Background information
on gender and asylum issues4

Materiales en Español

The United Nations High Commissioner on Refugees (UNHCR) and other U.N. bodies have recognized and attempted to address the intersection of gender-based violence and forced displacement since the 1980s.[fn1] The UNHCR Executive Committee (EXCOM) first issued formal recommendations regarding expansion of the refugee definition to include individuals who have experienced sexual violence or other gender-related forms of persecution in 1991: Office of the United Nations High Commissioner for Refugees, Guidelines on the Protection of Refugee Women, U.N. Doc. ES/SCP/67 (1991). The agency issued more comprehensive guidelines in 2002: UNHCR, Guidelines on International Protection: Gender-related persecution within the context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, UN Doc. HCR/GIP/02/01, 7 May 2002. The UNHCR Executive Committee has also exhorted states to develop and implement domestic criteria and guidelines regarding protection for women who claim refugee status based on a well-founded fear of gender-related persecution.[fn2] Several receiving states have since either enacted such guidelines or have amended refugee and asylum legislation to instruct adjudicators to recognize gender-based persecution as a potential ground for refugee protection. Below are summaries of the present treatment of gender in national and E.U. asylum and refugee law.

Please note that these summaries offer an overview only, and thus are limited in scope, and in some cases are only as accurate as the limited information available describing a particular country's system.

Australia

• Legislation: The primary piece of legislation implementing Australia’s obligations under the Refugee Convention is the Migration Act 1958.
• Guidelines: The Australian government issued gender guidelines in 1996: Dept. of Immigration and Multicultural Affairs, Refugee and Humanitarian Visa Applicants: Guidelines on Gender Issues for Decision-Makers (1996). The Australian guidelines are administrative authority and do not constitute binding law. Rather, they serve to acknowledge gender claims, make it more feasible for an individual to raise a gender-based persecution claim, and underscore for decision-makers the importance of gender in the forced migration context. Another helpful source of guidance regarding treatment of gender-based persecution in Australia is the Report of the Australian Law Reform Commission, Part IV, Section 11: Violence and Women's Refugee Status.
• Key cases: Min. for Immigration and Multicultural Affairs v. Khawar , (2002) 76 A.L.R.J. 667 (finding that a Pakistani woman fleeing severe abuse by her husband and his family could qualify for protection as a refugee where the state could not or would not intervene).[fn3] The Khawar opinion, however, does not refer to Australia’s gender guidelines,[fn4] and shortly after the decision was issued, legislators narrowed the concept of nexus under Australian refugee law. See Catherine Hunter, Khawar and Migration Legislation Amendment Bill (No. 6): Why narrowing the definition of a refugee discriminates against gender-related claims, Australian J. of Human Rts. (2002).

For more comprehensive discussion of Australian caselaw and policies addressing gender-based persecution, see Susan Kneebone, Women within the Refugee Construct: ‘Exclusionary Inclusion’ in Policy and Practice – the Australian Experience, 17(1) International Journal of Refugee Law 7, 40 (2005) (“Paradoxically, at the same time that the High Court [of Australia] is developing jurisprudence which is consistent with international law, the Australian government is moving unilaterally to alter the meaning of the refugee definition.”).

• Of note: Also in recognition of the specific vulnerabilities faced by displaced women, the Australian government administers a related program called “Women at Risk,” which operates abroad to identify women and their dependent children for permanent resettlement. Women at risk constitute a separate visa category within Australia’s Humanitarian Program from refugees, although the two categories are not mutually exclusive, and a woman may legally qualify for admission under both.[fn5] Worth noting is that the program operates under a sex- rather than gender-based conceptualization of risk and vulnerability.

Canada

• Legislation: In Canada, the Immigration and Refugee Protection Act sets out the core principles and concepts that govern Canada's immigration and refugee protection programs."[fn6]
• Guidelines: The Immigration and Refugee Protection Act itself does not refer to gender-based persecution; however, the Canadian government became the first to issue national guidelines regarding gender-based persecution in 1993.[fn7] Since that time, the Canadian Immigration and Refugee Board (IRB) has issued an updated Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution (November 13, 1996) as well as a Compendium of Decisions: Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update (February 2003). The guidelines provide that women may belong to a “gender-defined social group” where they “fear persecution as the consequence of failing to conform to, or for transgressing, certain gender-discriminating religious or customary laws and practices in their country of origin.”

The IRB also released guidance specific to child asylum applicants: Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues (September 30, 1996). Finally, the IRB released the Guideline 8: Procedures with Respect to Vulnerable Persons Appearing Before the IRB (December 15, 2006), which proposes best practices and procedural accommodations for particularly vulnerable asylum claimants appearing before the Board, including children, women with gender-based persecution claims, and survivors of torture.

