UNHCR - Comparative analysis of gender-related persecution in national asylum legislation and practice in Europe (May 2004)

Summary

Introduction and background:

The research has been mainly carried out through a questionnaire survey sent in 41 European countries.

The purpose of the questionnaire was to gather information about the extent to which UNHCR Gender Guidelines have been incorporated into national policies and procedures for Refugee Status Determination in the countries comprising the Regional Bureau for Europe.

In addition the research contains an in-depth analysis of policy and practice in four case study countries: UK, Sweden, Germany and Lithuania.

There are some limitations with the said methodological approach. These limitations arise in significant part from the fact that this has been a short, time-limited study (12 weeks).

This report systematically examines policy and practice regarding gender related persecution across European countries in relation to the essential elements of the refugee definition in Article 1(A) of the 1951 Convention, according to which the term ‘refugee’ shall apply to any person who ‘owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside [her] country of origin and is unable, or, owing to such fear is unwilling to avail [herself] of the protection of that country; or who, not having a nationality and being outside the country of [her] former habitual residence as a result of such events is unable or, owing to such fear, is unwilling to return to it’.

As is noted in the UNHCR Gender Guidelines, it is an established principle that the refugee definition as a whole should be interpreted with an awareness of possible gender dimensions in order to determine accurately claims to refugee status.

The concept of persecution within the Refugee Convention raises two questions:

• Is there a violation of human rights or other serious harm that amounts to persecution;

• Is the State unable or unwilling to offer effective protection?

‘Persecution’ = Violation of Human Rights or Serious Harm + The Failure of State Protection

Gendered statistics on asylum applications and decisions:

Even if the need for detailed statistics on asylum applications and decisions has been recognised and set out by UNHCR in various occasions, there is currently a lack of trasparency and consistency in this area.

• Less than half of all countries produce gender-differentiated statistics on asylum applications and less then a fifth produce gender-differentiated statistics on decisions;

• Around a third (29%) of applications for asylum in Europe are made by women.

• All of the countries selected as case studies produce gender-differentiated statistics on asylum applications. The UK, Lithuania and Sweden also produce gender differentiated statistics on asylum decisions.

Adoption of UNHCR’s Gender Guidelines:

UNHCR has produced a range of guidelines over the years that promote a gender-sensitive interpretation of the 1951 Convention:

• 1991 Guidelines on the Protection of Refugee Women

• 1995 Sexual Violence Guidelines (updated in 2003)

• 2002 Guidelines on International Protection No.1: Gender- Related Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees.

Furthermore, the need for such guidelines has been recognised by a range of international organisations and advocacy groups, by regional bodies, and by some States:

• a European Parliament Resolution in 1996 urged Member States to adopt guidelines on women asylum-seekers,

• a recommendation by the Council of Europe's Parliamentary Assembly in 1998,

• outside Europe, Canada, USA, Australia and South Africa have developed national guidelines.

• None of the 41 countries surveyed have officially adopted the UNHCR Gender Guidelines into their legislation or policy. Two countries (Sweden and UK) have produced their own guidance on the assessment of gender-related asylum claims, and a further eight (Norway, Lithuania, Switzerland, the Netherlands, Belgium, Finland, Germany, Czech Republic) have included some gender-related points within their general RSD policy or guidelines;

Sweden:

According to the Swedish Guidelines, women cannot be considered as members of a particular social group.

In 1997 the Swedish aliens act was amended. It now foresees a "gender clause" according to which persecution for gender reasons is included in the category of "aliens in need of protection". The recognition that can be granted under this clause is only complementary status.

UK:

In 2000 the Immigration Appellate authority produced Asylum Gender Guidelines, which can be considered the most comprehensive official gender guidelines in Europe, but first instance decision-makers are not bound by them and practice in general is not consistent.

Interpretation of persecution:

The UNHCR Gender Guidelines make clear that gender-related persecution encompasses a wide range of treatments and recognise that gender-specific forms of harm may constitute persecution within the meaning of the 1951 Convention.

(gender related violence= "serious harm"whether perpetrated by State or private actors)

The EU Qualification Directive states that persecution includes acts of physical or mental violence, including acts of sexual violence.

