Background information
on gender and asylum issues

Under international and United States law, a refugee is defined as a person with a "well-founded fear of persecution" for reasons of race, religion, nationality, political opinion, or membership in a particular social group. Based on this language, the refugee definition is commonly understood to include three essential elements:

(1) there must be a form of harm rising to the level of persecution, inflicted by a government or by individuals or a group that the government cannot or will not control;

(2) the person’s fear of such harm must be well-founded — the U.S. Supreme Court has ruled that a fear can be well-founded if there is a one-in-ten likelihood of its occurring;

(3) the harm, or persecution, must be inflicted upon the person for reasons related to the person’s race, religion, nationality, political opinion or membership in a particular social group (the nexus).

The international definition of "refugee" has been interpreted primarily in the context of male asylum-seekers, to the prejudice of women refugees. A classic image of a refugee is that of the male political dissident, e.g., Andrei Sakharov of the former Soviet Union, who was persecuted for denouncing totalitarianism. In such a case an adjudicator has little difficulty recognizing that the harm suffered amounts to persecution and that it was related to one of the five grounds.

The claims of women asylum-seekers often differ from those of men in several respects. First, women often suffer harms which are either unique to their gender, such as female genital mutilation or forcible abortion, or which are more commonly inflicted upon women than men, such as rape or domestic violence. Second, women’s claims differ from those of men in that they may suffer harms solely or exclusively because they are women, i.e., as a result of their gender (such as the policies of the Taliban in Afghanistan). And third, women often suffer harm at the hands of private individuals (such as family members who threaten them with "honor killings" or abusive spouses who batter them), rather than governmental actors.

The distinctions between the more traditional claims of male asylum seekers, and those of women, have often adversely impacted women asylum-seekers. Decision-makers often fail to recognize that harms unique to women — such as forced marriage or honor killings — may constitute persecution. They are also resistant to the developing jurisprudence which recognizes that harms inflicted primarily because of gender may come within the protection of international or domestic refugee law, and that persecution at the hands of private actors can form the basis of refugee protection where there is a failure of state protection.

These developing international human rights and refugee norms provide a basis for extending protection to women asylum-seekers regardless of the distinctions between their claims and the more traditional claims of male applicants. The United Nations High Commissioner for Refugees (UNHCR) has provided guidance in cases of women asylum-seekers (read more), and immigration authorities in Canada, the United States and Australia have all issued guidelines for adjudicators (read more). Furthermore, the landmark decision, Matter of Kasinga, which established that a woman fleeing female genital mutilation could qualify for political asylum in the United States, provides legal authority for grants in gender cases.

Notwithstanding these developments, the claims of women asylum-seekers continue to meet denials due to erroneous interpretations of the refugee definition by decision-makers, as well as a fundamental lack of understanding of the applicable human rights norms and the relevant country conditions. The reversal of asylum by the Board of Immigration Appeals (BIA) in the Alvarado case (read more) is an example of this hostility towards gender claims for asylum, but that decision is not an isolated one. CGRS is aware of numerous compelling cases in which egregious denials — in contradiction of the controlling law — have been issued. In one case, an immigration judge refused to find that a woman living under the Taliban in Afghanistan was entitled to asylum; in another, the BIA decided that a Jordanian woman who presented credible evidence that her father and male relatives had vowed to kill her pursuant to the practice of honor killing in that country was not entitled to asylum (read more).

Below are a few links to some of the leading positive cases involving recognition of gender-based violence as a basis for asylum:

• K & Fornah (UK House of Lords; Kenya & Iran - female genital cutting / family; 2006)
• Khawar (Australian High Court; Pakistan - DV; 2002)
• Islam & Shah (UK House of Lords; Pakistan - DV; 1999)
• Re MN (New Zealand; Iran; repressive social norms; 1996)