The Canadian Gender-Related Persecution guidelines are not binding on courts, but the Federal Court of Canada determined that Canadian courts should follow the guidelines unless “circumstances are such that a different analysis is appropriate.”[fn8] Canadian courts have proven so likely to adhere to the Canadian guidelines that “some parties in Canada have based their appeals on the lower court’s failure to consider Canada’s gender guidelines [, and] appellate courts have allowed review on this ground.”[fn9]

• Key cases:Attorney-General of Canada and Ward, United Nations Commissioner for Refugees and al., Interveners, [1993] 2 S.C.R.689 (Supreme Court of Canada) (recognizing non-State persecution for the purpose of refugee status); for a comprehensive compilation of Canada’s gender-based asylum cases up to 2003, see Compendium of Decisions: Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update.
• Of note: An ongoing issue has been whether asylum seekers with claims based on domestic violence should be considered an exception to the Safe Third Country Agreement by Canadian adjudicators because the U.S. has not yet formalized its regulations addressing gender-based persecution. Under the Safe Third Country Agreement between the United States and Canada, which went into effect on December 29, 2004, a refugee claimant arriving at the Canadian border through the U.S. may be turned back to apply for asylum in the U.S. unless the claimant: (1) has a family member in Canada who has already been granted refugee status; (2) has a family member in Canada who has an asylum application pending; (3) is an unaccompanied minor; or (4) has the appropriate visa or travel document or is not required to obtain a visa.[fn10] Generally, therefore, individuals must seek refuge in the first country they enter. The agreement was implemented to facilitate greater control over the U.S.-Canada border[fn11] and eliminate adjudication of claims by the same individuals in both countries; the supporting rationale being that “both the United States and Canada are considered a ‘safe third country’ because both are parties to the Convention and 1967 Protocol by providing fair asylum adjudication.”[fn12]

However, many commentators have criticized the STCA for contributing to human rights violations and resulting in the refoulement of valid refugee claimants. See, e.g., Andrew F. Moore, Unsafe in America: A Review of the U.S.-Canada Safe Third Country Agreement, 47 Santa Clara L. Rev. 201, 201-203 (2007); Harvard Law Student Advocates for Human Rights, et al., Bordering on Failure: The U.S.-Canada Safe Third Country Agreement Fifteen Months After Implementation (March 2006).

The Safe Third Country Agreement particularly jeopardizes women fleeing forms of gender-based violence recognized as persecution on account of a protected ground by Canadian but not U.S. asylum law.

Consequently, the Standing Committee on Citizenship and Immigration recommended that:

“[U]ntil such time as the American regulations regarding gender-based persecution are consistent with Canadian practice, women claiming refugee status on the basis that they are victims of domestic violence be listed as an exempt category under section 156.9 of the proposed regulations.” See the Government Response to the Report of the Standing Committee on Citizenship and Immigration - Safe Third Country Regulations (May 2003).

However, the Canadian government did not incorporate an exemption for women fleeing domestic violence, reasoning that "[w]hile there may be differences in approach on individual cases, it is Canada's position that, at a policy level, the approaches are substantively similar.”

• In a related effort, Canada began to cooperate with the UNHCR in 1988 to offer protection to displaced women designated as “Women at Risk.” New Zealand and Australia (see Australia above) have since undertaken similar initiatives under the same name.[fn13] Canada’s Women-at-risk effort (acronym AWR for “assisting women at risk”) identifies and processes for humanitarian resettlement women in camps run by the UNHCR or an implementing partner who meet the following criteria: (1) lack “the normal protection of a family unit”; (2) “find themselves in precarious situations; where (3) “the local authorities cannot assure their safety.”[fn14] Women processed as AWR cases “do not have to have the same potential for settlement as do other refugees or humanitarian based cases.”[fn15]

European Union

• Legislation & Guidelines: All 27 present E.U. Member States are parties to the 1951 Refugee Convention and its 1967 Protocol,[fn16] and ratification of the Geneva Convention, (the 1967 Protocol) is a prerequisite to E.U. membership.[fn17] Yet, as the E.U. has expanded its legislative domain beyond pursuit of purely economic objectives to include security and human rights concerns, some observers have criticized the regional body of falling below the originally high standards of commitment to providing protection within their borders for individuals fleeing persecution of some of the E.U.'s Member States.[fn18]

Still, several E.U. treaties articulate human rights-related obligations of Member States. The Treaty of Amsterdam, which entered into force in 1999,[fn19] set forth an agenda for enactment of a common E.U. asylum legal order.[fn20] Article 63(2) of the Treaty of Amsterdam required countries of the E.U. to issue directives regarding procedures for reception and qualification of asylum seekers, refugees, and displaced persons within five years. For the upcoming second stage of the E.U. asylum process, E.U. member countries have agreed to establish a Common European Asylum System (CEAS) by 2010.[fn21]

The most important first-stage instrument issued by the European Council is the Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees and persons otherwise in need of international protection and the protection granted (29 April 2004), which provides a common European definition of who is a refugee.[fn22] Although commentators have observed that the overall results of the E.U.'s asylum policy harmonization effort "have been disappointing,"[fn23] the “Qualification Directive” does take the encouraging step of explicitly recognizing persecution by non-state actors and gender-based persecution(Article 9, paras. 2(a) & (f) (gender-based persecution) and Article 10, para. 1(d) (persecution on account of sexual orientation)). The Qualification Directive also includes a state obligation to provide subsidiary protection status for individuals who are not eligible for protection as a refugee but who demonstrate, under the Directive’s Article 2(e):

“substantial grounds … for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15, and to whom Article 17(1) and (2) do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.”