Despite this, the survey indicates that sexual violence is still considered by many decision-makers to be a private act rather than an act of persecution:

• Less than half of the countries (41.5%) have recognised sexual violence as a possible form of persecution, either in law, policy or case law (Austria, Belarus, Belgium, Denmark, France, Germany, Greece, Hungary, Ireland, the Netherlands Norway, Romania, Slovenia, Spain, Sweden, Switzerland and the United Kingdom);

According to Sweden Gender Guidelines, FGM and forced abortion are the only two forms of abuses which are exclusively gender specific.

UK gender guidelines list various examples of possible forms of persecution, but the application has been inconsistent; although sexual violence is recognised as a form of persecution by the UK authorities, there remains a strong tendency not to accept that this treatment is connected with a Convention reason.

In Germany, despite a general recognition that rape and other sexual violence amount to serious harm and constitute persecution, there is a common failure to recognise sexual violence as a form of persecution even where sexual violence has been carried out by State agents. This is the result of the position in Germany that the State itself needs to be responsible for abuse, and the view that sexual attack is inherently a private act.

The UNHCR Handbook and the UNHCR Gender Guidelines are clear that discrimination can amount to persecution. Separate measures of discrimination that do not in themselves amount to persecution may be considered together to be persecution on cumulative grounds. In addition, “separate measures of discrimination may give rise to a reasonable fear of persecution if they produce, in the mind of the person concerned, a feeling of apprehension and insecurity as regards his future existence”.

If the State, as a matter of policy or practice, does not accord certain rights or protection from serious abuse, then the discrimination in extending protection, which results in serious harm inflicted with impunity, could amount to persecution.

According to the EU Qualification Directive, EU Member states will be required to consider that discrimination can amount to persecution in certain cases.

• Just over half of the countries (56%) have recognised that in certain cases, discrimination can amount to persecution, either in law, policy or case law;

Discrimination is explicitly recognised as potentially constituting persecution in the United Kingdom and in Sweden, while German authorities have tended to take a more restrictive position.

• Refugee status has been granted in only a limited number of cases involving forced prostitution or sexual exploitation;

Based on questionnaire responses, there are three countries which have granted refugee status in at least one case of forced prostitution or sexual exploitation: France, Denmark, Austria. Six countries have in certain cases granted (at least) complementary protection in cases based on forced prostitution or sexual exploitation. These countries are: Belarus, Germany, Ireland, the Netherlands, Poland, and the United Kingdom.

In Europe, the emphasis to date has been on combating trafficking rather than protecting its victims.

There is a recent EU Council Directive on granting short-term residence permits to those who cooperate with the authorities, but this trend seems to go against international recommendations. The United Nations Recommended Principles and Guidelines on Human Rights and Human Trafficking recommend that: " States shall ensure that trafficked persons are protected from further exploitation and harm and have access to adequate physical and psychological care. Such protection and care shall not be made conditional upon the capacity or willingness of the trafficked person to cooperate in legal proceedings"

Persecution by non-state agents:

A failure of State protection exists 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.

There is evidence that women are more likely than their male counterparts to experience or fear persecution by individuals who are not directly connected to the State, and furthermore that they may be less able to obtain the protection of the State against such harm.

UNHCR Gender Guidelines state that “there is scope within the refugee definition to recognise both State and non-State actors of persecution” and they emphasise that State protection cannot be assumed on the basis that a certain act is illegal.

State practice in much of the world, though sometimes based on very different analysis, is overwhelmingly supportive of the position adopted by UNHCR, that persecution by non-State agents falls within the scope of the 1951 Convention refugee definition.

• However over a third of countries do not recognise persecution by non-State agents as falling within the definition of a refugee under the 1951 Convention;

Lithuania, Sweden and the UK recognise persecution by non-State agents, whilst Germany does so only if the persecution can be attributed to the State or a state-like entity.

The Qualification Directive has, in the main, taken a ‘protection’ position on non-State agents, equating national protection provided by States, with the exercise of a certain administrative authority and control over territory by international organisations on a transitional or temporary basis.

