group may be through killing, maiming or incarcerating men, women may be viewed as propagating ethnic identity through their reproductive role, and may be persecuted through, for example, sexual violence or control of reproduction. Equally rape and sexual violence may be used as a weapon of war aimed at emasculating men and reducing their capacity or willingness to fight.

Religion

Both women and men may face harm for their adherence to, or rejection of, a religious belief or practice. Religion as the ground of persecution may include but is not limited to, the freedom to hold a belief system of one's choice or not to hold a particular belief system and the freedom to practise a religion of one's choice or not to practise a proscribed religion.

Where the religion assigns particular roles or behavioural codes to women and men, a woman who refuses or fails to fulfil her assigned role or abide by the codes may have a well-founded fear of persecution on the ground of religion. Failure to abide by the behavioural codes set out for woman and men may be perceived as evidence that an individual holds unacceptable religious opinions regardless of what he or she actually believes about religion.

It is important to note that a woman's religious identity may be aligned with that of other members of her family or community regardless of what she actually believes. Imputed or attributed religious identity may therefore be important.

There may be considerable overlap between religious and political persecution. This may occur, for example, where the state supports or favours a particular religious persuasion or tolerates or otherwise fails to provide protection against the activities of non-state agents who are supporters of a particular religious persuasion.

Nationality

The term 'nationality' does not only mean 'citizenship'. It can include membership of an ethnic or linguistic group and may overlap with 'race'.

Whilst actual or attributed national identity is not gender specific, it may operate in tandem with gender to explain why a woman or man fears persecution. Women may be deprived of full citizenship rights in certain circumstances, for example, if they marry a foreign national. In such circumstances it may be necessary to consider what harm results from this loss and whether it amounts to persecution on the basis of nationality.

Political opinion

Holding political opinions different from those of the home government is not in itself a ground for refugee status. An applicant must show that they have a fear of persecution for holding such opinions. Persecution 'for reasons of political opinion' implies an applicant holds an opinion that either has been expressed or has come to the attention of the authorities. There may however, also be situations in which the applicant has not given any expression of their opinions but an opinion has been imputed to them because of something they have, or have not, done.

Persecution ‘for reasons of’ political opinion is typically seen in terms of male experience i.e. due to direct involvement in conventional political activity such as membership of a political organisation. Claims on these grounds will often involve an openly expressed opinion, which is directed against and is not tolerated by the state.

Whilst many women will be involved in such conventional political activities and raise similar claims this does not always correspond to the reality of the experiences of women in some societies because of the gendered roles and responsibilities outlined above. Gender roles in many countries mean that women will more often be involved in low level political activities for instance hiding people, passing messages or providing community services, food, clothing or medical care. Decision makers should beware of equating so-called ‘low-level’ political activity with low-risk. The response of the state to such activity may be disproportionately persecutory because of the involvement of a section of society, namely women, who because of their gender it is considered inappropriate for them to be involved at all.

Involvement in such activities could be seen to imply that the person holds a political opinion: indeed such activities may be the outward expression of a political opinion although it is not necessary for a person to have formed a specific opinion in their own mind in order for their actions to imply that they hold a political opinion.

Furthermore a person may be attributed a political opinion that they do not actually hold. In these circumstances it is essential to look at what motivates the persecutor, as they will be attributing the political opinion to the individual. For instance a woman who is forced to provide food for a rebel group may be attributed a political opinion by the state even though she does not support the group.

It is important not to underestimate or overlook the political dimensions of a woman's experiences of persecution even though a woman may not regard herself as making a political statement. Non-conformist opinions or behaviour may in certain circumstances be the expression of a political opinion or may result in a woman having a political opinion attributed to her whether she holds one or not. For instance opposition to institutionalised discrimination against women in society can be seen to constitute a political opinion. Non-conformist behaviour in certain cultures such as refusing to wear a veil, pursuing an education or choosing a partner could also lead to a woman having a political opinion attributed to her. Equally the refusal of men to grow a beard or dress accordingly to social norms may be interpreted as meaning that men hold a particular political opinion.