Member States faced an October 10, 2006, deadline to transpose the Qualification Directive into their domestic laws.[fn24] On July 7, 2007, the E.U. Press Room issued an update on particular countries’ transposition statuses and the Commission’s legal action against several of those countries: EUROPA Press Release, Non-transposition of 2 Directives in the field of immigration and asylum: Commission delivers reasoned opinions, IP/07/1015 (July 7, 2007).

As the Qualification Directive does not address procedural aspects of the asylum process, a second important first-stage instrument was issued: Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (“Procedures Directive”).

• Of note: The recently released Green Paper on the future Common European Asylum System, which evaluates the first-stage legislative instruments, recognizes a need for prescription in more depth of “ways in which the special needs of the most vulnerable asylum seekers should be identified and addressed” and “more detailed rules regarding what should be relevant to the assessment of claims based on gender- and child-specific persecution.” [fn25] For insight into how the Directive is already reshaping the asylum systems of E.U. member countries, see, e.g., Helene Lambert, The EU Asylum Qualification Directive, Its Impact on the Jurisprudence of the United Kingdom and International Law, 55 Int’l & Comp. L.Q. 161 (2006).

Germany

• Legislation: Germany was among the last major receiving countries to revise its asylum policies to recognize gender-based persecution, due partly to the country’s distinct asylum jurisprudence arising out of the post-World War II origins of German asylum law. The fundamental right to asylum for those who are politically persecuted is enshrined directly in the German Constitution (the Grundgesetz), which was enacted in 1949, two years before the 1951 Convention relating to the Status of Refugees. [fn26] The 1990 Aliens Act later prohibited removal of asylum seekers who qualified for Convention refugee status, meaning persecution on account of race, religion, nationality, and membership in a particular social group in addition to political opinion; however the Act offered claimants a lesser entitlement to protection than that offered by the Constitutional status, reserved for the politically persecuted.[fn27]

The Immigration Act (Zuwanderungsgesetz)[fn28], which entered into force on January 1, 2005, is the first comprehensive legislative framework in Germany to attempt to manage all aspects of immigration and is actually a package of legislation composed of several immigration-related acts.

The Immigration Act moves German domestic law closer toward harmonization with the European Union Qualification Directive and the 1951 Refugee Convention by recognizing as refugees individuals who have survived persecution by a non-state party whom the state is unable or unwilling to control (Section 60(1)) and/or persecution “solely on account of sex” (Section 60(1)).

• Guidelines: The German government has not yet issued guidelines to clarify or expand on the treatment of gender-based persecution by asylum adjudicators.

Ireland

• Legislation: The main piece of domestic legislation governing adjudication of asylum claims in Ireland, the Refugee Act 1996, sets forth its official interpretation of “membership of a particular social group” as including “membership of a group of persons whose defining characteristic is their belonging to the female or the male sex or having a particular sexual orientation.”[fn29] New legislation, the Immigration, Residence and Protection Bill 2007, which was approved by the Irish Parliament in April 2007, would preserve the inclusion of gender-based harm within the statutory definition of persecution in Section 61 and 62:

61 .— … (2) The following are examples of acts which may amount to acts of persecution for purposes of this Part:

(f) acts of a gender-specific or child-specific nature.

62 .—(1) The Minister or, as the case may be, the Tribunal, shall take the following into account when assessing whether the persecution on which the applicant has based his or her application for protection was, or is for reasons of race, religion, nationality, membership of a particular social group or political opinion: …

(d) … (iii) gender-related aspects may be taken into account in assessing whether an applicant is a member of a social group based on sexual orientation without by themselves creating a presumption for the applicability of this Part[.]

• Guidelines: Although the Irish Office of the Refugee Applications Commissioner (ORAC), which processes asylum applications, “claims to have a number of guidelines/papers that assist them when assessing women’s cases,”[fn30] these guidelines have not yet been published publicly. Irish refugee assistance groups continue to urge the Irish government to adopt the suggested guidelines (or “best practices”) set forth in the 2000 publication by the Irish Council for Civil Rights Women’s Committee: Women and the Refugee Experience: Towards a Statement of Best Practice.