Interpretation of the Convention grounds:

The 1991 UNHCR Guidelines on the Protection of Refuge Women sought to promote acceptance in the asylum adjudication process of the principle that women fearing persecution or severe discrimination on the basis of their gender should be considered a member of a social group for the purposes of determining refugee status. They also made clear that where either the feared persecution or the lack of State protection is based on a Convention ground, the necessary causal link is established.

The "Serious Harm" OR the "Failure of State Protection" can be based on convention grounds (race, religion, nationality, PSG or political opinion).

Race and nationality do not engage gender-specific considerations.

The UNHCR Gender Guidelines make clear that women’s political activities can be different to men’s.

• Although a quarter of countries have recognised that women’s political activities may take a different form to men’s (including less direct actions such as hiding people, passing messages, or providing community services, food, clothing and medical care....) three quarters do not;

The UNHCR’s Gender Guidelines have made clear that where transgression to religious or social mores has taken place, or is considered to have taken place by the persecuting agents, there is a basis for granting refugee status.

• Just over a third of countries (39%) have recognised that persecution experienced (or feared) as a result of the failure to conform to religious mores as a basis may constitute a successful 1951 Convention refugee claim.

All of the case-study countries have to some extent recognised that transgression of religious or social mores can be the basis of a successful asylum claim, but practice is inconsistent in all countries.

NB: non conformist behaviour may be expression of a political opinion.

Imputed/attributed Convention ground:

The 1991 UNHCR Guidelines on the Protection of Refugee Women address the possibility that a women may be targeted for political reasons unconnected to her own activities. In many societies a women’s political views, race, nationality, religion or social affiliations, for example, are often aligned with relatives or associates or with those of her community.

The EU Qualification Directive states that “...it is immaterial whether the applicant actually possesses the racial, national, social or political characteristic, which attracts the persecutory action, provided that such a characteristic is attributed to him or her by the actor of persecution.”

• Around a half (51%) of the countries surveyed recognise the possibility of imputed Convention ground;

All of the case-study countries have recognised imputed Convention grounds to some degree, although only Sweden and the UK has done so explicitly in official guidance.

Gender-related persecution and Particular Social Groups:

According to UNHCR gender guidelines, a particular social group is a group of persons who share a common characteristic other than their risk of being persecuted, OR who are perceived as a group by society; sex can properly be within the ambit of the social group category; the size of the group should be irrelevant.

In 1984, the European Parliament adopted a resolution calling on all States to consider women who have been victims of persecution as belonging to a particular social group under the 1951 Convention.

The EU Qualification Directive requires both the immutable characteristic approach AND the social perception approach be fulfilled simultaneously.

• Only four of the countries surveyed as part of this research have guidance on how to define a particular social group, either in law, policy or case law. These countries are France, Lithuania, the Netherlands and the United Kingdom. (Among them, UK has the most developed guidance on defining a particular social group.)

• Just over a third of all countries surveyed in the research have recognised women or particular groups of women as members of a Particular Social Group under the 1951 Convention (NB in France two decisions by the appeal body in December 2001 found that parents who oppose the practice of FGM on their daughters could be considered members of a particular social group).

All of the case-study countries except for Sweden have recognised some groups of women as members of particular social groups. Considering gender as the defining characteristic of a particular social group has until now been explicitly ruled out by the Swedish government. However this position is now being reconsidered.

Procedural and evidential issues:

The UNHCR/San Remo Expert Roundtable in 2001 emphasised that “protection of refugee women not only requires a gender-sensitive interpretation of the refuge definition, but also a gender-sensitive refugee status determination procedure”.

Usually women have a more passive attitude, compared to men, in dealing with their asylum claim; the gender-defined roles assigned to women in many refugee-producing countries can result in an assumption (on behalf of both spouses, families and determining authorities) that a woman will not have her own asylum claim; use of sexual violence against women is common, and the trauma and shame often resulting from such treatment can be inhibiting and require particular sensitivity; gender-defined roles (such as the requirement that women be sexually ‘pure’) may make it even more difficult for women applicants to reveal details of past harm; gender-defined political activities may be more difficult to substantiate with evidence (e.g. proof of sheltering political activists is harder or impossible to obtain, compared with proof of party membership or activities).