Membership of a Particular Social Group

Most claims on the basis of gender will be covered by other Convention grounds i.e. race, religion, nationality and political opinion, whether actual or imputed. However in some cases gender may be a factor in recognising membership of a particular social group (PSG) or an identifying characteristic of such a group.

In 2002 UNHCR issued guidelines on the interpretation of membership of a PSG within the meaning of the Refugee Convention. These guidelines and existing case law indicate that particular social groups can be identified by reference to innate or unchangeable characteristics. Examples of such characteristics may include, but are not limited to, sex, age, marital status, religion, family and kinship, past economic status/class, occupational history, disability, sexual history and ethnic, tribal or clan affiliation. There are cases where women are persecuted solely because of their family or kinship relationships, for example, a woman may be persecuted as a means of demoralising or punishing members of her family or community, or in order to pressurise her into revealing information. An applicant need not show that the members of a PSG know each other or associate with each other as a group. Neither must an applicant demonstrate that all members of a PSG are at risk of persecution in order to establish the existence of that group in the perception of others.

The fact that the particular social group consists of large numbers of the female population in the country concerned is irrelevant. Race, religion, nationality and political opinion are also characteristics that are shared by large numbers of people.

Procedural issues

Procedural issues can mean that gender issues may not come to light at an early stage in the determination process. Although some women asylum seekers arrive alone, others arrive as part of a family unit and are sometimes not interviewed or are cursorily interviewed about their experiences even when it is possible that they, rather than, or as well as, their male relatives, have been persecuted. Male relatives or associates may not raise relevant issues because they are unaware of the details or their importance or are ashamed to report them. It is important not to assume that a woman’s status is derivative: a woman’s claim to refugee status may in some cases be as strong as, or stronger than, that of her male relative or associate.

It is important that the right questions are asked during the interview in order that all of the information that is of relevance to the decision can be properly assessed. For example, interviewers should not focus their questions on narrowly defined political activities. Political activities also include, community activism, providing food or shelter, message taking, hiding people or refusing to conform to particular social norms. Women may also have a different perception of torture, which may not equate with the types of harm they fear, for example sexual violence, violence within the family, marriage-related harm, female genital mutilation (See Special Issues: http://www.refugeelegalaidinformation.org/female-genital-mutilation-grounds-seeking-asylum), and forced abortion and sterilisation. Ensuring that the right questions are asked during the interview will ensure familiarity with the status and roles of women in the applicant’s country of origin.

In addition interviewers should be aware of the need for culturally sensitive communication to ensure as much information about the basis of the application is available as is possible. Cultural and other differences and trauma can play an important role in determining demeanour i.e. how a woman presents herself physically, for example, whether she maintains eye contact, shifts her posture or hesitates when speaking.

Information to support a woman’s claim may not be readily available See Crawley, H. Thematic review on the coverage of women in Country of Origin Information (COI) reports, prepared for the Independent Advisory Group on Country Information (IAGCI), September 2011. Women’s experiences of persecution frequently differ from those of men and they may be unable to document their experiences. For example, they may not be able to provide membership cards or newspaper cuttings relating to their political involvement because they have been indirectly involved through a supporting role or because the political opinion has been imputed to them. Similarly, information about violence within the family or community may be difficult to find. Background reports and country information often lack analysis of the position and status of women. Statistical data on the incidence of sexual or other violence is often inadequate or lacking. It is important that those working with, or representing, refugee women are familiar with the role, status, and treatment of women in the country from which a woman has fled. It is essential to consider a number of issues when gathering information. These include, but are not limited to:

•          Position of women before the law including their standing in court, the right to bring a complaint and give evidence, divorce and custody law, the right to own property, reproductive rights, freedom to travel, and the political, social and economic rights referred to below;