The Netherlands

• Legislation: When the Netherlands ratified the Refugee Convention, the treaty automatically became incorporated into domestic law.[fn31] The Aliens Act is the principle piece of domestic legislation that regulates refugee and asylum status in the Netherlands.
• Guidelines: Although the Aliens Act does not explicitly recognize gender-based violence as a potential ground for persecution, the accompanying Aliens Act Implementation Guidelines ( Vreemdelingencirculaire ) advocate a “gender-inclusive approach to asylum.”[fn32]
• The government also issued a Work Instruction on the subject: Immigration and Naturalization Service (IND), Work Instruction no. 148: Women in the asylum procedure (1997) ((UNHCR translation reprinted in Thomas Spijkerboer, Gender and Refugee Status Annex 7 (Ashgate 2000)):

“Neither the 1951 Convention nor the Dutch Aliens Act makes an explicit distinction according to gender (man/woman). In order to guarantee that these rules effectively do justice to the asylum applications of both men and women, this work instruction formulates a number of premises. Therefore, this work instruction does not contain a policy change, but is meant to draw attention to specific aspects of the asylum applications of women asylum-seekers relative to their gender and which may be important in assessing whether or not the grant of refugee status or a residence permit is warranted.”

• Prior to issuance of the Work Instruction, the Dutch Refugee Council issued the following policy directive in 1984:

It is the opinion of the Dutch Refugee Council that persecution for reasons of membership of a particular social group, may also be taken to include persecution because of social position on the basis of sex. This may be especially true in situations where discrimination against women in society, contrary to the rulings of international law, has been institutionalized and where women who oppose this discrimination, or distance themselves from it, are faced with drastic sanctions, either from the authorities themselves, or from their social environment, where the authorities are unwilling or unable to offer protection.

Norway

• Legislation: The legal foundation of Norway’s immigration and refugee protection system is the Act concerning the Entry of Foreign Nationals into the Kingdom of Norway and Their Presence in the Realm (Immigration Act (1988, last amended 2002).
• Guidelines: The Norwegian Ministry of Justice issued guidelines for claims based on gender-based persecution in 1998.[fn33] A 2000 report by an NGO (the European Council on Refugees and Exiles) specifies: “Guidelines effective from 15 January 1998 specifically mention gender related persecution, exemplified as situations where women, through their actions, omissions or statements, violate written or unwritten social rules that affect women particularly, regarding dressing, right to employment, etc. When the punishment for violating such rules can be seen as persecution in accordance with the Geneva Convention, asylum should be granted. … There is no special procedure or special accommodation for female asylum seekers.”[fn34]
• Of note: Norway announced in February 2007 that (presumably more extensive) gender-based persecution guidelines will accompany an upcoming draft Alien’s Act.[fn35]

South Africa

• Legislation: South Africa ’s main piece of refugee protection legislation, the Refugees Act, No. 130, of 1998, provides in Art. 1(xxi), that for purposes of the “refugee” definition, “members of a particular social group” may “include persons persecuted because of their gender, sexual orientation, disability, class or caste.” The Act also incorporates both the 1951 Refugee Convention and the Organization of African Unity expanded definition of a refugee, which includes persons fleeing “external aggression, occupation, foreign domination or events seriously disturbing public order.”[fn36]
• Guidelines: South Africa also accepted the Gender Guidelines for Asylum Determination suggested by an NGO, the National Consortium on Refugee Affairs, in 1999.[fn37]

Spain

• Legislation: The New Amendment to the Organic Law for the Effective Equality of Women and Men was passed on March 15, 2007, and entered into force on March 24, 2007. The Equality Law, as it is otherwise known, introduces an amendment to Law 5/1984, which regulates the right to asylum and refugee status in Spain, and provides the following: “Third Additional Disposition: Article 3, Part 1 [of Law 5/1984] applies to foreign women who have fled their countries on account of a well-founded fear of suffering gender-based persecution.”

The Equality Law represents a victory for the staff of the Spanish Commission for Assistance to Refugees (Comisión Española de Ayuda al Refugiado (CEAR)) who have campaigned since 2004 to include women who have suffered various forms of gender-based persecution in the Spanish asylum law system, and it also represents a significant step toward harmonization with the E.U. Qualification Directive and the UNHCR Guidelines.

Sweden

• Legislation: Immigration and refugee determinations in Sweden are regulated by the Swedish Aliens Act. A new Aliens Act entered into force on 31 March 2006, replacing the 1989 Aliens Act. According to the Swedish Government's Human Rights Webpage, the new law replaces the former administrative appeals system with a new system for appeals and procedures in immigration cases. One of the new law’s central purposes is to “make the asylum process more transparent and more oral.”

