Women as a Particular Social Group: A Comparative Assessment of Gender Asylum Claims in the United States and United Kingdom
44 Pages Posted: 11 May 2013
Date Written: 2012
The 1951 Convention Relating to the Status of Refugees ("Convention") has not protected refugee women on par with refugee men. Its refugee definition is often interpreted through a male paradigm, leading to rejection of women's claims even though the Convention's scope encompasses women who flee gender persecution.
It is important for common-law states to construe the Convention uniformly (1) to ensure equitable, consistent treatment of refugees, and (2) because most common-law states consider other states’ particular social group jurisprudence as persuasive authority. However, common-law states do not currently interpret the Convention uniformly. The United Kingdom and United States were selected as case studies due to material differences in their particular social group jurisprudence. The U.K. House of Lords has granted asylum to gender persecution victims based on their membership in the particular social group of “women” in their home states, but the U.S. Supreme Court has not addressed this issue. The lower U.S. courts rarely recognize “women” as a particular social group; they either deny gender asylum claims or grant relief via a more narrowly-defined particular social group.
These case studies highlight three failures of current asylum policy. First, the Convention requires recognizing “women” as a particular social group. This allows adjudicators to consider all gender persecution that a refugee fears, rather than a single harm in isolation; the latter often happens when a narrowly-defined particular social group is used. However, adjudicators in both states, but particularly the United States, resist recognizing “women” as a particular social group for fear of opening the proverbial floodgates. Second, both states are slow to grant asylum based on gender persecution where the feared harm (1) exists in the asylum-granting state, such as domestic violence, or (2) arises for cultural reasons in the applicant’s home state, such as FGC. Third, in the last asylum determination step, adjudicators may erroneously conclude that the refugee has an “internal flight alternative” — i.e., that she can avoid her persecutors (usually non-state actors) by relocating within her home state. This erroneous determination is more common in the United Kingdom, because its gender asylum claimants are more likely to reach this final analytical step.
This paper proposes a framework for gender asylum adjudication derived from the case studies. First, adjudicators should recognize that gender persecution merits asylum regardless of its prevalence in the asylum-receiving state or its purported cultural justifications. Second, they should assess whether the applicant’s home state effectively protects against gender persecution, including enforcement of relevant laws. Third, they should consistently recognize “women” as the relevant particular social group, permitting holistic consideration of all relevant gender persecution. Fourth, the individualized internal flight alternative analysis should distinguish refugees who can relocate internally from those who require surrogate international protection because they cannot. Fifth, the United Kingdom should cease — and the United States should not start — requiring gender asylum claimants to prove two failures of state protection: (1) in their individual case, to establish persecution, and (2) with respect to women generally in their home state, to establish that a particular social group exists.
Keywords: asylum, gender, gender asylum, gender persecution, particular social group, Refugee Convention, female genital mutilation, female genital cutting, domestic violence, comparative law
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