•          Political and civil rights of women including the right to vote, to hold office and belong to a political party;

•          Social and economic rights of women including the right to marry the person of their choice, the right not to marry and the right to divorce, the right to determine their own sexuality, the right to an education, a career, and a job or remunerated activities, the status of single women, widows or divorcees, and freedom of dress;

•          Consequences for women who refuse to abide by or who challenge social, religious or cultural norms regarding their behaviour including, for example, norms regarding virginity and pre-or extra marital sex or pregnancy, norms around the institution of marriage including arranged marriages and divorce, and norms about behaviour and dress;

•          Incidence and form of violence against women such as, but not limited to, violence within the family, sexual abuse, honour killings, bride- burning;

• Efficacy of protection available to women and the sanctions or penalties on those who perpetuate the violence;

•          Consequences that may befall a woman on her return.

Information about sources of country of origin information can be found here.

The UNHCR’s guidelines on international protection in cases involving gender-related persecution list a number of good practices in relation to gender-sensitive asylum procedures.

Gender and the asylum claims of women

Although the Refugee Convention does not include an explicit reference to sex and/or gender, the importance of gender in shaping the experiences of refugees is increasingly recognised. Guidelines on the Protection of Refugee Women were first issued by UNHCR in 1991 and were followed in 1995 by guidelines specifically on responding to cases involving sexual violence. In 2002, UNHCR updated its guidelines (Guidelines on International Protection No. 1: Gender-Related Persecution)to include explicit reference to the ways in which gender should be taken into account when deciding whether an individual is in need of international protection. These guidelines are intended to provide legal interpretative guidance for governments, legal practitioners, decision-makers and the judiciary, as well as UNHCR staff carrying out refugee status determination in the field. Most recently, in 2008, the UNHCR produced a Handbook for the Protection of Women and Girls. This Handbook describes some of the protection challenges faced by women and girls of concern to UNHCR. It sets out the legal standards and principles that guide UNHCR’s work to protect women and girls and outlines the different roles and responsibilities of States and other actors. UNHCR has also issued guidelines on membership of a particular social group, on the application of the Refugee Convention in cases involving those who have been, or are at risk of being, trafficked, and in relation to Female Genital Mutilation (FGM) that may of relevance in some claims involving gender issues. You can find more information about FGM here, and more information about smuggling and trafficking here. A number of countries including Canada, the United States, Australia, Germany, Ireland, the Netherlands, South Africa, Sweden and the UK have now included explicit reference to gender or sex as grounds for refugee status in their domestic refugee legislation, or have recognised that particular forms of gender-related violence or harm constitute forms of persecution. In 1993 the Canadian government published the first national gender guidelines entitled Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution. The Canadian gender guidelines were subsequently updated in 1996 and have formed the template for many of the guidelines subsequently published in other countries including in the United States (1995), Australia (1996) and more recently Sweden, the Netherlands and South Africa. Web links to the gender guidelines produced in the UK and elsewhere can be found below.

Detailed information about national legislation and policy relating to gender issues in the asylum claim can be found here.

Gender and the asylum claims of men

Through its Gender and Sexuality Issues project, the Refugee Law Project based at Makerere University in Kampala, Uganda, in particular has drawn attention to refugee men’s experiences of sexual violence in contexts of armed conflicts. Their video advocacy documentaries Gender Against Men and They Slept with Me have been particularly effective in this regard. There have since been a number of media reports addressing this question.

UNHCR has issued a Guidance Note on Working with Men and Boy Survivors of Sexual and Gender-Based Violence in Forced Displacement. Similarly, the Geneva Centre for the Democratic Control of Armed Forces (DCAF) published guidance notes for security sector institutions on Preventing and Responding to Sexual and Domestic Violence against Men, while the UK government’s Foreign and Commonwealth Office Prevention of Sexual Violence Initiative published its own Guidelines for investigating conflict-related sexual violence against men and boys. For the updated version of the Minimum Standards for Prevention and Response to Gender-Based Violence in Emergencies, see this link. Looking more specifically at the trafficking of men, IOM produced a report on the less considered experiences of trafficked men from Belarus and Ukraine.