Therefore women should have the right to submit a claim independently, they should be automatically provided with a female interviewer and interpreter and they should in any case be interviewed in a gender-sensitive environment (separately, without the presence of male family members...). They should be promptly informed about these rights.

• Around 40% of countries provide automatic and generally consistent access to procedures to all adults, including women who arrive with their husband or other male relative;

Among the case-study countries, Lithuania and Germany automatically provide separate access to procedures for women who arrive as part of a couple or family. In the UK and Sweden, women who arrive with a male partner or family member are entitled to make their own asylum claim, but there are no known measures to inform or reassure women about this.

The authorities in Germany, Lithuania, Sweden and the UK all generally provide privacy to all asylum-seekers when they are interviewed, including women applicants.

The EU Procedures Directive makes no reference to the provision of interviewers of the same sex as the applicant.

• At least one third of countries make reference to consideration of the interviewer’s gender in their law or policy. In a significant majority of countries surveyed (86.5%), some effort is made in practice to allow women to be interviewed by women, applicants in general to be interviewed by samesex interviewer, or particularly vulnerable applicants to have a choice but the extent of this effort varies considerably and in 15 of the 37 countries surveyed (40.5% - including Italy) attempts are made to accede to requests but there are practical difficulties.

Lithuanian asylum law strongly recommends that female asylum-seekers should be interviewed by female staff (but there are practical difficulties). In Germany, Sweden and the UK, requests for same-sex interviewers and interpreters are possible.

Training: UNHCR Gender Guidelines state that States should ensure that all those involved in refugee status determination are familiarised with the Gender Guidelines.

The EU Procedures Directive does not specify that training of this type is necessarily required.

• Fifteen countries out of 38 (39.5%) provide or have provided training on gender issues to all RSD caseworkers; eighteen countries out of 38 (47,.5%) provide or

have provided training on gender issues to at least some of their RSD caseworkers. In five countries (Belarus, Georgia, Malta, Poland, and the Russian Federation)

out of 38 (13%), RSD interviewers and decision-makers have received no training in gender issues.

The EU Procedures Directive contains no specific reference to the need to consider the possible effects of trauma.

• In just over a third of countries the possible effects of trauma are taken into account during the interviewing process but only six countries (Finland,

Germany, Ireland, Sweden, Switzerland and the United Kingdom) have specific policy guidelines which recognises that trauma should be taken into account when assessing an applicant’s credibility. Despite some examples of good practice it is of concern that in nearly two thirds (63%) of countries surveyed there is no particular consideration of the possible consequences of trauma;

The need for cultural sensitivity affects all asylum-seekers, but it can be particularly important for women, especially if they come from a culture where women’s demeanour is expected to be different to that expected in Western culture. (es. avoiding eye-contact).

• There is very little evidence that an understanding of cultural differences in demeanour is reflected in RSD procedures. Only three countries (Sweden, Ireland and Finland) explicitly consider cultural differences in demeanour in assessing credibility;

UNHCR 1991 guidance highlighted the importance of gender-specific Country of Origin Information. The guidance suggests that among the issues of which interviewers should be aware are: the position of women before the law, the political, social and economic rights of women, the incidence of reported violence against women, the possible consequences of their return.

UNHCR has recently recommended increased cooperation between European countries in the researching, assessment and collation of COI.

The Procedures Directive refers to the need for “precise and up-to-date information from various sources, such as information from UNHCR, as to the "general situation" prevailing in the countries of origin of applicants... It is noted that information on the ‘general situation’ in countries of origin may not be adequate to assess the circumstances of individual claimants.

• In 17 countries out of 41 (41.5%) the authorities produce COI on which to base their decisions in asylum cases. In just over three quarters of countries country of origin information generally includes gender-relevant information, but in most cases the quality and quantity of this information varies considerably.

The evidence collated during the course of this research indicates that there has been limited progress in Europe towards ensuring gender-sensitive interpretation of the 1951 Convention and gender-sensitive asylum procedures. Where progress has been made, implementation of key recognitions is inconsistent. One key example of this uneven progress is that authorities in less than half the countries surveyed have explicitly recognised that sexual violence can be a form of persecution. In the countries that do recognise this, individual decisions show that the application of this interpretation of persecution under the 1951 Convention is inconsistent.