  The new Aliens Act also places a greater emphasis on examining an asylum seeker’s need for protection from multiple angles. The Act explicitly includes gender and sexual orientation as particular social groups within the definition of a “refugee” in Chapter 4, Section 1:

  “In this Act ‘refugee’ means an alien who

  • is outside the country of the alien’s nationality, because he or she feels a well-founded fear of persecution on grounds of race, nationality, religious or political belief, or on grounds of gender, sexual orientation or other membership of a particular social group and
  • is unable, or because of his or her fear is unwilling, to avail himself or herself of the protection of that country.”

Chapter 4, Section 2 of the new Aliens Act extends the provisions, first added in 1997, that define and offer subsidiary status to “persons otherwise in need of protection” to include people fleeing “severe conflicts in the country of origin” and those with a “well-founded fear of being subjected to serious abuses.”

In addition, the new Act provides in Chapter 5, Section 6, that individuals who demonstrate “exceptionally distressing circumstances” may be granted a residence permit if none of the grounds of protection is applicable. The Act specifically provides that “exceptionally distressing circumstances” need not be as serious and grave for children as for adults.

• Guidelines: The Swedish Migration Board (Migrationsverket) issued guidelines on gender-based persecution upon instruction of the Swedish government in March 2001: Sweden: Swedish Migration Board, Gender-Based Persecution: Guidelines for Investigation and Evaluation of the Needs of Women for Protection, 28 March 2001.

A year later, in January 2002, the Migration Board issued guidelines specific to cases in which sexual orientation is given as a ground for asylum: Sweden: Swedish Migration Board, Guidelines for Investigation and Evaluation of Asylum Cases in Which Persecution Based on Given Sexual Orientations is Cited as a Ground, 28 January 2002.

The stated objective of the sexual orientation guidelines is: “[t]o increase the awareness of the staff regarding the special problems of persons with certain sexual orientation can have in the asylum process, and at the same time, to give the applicants as good an opportunity as possible to describe their own experiences, to the extent that they will do so, including extremely sensitive and private aspects.”[fn38]

Both the gender and sexual orientation guidelines were based on the previous Aliens Act, and their status and utility after enactment of the new Aliens Act in 2006 is unclear.

• Key cases: For gender-related cases decided before the Aliens Appeals Board was replaced by court proceedings with the enactment of the new Aliens Act on 31 March 2006, see Kristina Folkelius and Gregor Noll, Affirmative Exclusion? Sex, Gender, Persecution and the Reformed Swedish Aliens Act, 10 Int’l J. Refugee L. 607 (1998) (describing several gender-based persecution cases and their outcomes). Given the dissolution of the Alien Appeals Board, it is unclear what weight the Board’s decisions now carry.

Switzerland

• Legislation: The Asylum Law of 26 June 1998 (Link to the law in French. Also available in German and Italian), which entered into force on 1 October 1999, incorporated guidance for the consideration of gender-related asylum claims into the definition of “refugee.” Article 3(2) provides that “motives for flight specific to women shall be considered.” However, as the European Council on Refugees and Exiles has observed, “this provision has resulted in very limited case-law, as most gender related applications are rejected in accordance with current Swiss practice on this issue, on the grounds that persecution is not perpetrated by state or quasi state agents.”

Under Article 6 of the Asylum Ordinance 1 Concerning Procedural Issues,[fn39] asylum seekers should be interviewed by a person of the same sex when there are “concrete indications or if the situation in the country of origin makes it possible to deduct that persecution is gender-related.”

An additional Asylum Law approved by referendum in September 2006 imposed more stringent requirements on asylum applicants, but did not offer further guidance regarding gender-based claims.[fn40]

• Guidelines: Switzerland has not yet issued guidelines to elaborate on the meaning of “gender-specific flight motives” in the Asylum Law.[fn41]
• Key Cases: Schweizerische Asylrekurskommission (ARK Zollikofen), EMARK 2006 Nr. 32 (granting asylum to a young woman fearing abduction in Ethiopia for the purpose of marriage on the basis of inadequate state protection where the perpetrator has countrywide influence and connections).

United Kingdom

• Legislation: The Asylum and Immigration Appeals Act of 1993, the Asylum and Immigration Act of 1996, and the Immigration and Asylum Act of 1999 govern Asylum and refugee determinations in the U.K. For a good summary of the significance and provisions of these pieces of legislations, see the page on U.K. Legislation by the Information Centre about Asylum and Refugees in the U.K.. The legislation itself does not address gender-based persecution.
• Guidelines: The Refugee Women’s Legal Group, a non-for-profit group of cooperating immigration practitioners and academics, proposed Gender Guidelines for Determination of Asylum Claims in the U.K. in 1998. In 2000, the U.K.’s Immigration Appellate Authority (IAA) adopted much of the content of these and issued their own Asylum Gender Guidelines to assist asylum adjudicators in their assessment of claims. The U.K. Home Office issued further guidance in the form of an Asylum Policy Instruction 2004 and again in 2006: Asylum Policy Instruction: Gender Issues in the Asylum Claim (October 2006).