For a more general overview of masculinities in conflict and peacebuilding context, Saferworld produced a comprehensive report on Masculinities, conflict and peacebuilding: perspectives on men through a gender lens, which complements International Alert’s report on Re-thinking gender in peacebuilding. For questions surrounding men, forced migration and resettlement, Forced Migration Review recently published a piece exploring Who will resettle single Syrian men?, while other articles in have explored some of the multiple and sometimes unexpected ways in which gender can impact on men’s experiences of migration and displacement. Scholarly research has also started to critically explore masculinities in conflict, as well as the roles of intersecting masculinities in the European refugee crisis.

Finally, for more information about the experiences of sexual and gender minorities in conflict, displacement and peacebuilding, see International Alert’s report on Merely Existing is a Risk

CASE LAW

Leading jurisprudence in many national jurisdictions has also recognised various forms of gender-related persecution as grounds for asylum. Links to important cases involving gender-related and gender-specific persecution can be found below.

Female Genital Mutilation

Fauziya Kasinga, 3278, US Board of Immigration Appeals, 13 June 1996

Khadija Ahmed Mohamed v. Alberto R. Gonzales, Attorney General, A79-257-632; 03-72265; 03-70803, US Court of Appeals for the Ninth Circuit, 10 March 2005, p. 157

Fornah (FC) (Appellant) v. Secretary of State for the Home Department (Respondent), [2006] UKHL 46, UK: House of Lords, 18 October 2006

Forced marriage

Ali Kamaleddin, Fatemeh Zokaei-Alamdari v. Immigration and Naturalization Service, Fed. R. App. P. 34(a); 9th Cir. R. 34-4, US Court of Appeals for the Ninth Circuit, 4 April 1994

Fornah (FC) (Appellant) v. Secretary of State for the Home Department (Respondent), [2006] UKHL 46, UK: House of Lords, 18 October 2006

Family ostracism or victimisation as result of being trafficked

SB (PSG - Protection Regulations - Reg 6) Moldova v. Secretary of State for the Home Department (UK) [2008] UKAIT 00002, UK: Asylum and Immigration Tribunal / Immigration Appellate Authority, 26 November 2007

Rape and sexual violence

Olimpia Lazo-Majano v. Immigration and Naturalization Service, A 24 345 083, US Court of Appeals for the Ninth Circuit, 9 June 1987

Raquel Martí de Mejía v. Perú, Case 10.970, Inter-American Commission on Human Rights (IACHR), 1 March 1996

Domestic violence and lack of state protection

Rosalba Aguirre-Cervantes a.k.a. Maria Esperanza Castillo v. Immigration and Naturalization Service, US Court of Appeals for the Ninth Circuit, 21 March 2001

Islam (A.P.) v. Secretary of State for the Home Department; R v. Immigration Appeal Tribunal and Another, Ex Parte Shah (A.P.), Session 1998-1999, UK: House of Lords, 25 March 1999

Minister for Immigration and Multicultural Affairs v. Khawar, [2002] HCA 14, Australia: High Court, 11 April 2002

Death penalty for adultery

Jabari v. Turkey, ECtHR, Appl. No. 400035/98, 11 July 2000

Feminist views

Fatin v. Immigration and Naturalization Service, 12 F.3d 1233, US Court of Appeals for the Third Circuit, 20 December 1993,(although her claim was ultimately unsuccessful the Court of Appeal did recognised that ‘feminism’ was a political opinion for the purposes of the 1951 Convention)

Social mores

Refugee Appeal No. 2039/93 Re MN, New Zealand: Refugee Status Appeals Authority, 12 February 1996

CRR, Sections réunies, Mlle Elkebir Nauta, 237939, France: Commission des Recours des Réfugiés (CRR), 22 July 1994

Resources

International guidelines

UNHCR (1991) Guidelines on the Protection of Refugee Women

UNHCR (1995) Sexual Violence Against Refugees: Guidelines on Prevention and Response, Geneva: UNHCR

UNHCR (2002) Guidelines on International Protection No. 1: Gender-Related Persecution, Geneva: UNHCR

UNHCR (2002) Guidelines on International Protection No. 2: Membership of a Particular Social Group

UNHCR (2006) Guidelines on International Protection No. 7: The Application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees to Victims of Trafficking and Persons at Risk of Being Trafficked

UNHCR (2008) Handbook for the Protection of Women and Girls

UNHCR (2009) Guidance Note on Refugee Claims relating to Female Genital Mutilation

UNHCR (2012) Guidance Note on Working with Men and Boy Survivors of Sexual and Gender-Based Violence in Forced Displacement

DCAF (2014) Preventing and Responding to Sexual and Domestic Violence against Men: A Guidance Note for Security Sector Institutions

IFRC (2015) Minimum Standard Commitments to Gender and Diversity in Emergency Programming

IFRC (2015) Minimum Standard Commitments to Gender and Diversity in Emergency Programming

UNFPA (2015) Minimum Standards for Prevention and Response to Gender-based Violence in Emergencies

UNHCR (2015) Sexual and Gender-based Violence Prevention and Response in Refugee Situations in the Middle East and North Africa

FCO (2016) Guidelines for investigating conflict-related sexual violence against men and boys

National gender guidelines

IRB (Canada) (1993) Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution

INS, United States (1995) Considerations for Asylum Officers Adjudicating Asylum Claims From Women

DIMA (Australia) (1996) Guidelines on Gender Issues for Decision Makers

Home Office (2004) Gender Issues in the Asylum Claim www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/asylumpolicyinstructions/apis/gender-issue-in-the-asylum.pdf?view=Binary

Detailed information about gender guidelines and legislation in a number of other countries including South Africa, the Netherlands, Germany, Ireland and Costa Rica can be found at http://cgrs.uchastings.edu/sites/default/files/Review_Foreign_Gender_Guidelines_Caselaw_0.pdf

Further reading

Amnesty International (2016) 'I want a safe place': Refugee Women from Syria Uprooted and Unprotected in Lebanon http://www.amnestyusa.org/research/reports/%E2%80%98i-want-a-safe-place-refugee-women-from-syria-uprooted-and-unprotected-in-lebanon

Allsopp, J. (2017) ‘Aggressor, Victim, Soldier, Dad: Intersecting Masculinities in the European ‘Refugee Crisis’, Freedman, J. et al., A Gendered Approach to the Syrian Refugee Crisis, Ch. 10https://www.routledge.com/A-Gendered-Approach-to-the-Syrian-Refugee-Crisis/Freedman-Kivilcim-Baklacioglu/p/book/9781138693722

Asylum Aid (2012) “I feel like as a woman I’m not welcome”: A Gender Analysis of UK Asylum Law, Policy and Practice, London: Asylum Aid, http://d356gh0apz9rk0.cloudfront.net/wp-content/uploads/2013/02/Ifeelasawoman_EXEC_SUM_WEB.pdf

Asylum Aid (2016) Double Standards for Women Seeking Asylum in Europe http://www.asylumaid.org.uk/policy-briefing-double-standards-for-women-seeking-asylum-in-europe/

Asylum Aid (2016) An Inspection of Asylum Casework March-July 2015 by the Independent Chief Inspector of Borders and Immigration: A Gender Analysis http://www.asylumaid.org.uk/policy-briefing-gender-analysis-an-inspection-of-asylum-casework-march-july-2015/

Bennett, C. (2008) Relocation, Relocation: The Impact of Internal Relocation on Women Asylum Seekers, London: Asylum Aid, http://d356gh0apz9rk0.cloudfront.net/wp-content/uploads/2013/02/Relocation_Relocation_research_report.pdf