Recently, several U.K. refugee assistance organizations have criticized decision makers in the Home Office for not adhering to the department’s own guidelines.[fn42]

• Key cases: The House of Lords expressed approval of the Guidelines in the 1999 decision of Islam v Secretary of State for the Home Department; R. v IAT, ex parte Shah [1999] INLR 144, in which the court found that two women who had been suffered domestic violence and were at risk of being accused of and punished for adultery if returned to Pakistan qualified for asylum under the 1951 Convention. And the Court of Appeal held that rape may constitute persecution in Kacaj [2001] INLR 354 and Katrinak v Secretary of State for the Home Department [2001] EWCA Civ 832, [2001] INLR 499. In a 2006 case, the House of Lords granted asylum to an applicant who feared forced genital cutting (FGC) in Sierra Leone: SSHD v K and Fornah v SSHD (2006) UKHL 46, 18 July 2006. Since that case the Asylum and Immigration Tribunal has begun to consider in detail the risk of forced FGC faced by women in particular countries: FM (FGM) Sudan CG (2007) UKAIT00060 (Country Guidance case granting asylum for a Sudanese woman who vehemently opposed the practice and whose two young daughters were at risk of forced FGC at the hands of her husband’s family).

United States

NOTE: More in depth information about gender-based asylum jurisprudence in the United States can be found throughout the Case Law, Summaries, Briefs, and Articles sections of the CGRS website.

• Legislation: The principle statute governing asylum and refugee law in the U.S. is the Immigration and Nationality Act (INA), which was first created in 1954 and had been amended many times since. Section 101(a)(42) of the INA specifically protects individuals who flee gender-based persecution in the form of forced sterilization or forced abortion. However, the Act does not offer guidance regarding other forms of gender-based persecution.
• Guidelines: In 1995, the U.S. became the second country after Canada to publish guidelines recognizing gender-based persecution as a potential ground for asylum: U.S. Department of Justice, Considerations for Asylum Officers Adjudicating Asylum Claims From Women, memorandum from Phyllis Coven, Office of International Affairs (May 26, 1995).[fn43]
• The guidelines were issued as a memorandum to all asylum officers adjudicating affirmative asylum claims and offered guidance for incorporating gender-sensitive insight into both substantive and procedural aspects of the asylum determination process. The guidelines serve as only persuasive authority for immigration judges adjudicating defensive asylum applications. Indeed, several courts have “admonished government attorneys for failing to adhere to the principles set forth in its 1995 memorandum.”[fn44]
• The government has issued the following related guidance since the 1995 memorandum:
• Department of Homeland Security, Guidelines for Children’s Asylum Claims (December 10, 1998)
• Department of State, Gender Guidelines for Overseas Refugee Processing (2000)
• The U.S. Department of Justice, Executive Office for Immigration Review, Operating Policies and Procedures Memorandum 07-01: Guidelines for Immigration Court Cases Involving Unaccompanied Alien Children, memorandum from the Office of the Chief Immigration Judge (May 22, 2007)

• Of note: Some observers have noted that the REAL ID Act, enacted in 2005, departs from the U.S. Gender Asylum Guidelines. For a thorough examination of the instances in which the REAL ID Act’s provisions undermine or contradict the guidelines, see Aubra Fletcher, The REAL ID Act: Furthering Gender Bias in U.S. Asylum Law, 21 Berkeley J. Gender L. & Just. 111 (2006); see also Katherine E. Melloy, Telling Truths: How the REAL ID Act’s Credibility Provisions Affect Women Asylum Seekers, 92 Iowa L. Rev. 637 (2007) (arguing that application of the REAL ID Act’s credibility factors increases the risk of rejecting valid claims by ignoring the effects of women asylum seekers’ psychological and cultural experiences).
• Key case:In re Kasinga, 21 I. & N. Dec. 357 (BIA 1996) (first U.S. precedent decision granting asylum to a woman fleeing gender-based persecution in the form of female genital cutting); see Fauziya Kassindja & the Struggle for Gender Asylum for more information.

Materiales en Español:

CGRS, Asilo y Género: Perspectiva Comparativa y Estrategias Para Avanzar las Protecciones Para Mujeres Perseguidas Por Motivos de Género. Octubre 18, 2007. Presentación compilada por CGRS sobre regulaciones de asilo en 13 paises.