Charsley, K. & Wray, H. (2015) ‘The Invisible (Migrant) Man’, Men and Masculinities, 18, 4, 403-423 http://journals.sagepub.com/doi/pdf/10.1177/1097184X15575109

Collier, B. (2007) Country of Origin Information and Women: Researching Gender and Persecution in the Context of Asylum and Human Rights Claims, London: Asylum Aid www.ecoi.net/file_upload/432_1206971434_country-of-origin-information-and-women.pdf

Centre for Gender and Refugee Studies (CGRS) (2014) Domestic Violence-Based Asylum Claims, CGRS Practice Advisory https://pennstatelaw.psu.edu/sites/default/files/documents/pdfs/Domestic%20Violence-Based%20Asylum%20Claims%20(Sept%2012,%202014).pdf

Crawley, H. (2001) Refugees and Gender: Law and Process, Bristol: Jordan Publishing

Crawley, H. (2000) ‘Gender, persecution and the concept of politics in the asylum determination process’, Forced Migration Review 9, 17-20 www.fmreview.org/FMRpdfs/FMR09/fmr9.6.pdf

Crawley, H. Thematic review on the Coverage of Women in Country of Origin Information (COI) Reports, prepared for the Independent Advisory Group on Country Information (IAGCI), September 2011 http://icinspector.independent.gov.uk/wp-content/uploads/2011/02/Evaluation-of-the-Country-of-Origin-Report-on-Women3.pdf

Crawley, H. and Lester, T. (2004) Comparative Analysis of Gender-Related Persecution in National Asylum Legislation and Practice in Europe www.unhcr.org/40c071354.html

Daley, E. (2015) ‘U.S. gay sex slave trial exposes dilemmas faced by male trafficking victims’, Reuters, 29 December  http://uk.reuters.com/article/us-usa-trafficking-florida-idUKKBN0UC0YH20151229

Dolan, C. & Sharkrokh, T. (2016) Engaged Excellence or Excellent Engagement? Collaborating Critically to Amplify the Voices of Male Survivors of Conflict-Related Sexual Violence, IDS Bulletin 47, 6http://bulletin.ids.ac.uk/idsbo/article/view/2829/ONLINE%20ARTICLE

Edwards, A. (2009) Displacement, Statelessness and Questions of Gender Equality under the Convention on the Elimination of All Forms of Discrimination against Women, UNHCR, Legal and Protection Policy Research Series, PPLAS/2009/02 www.refworld.org/docid/4713831e2

Edwards, A. (2003) ‘Age and Gender Dimensions of International Refugee Law’, in E. Feller, V. Türk and F. Nicholson (eds.), Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection, Cambridge University Press, pages 46-80 www.unhcr.org/419c74784.pdf

European Parliament Draft (2015) Report on the Situation of Women Refugees and Asylum Seekers in the EU http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+REPORT+A8-2016-0024+0+DOC+XML+V0//EN 

European Parliament (2012) Gender Related Asylum Claims in Europe http://www.europarl.europa.eu/RegData/etudes/etudes/join/2012/462481/IPOL-FEMM_ET(2012)462481_EN.pdf

European Parliament (2016) Reception of Female Refugees and Asylum Seekers in the EU: Case Study Germany  http://www.europarl.europa.eu/RegData/etudes/STUD/2016/536497/IPOL_STU(2016)536497_EN.pdf

Hadjukowski-Ahmed, M., N. Khanlon, and H. Moussa (eds) (2008) Not Born a Refugee Woman: Contesting Identities, Rethinking Practices, Refugee and Forced Migration Series Volume 24 Oxford: Berghahn Books

Haines, R. (2003) ‘Gender-Related Persecution’, in E. Feller, V. Türk and F. Nicholson (eds.), Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection, Cambridge University Press, pages 320-350 www.unhcr.org/419cc6ad7.html

Harris, L.M (2009) ‘Untold stories: gender-related persecution and asylum in South Africa’, Michigan Journal of Gender and Law 15(2), 292-347 http://repository.law.umich.edu/cgi/viewcontent.cgi?article=1079&context=mjgl 

Griffiths, M. (2015) 'Here, Man Is Nothing!' Gender and Policy in an Asylum Context, Men and Masculinities, 18, 4, 468-488 http://journals.sagepub.com/doi/abs/10.1177/1097184X15575111

Indra, D. (ed) (1999) Engendering Forced Migration: Theory and Practice, Refugee and Forced Migration Series Volume 5 Oxford: Berghahn Books

IntLawGrrls (2011) ‘Pushing the Boundaries of Asylum Law’,www.intlawgrrls.com/2011/09/pushing-boundaries-of-asylum-law.html

International Alert (2014) ‘Re-thinking Gender and Peacebuilding’,http://www.international-alert.org/publications/re-thinking-gender-peacebuilding

International Alert (2017) ‘When Merely Existing is a Risk: Sexual and gender minorities in conflict, displacement and peacebuildingwww.international-alert.org/sites/default/files/Gender_SexualGenderMinorities_2017.pdf

IOM (2008) ‘Trafficking of men – a trend less considered: The case of Belarus and Ukraine’  http://publications.iom.int/system/files/pdf/mrs_36.pdf

Kelly, N. 1993 ‘Gender-related persecution assessing the asylum claims of women’, Cornell International Law Journal 26 (3), 625-74 http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1323&context=cilj 

Lewis, C. (2012), ‘The invisible migrant man: questioning gender privileges’ https://www.opendemocracy.net/5050/chlo%c3%a9-lewis/invisible-migrant-man-questioning-gender-privileges

Martin, S. (2011) ‘Refugee and displaced women: 60 years of progress and setbacks’, Amsterdam Law Forum 3 (2), 721 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1919721

Mazurana, D. & Maxwell, D. (2016) Sweden’s Feminist Foreign Policy: Implications for Humanitarian Response http://www.regeringen.se/contentassets/69436f321e7b445fb179f750cbb537cb/swedens-feminist-foreign-policy-implications-for-humanitarian-response

Middleton, J. and Palmary I. (2008) Gender Based Persecution in the South African Asylum System, Migrant Rights Monitoring Project
www.migration.org.za/sites/default/files/reports/2010/Gender_Report_2008-__FINAL.pdf

Musalo, K. (2015) ‘Personal violence, public matter: evolving standards in gender-based asylum law’, Harvard International Review http://hir.harvard.edu/personal-violence-public-matter-evolving-standards-in-gender-based-asylum-law/ 

Nanasi, N. (2016) Domestic Violence Asylum and the Perpetuation of the Victimization Narrative, Legal Studies Research Paper, no. 242  https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2727287

Nayak, M. (2015) Who is Worthy of Protection? Gender-Based Asylum and US Immigration Politics, Oxford: OUP

Oosterveld, V. (2006) ‘Gender, persecution and the International Criminal Court: refugee law’s relevance to the crime against humanity of gender-based persecution’, Duke Journal of International and Comparative Law 17, 49-89 http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1093&context=djcil

Refugees International (2015) ‘Women and Girls Failed: The Burundian Refugee Response in Tanzania’ https://www.refugeesinternational.org/reports/tanzania

Refugee Law Project (2009) ‘Gender Against Men’ http://www.forcedmigration.org/podcasts-videos-photos/video/gender-against-men

Refugee Law Project (2011) ‘They Slept with Me’ http://www.refugeelawproject.org/component/allvideoshare/video/they-slept-with-me-community-reactions?Itemid=151