FOOTNOTES

[fn1]See Alice Edwards, Overview on International Standards and Policy on Gender Violence and Refugees: Progress, Gaps and Continuing Challenges for NGO Advocacy and Campaigning (Presentation to the Canadian Council for Refugees) (Amnesty International Index: POL 33/004/2006), July 26, 2006 (citing, inter alia, UNHCR, A Thematic Compilation of Executive Committee Conclusions on International Protection (2nd ed. 2005)). Generally, there is increasing international commitment to addressing through international law the rampant violence faced by women worldwide. For comprehensive consideration of women’s international human rights relating to gender-based violence, see Rebecca Adams, Violence Against Women and International Law: The Fundamental Right to State Protection from Domestic Violence, 20 N.Y. Int’l L. Rev. 57, 104-129 (2007) (domestic violence); Erin Patrick, Migration Policy Institute, Gender-related Persecution and International Protection (2004) (sexual assault and gender-related harm generally).

[fn2] UNHCR Exec. Comm., Conclusion No. 73 Refugee Protection and Sexual Violence, para e., (1993), reprinted in UNHCR, A Thematic Compilation of Executive Committee Conclusions on International Protection 430-32 (2nd ed. 2005), available at http://www.unhcr.org/publ/PUBL/3d4ab3ff2.pdf (recommending that States develop "appropriate guidelines on women asylum-seekers, in recognition of the fact that women often experience persecution differently from refugee men"); UNHCR Exec. Comm., Conclusion No. 77 (1995), reprinted in UNHCR, A Thematic Compilation of Executive Committee Conclusions on International Protection 432 (2nd ed. 2005), available at http://www.unhcr.org/publ/PUBL/3d4ab3ff2.pdf.

[fn3]See Stephen M. Knight, Reflections on Khawar: Recognizing the Refugee from Family Violence, 14 Hastings Women's L.J. 27 (2003).

[fn4] Jenni Millbank, Gender, Sex, and Visibility in Refugee Claims on the Basis of Sexual Orientation, 18 Geo. Immigr. L.J. 71, 77 at footnote 28 (2003).

[fn5] Lenore Manderson, et al., A Woman without a Man is a Woman at Risk: Women at Risk in Australian Humanitarian Programs, 11 J. Refugee Stud. 267, 268 (1998).

[fn6] Immigration and Refugee Board of Canada website, available at http://www.irb-cisr.gc.ca/en/references/act/index_e.htm.

[fn7] Immigration and Refugee Board of Canada, Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution 1 (March 1993).

[fn8] Amy K. Arnett, One Step Forward, Two Steps Back: Women Asylum-Seekers in the United States and Canada Stand to Lose Human Rights Under the Safe Third Country Agreement, 9 Lewis & Clark L. Rev. 951, 969 (2005) (citing Narvaez v. Canada, [1995] 2 F.C. 55, 62 (Can.)).

[fn9] Arnett, 9 Lewis & Clark L. Rev. at 977 (citing Letter from Ctr. for Gender & Refugee Studies to Dennis Coderre, Minister of Immigration and Citizenship, Canada (Apr. 2, 2002)).

[fn10] Andrew F. Moore, Unsafe in America: A Review of the U.S.-Canada Safe Third Country Agreement, 47 Santa Clara L. Rev. 201, 201-203 (2007); Amy K. Arnett, One Step Forward, Two Steps Back: Women Asylum-Seekers in the United States and Canada Stand to Lose Human Rights Under the Safe Third Country Agreement, 9 Lewis & Clark L. Rev. 951, 971 (2005); Canadian Council for Refugees, Closing the Front Door on Refugees: Report on the First Year of the Safe Third Country Agreement (December 2005), available at http://www.ccrweb.ca/closingdoordec05.pdf. The Safe Third Country Agreement applies to “land ports of entry on the United States/Canada border. It does not apply to airports, seaports, or those claims made ‘inland’; that is, in the interior of Canada rather than at a designated border crossing.” Moore, 47 Santa Clara L. Rev. at 211.

[fn11] Harvard Law Student Advocates for Human Rights, et al., Bordering on Failure: The U.S.-Canada Safe Third Country Agreement Fifteen Months After Implementation (March 2006).

[fn12] Amy K. Arnett, One Step Forward, Two Steps Back: Women Asylum-Seekers in the United States and Canada Stand to Lose Human Rights Under the Safe Third Country Agreement, 9 Lewis & Clark L. Rev. 951, 973 (2005).

[fn13] Monica Boyd, Gender Aspects of International Migration to Canada and the United States at 3, UN/POP/MIG/SYMP/2006/08 (June 21, 2006)

[fn14]Canada: OP 5: Overseas Selection and Processing of Convention Refugees Abroad Class and Members of the Humanitarian-protected Persons Abroad Classes at 98 (August 4, 2006).

[fn15] Boyd at 3.

[fn16] Elspeth Guild, The Europeanization of Europe’s Asylum Policy, 18 Int’l J. Refugee L. 630, 630 (2006); Convention relating to the Status of Refugees – 28 July 1951, Multilateral Treaties Deposited with the Secretary General.

[fn17] Guild at 630.

[fn18]Id.

[fn19] Damtew Dessalegne, et al., UNHCR, Towards a Common European Asylum System, The Emergence of a European Asylum Policy 229 (2004).