Rettberg, W. J. & Gajjala, R. (2015) ‘Terrorists or Cowards: Negative Portrayals of Male Syrian Refugees in Social Media,’ Feminist Media Studies, 16, 1, 178-181

http://www.tandfonline.com/doi/full/10.1080/14680777.2016.1120493

Rights of Women (2012) Seeking Refuge? A Handbook for Asylum-Seeking Women, London: Rights of Women http://rightsofwomen.org.uk/wp-content/uploads/2014/10/Seeking-Refuge-A-handbook-for-asylum-seeking-women.pdf

Saferworld (2014) ‘Masculinities, conflict and peacebuilding: perspectives on men through a gender lens’ http://www.saferworld.org.uk/resources/view-resource/862-masculinities-conflict-and-peacebuilding-perspectives-on-men-through-a-gender-lens

Storr, W. (2011) ‘The rape of men: the darkest secret of war’, The Guardian, 17 July https://www.theguardian.com/society/2011/jul/17/the-rape-of-men

Turner, L. (2016) ‘Are Syrian men vulnerable too? Gendering the Syrian Refugee Response’, Middle East Institute http://www.mei.edu/content/map/are-syrian-men-vulnerable-too-gendering-syria-refugee-response

Turner, L. (2017) ‘Who will resettle single Syrian men?’, Forced Migration Review, 54http://www.fmreview.org/resettlement/turner.html

UNFPA (2012) Managing Gender-based Violence Programmes in Emergencies: E-learning Companion Guide, UNFPA http://www.unfpa.org/sites/default/files/pub-pdf/GBV%20E-Learning%20Companion%20Guide_ENGLISH.pdf plus e-learning guide available at www.unfpa.org/public/home/publications/pid/10495

UNHCR (2011) Survivors, Protectors, Providers: Refugee Women Speak Out, Geneva: UNHCR, www.unhcr.org.uk/resources/monthly-updates/november-2011-update/refugee-women-survivors-protectors-providers

Vu, A. (2016) "Psychometric Properties and Reliability of the Assessment Screen to Identify Survivors Toolkit for Gender Based Violence (ASIST-GBV): Results from Humanitarian Settings in Ethiopia and Colombia," Conflict and Health, 10, 1https://conflictandhealth.biomedcentral.com/articles/10.1186/s13031-016-0068-7
Women's Refugee Commission, (2016) No Safety for Refugee Women on the European Route: Report from the Balkans
https://www.womensrefugeecommission.org/gbv/resources/1265-balkans-2016 

Useful websites

RefWorld is UNHCR’s own searchable website. It contains  a vast collection of reports relating to situations in countries of origin, policy documents and positions, and documents relating to international and national legal framework including links to all UNHCR’s documents on gender issues in the procedures for refugee determination.

The Hastings Centre on Gender and Refugee Studies contains a range of guidelines and case law and other related material on gender-related persecution and women refugees including information on gender issues in countries from which women come.

The University of Minnesota Human Rights Library contains useful information on treaties and human rights case law.

The University of Michigan Case Law Database is (excellent search engine for carefully selected asylum decisions from a wide range of jurisdictions, with summaries.

The website of the International Association of Refugee Law Judges includes a database of cases from many (mostly European) jurisdictions.

The Hungarian Helsinki Committee Refugee Law Reader provides excellent case summaries and identifies and provides links to key academic articles on various topics, general and European-focused.

RDS Watch collects information on UNHCR refugee status determination (RSD) in states that do not have their own RSD laws and procedures.

The Refugee Women’s Resource Project at Asylum Aid aims to enable women seeking asylum in the UK to obtain protection and security, to maintain their dignity and to be treated with respect during the asylum process. It undertakes research into women’s experiences in country of origin and during the asylum process.

The Women's Refugee Commission advocates vigorously for laws, policies and programs to improve the lives and protect the rights of refugee and internally displaced women, children and young people, including those seeking asylum—bringing about lasting, measurable change.

The Gender and Sexuality Programme at the Refugee Law Project works to ensure that all people can access and enjoy their sexual and gender being and rights, and to raise global awareness of the close relationship between violations of sexuality and gender, and patterns of forced migration.

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