[fn20] Oxfam, Foreign Territory: The Internationalisation of EU Asylum Policy 15 (2005).

[fn21] European Council on Refugees and Exiles, The Way Forward: Europe’s Role in the Global Refugee Protection System: Towards Fair and Efficient Asylum Systems in Europe (September 2005)

[fn22] Helene Lambert, The EU Asylum Qualification Directive, Its Impact on the Jurisprudence of the United Kingdom and International Law, 55 Int’l & Comp. L.Q. 161 (2006).

[fn23] Oxfam at 15 ("Overall, political considerations, combined with the difficulties of making unanimous policy, have resulted in 'lowest common denominator' standards in the asylum instruments adopted by the EU since 1999.").

[fn24] Integrating Ireland and the Irish Refugee Council, Information Note: Subsidiary Protection under the Qualification Directive (September 2006), available at http://www.irishrefugeecouncil.ie/factsheets.html.

[fn25] Commission of the European Communities, Green Paper on the future Common European Asylum System, COM(2007) 301 final, 7, (June 6, 2007).

[fn26] German Const. Section 16(a); Birthe Ankenbrand, Refugee Women Under German Asylum Law 14 Int’l J. Refugee L. 45, 48 (2002).

[fn27] Ankenbrand at 48.

[fn28] Immigration Act (last visited 7/3/2007); see also German Federal Ministry of the Interior, Immigration Law & Policy 31

[fn29] Refugee Act 1996, No. 17 of 1996, incorporating all amendments

[fn30] Irish Council for Civil Liberties Women’s Committee Submission to the CEDAW Committee: Combined Fourth and Fifth Periodic Reports of Ireland under the Convention on the Elimination of all Forms of Discrimination Against Women 13 (May 2005)

[fn31] Australian Lawyers for Human Rights Refugee Law Kit 2004

[fn32]Women’s Anti-Discrimination Committee Examines Netherlands’ Policies on Prostitution Domestic Violence, Human Trafficking, Committee on Elimination of Discrimination against Women, 767th and 768th meetings, General Assembly, WOM/1601/Rev.1 (24 January 2007), available at http://www.un.org/News/Press/docs//2007/wom1601.doc.htm.

[fn33] Heaven Crawley and Trine Lester, Comparative analysis of gender-related persecution in national asylum legislation and practice in Europe 26, EPAU/2004/05 (UNHCR 2004) (“ In Norway, the 1998 Ministry of Justice guidelines introduced recognition of non-State agents, and the possibility of gender constituting a Convention ground for the granting of refugee status. They also introduced the principle of giving asylum applicants the benefit of the doubt.”); Torhild B. Holth, Implementation of a Gender Perspective in Norwegian Refugee Law 40 (July 2004)

[fn34] European Council on Refugees and Exiles, Norway, European asylum systems: legal and social conditions for asylum seekers and refugees in Western Europe (2000).

[fn35]See UNHCR Press Release, UNHCR welcomes Norwegian steps to strengthen refugee protection, 9 February 2007.

[fn36] Karen Musalo, et al., Refugee Law and Policy: A Comparative and International Approach 151 (3d ed. 2007).

[fn37]Living on the Margins: Inadequate Protection for Refugees and Asylum Seekers in Johannesburg, 17 Human Rights Watch No. 15(A) at 27 (2005).

[fn38] http://www.migrationsverket.se/english.html [visited on 7/2/07] (cited in Caroline O’Connor, Sexual Orientation: 2002 Swedish Guidelines for the Investigation and Evaluation of Asylum Cases: A Model for Europe? 11 Irish Student L. Rev. 130, 138 (2003).

[fn39] Art. 6 of Asylum Ordinance 1 Concerning Procedural Issues of 11 August 1999 (in French) (also available in German and Italian)

[fn40]Swiss vote for tougher asylum laws, Australian (Newspaper), Sept. 26, 2006, at p.10 (In September 2006, a majority of Swiss voters approved a referendum supporting tougher asylum laws, requiring, among other things, that asylum applicants present valid travel documents).

[fn41] Thomas Spijkerboer, Gender and Refugee Status 172 (2000).

[fn42]See, e.g., Refugee Women’s Assistance Project, ‘ Lip Service’ or Implementation? (March 2006)

[fn43] INS Publishes Gender Persecution Guidelines, 72 NO. 22 Interpreter Releases 771, 771 (June 1995).

[fn44] Regina Germain, AILA’s Asylum Primer: A Practical Guide to U.S. Asylum Law and Procedure 47 (4th ed. 2005) (citing Angoucheva v. INS, 106 F.3d 781, 793 n.2 (7th Cir. 1997) (Rovner, concurring) (“I was taken aback by the argument that a sexual assault like this one could be attributed to sexual attraction alone.”).