This essay shall explore the treatment of women in theasylum system- particularly in the asylumprocess- by arguing that women arenot treated fairly within the system. This is because said system isconstructed in a patriarchal waythat doesn’t take into account theirvoices and experiences, which results in negative consequences for theclaimants. The essay will first outline the patriarchal construction of the process before demonstrating the issues women face in establishingpersecution and credibility.
It shall then outline ways that the process could be improved before concludingthat while women are treated poorly in the asylum system, reforming the asylumprocess could help combat this issue. A refugee is a person who “owing to a well founded fear of being persecuted for reasons of race,religion, nationality, membership of a particular social group or politicalopinion is outside his country of nationality and is unable or owing to suchfear, is unwilling to avail himself of the protection of that country…”1 An asylum seeker is a person seekingrefugee status in the event of a breakdown in relationship between themselvesand their country of origin. Judith Butler is a post-feminist philosopher whoproposed the idea of women being viewed as ‘theOther’ in society.2Influenced by Beauvoir’s work,3Butler theorised that gender is defined by what it is not- meaning that womenare defined by the fact that they are not men.4Men are the dominant figures in society thus their experiences and gendermannerisms shape what is accepted as the norm and are the standard by whichwomen are defined. As a result women are ‘the other’ in society simply because theyare not men. The relevance of this theory is thatit allows one to better understand how the constructionof the asylum system is laced with patriarchal elements that adversely affectwomen within the system. First,historically the letter of the law governing the asylum system has always beenthe same for men and women; thedifference is in the practice in the asylum process.
An example of this difference can be found in Bhabha’swork.5Bhabha mentions a series of cases whereby the women who were British citizenswere refused permission to be joined by their husbands who were not UK or EUcitizens. The reasoning for this being that the ‘main reason’ husbands marriedtheir wives was to come to Britain.6Despite the fact that the lettering of the law governing this area was the samefor men and women, it was often only men that had the right to be joined bytheir spouse.
7 It should be noted, however, thatthis area of law has seen recent reform8 and Bhabha’s findingsrelate to the immigration system.Although her work is still relevant as it exposes the patriarchalsocio-political climate that the asylum and immigration law was created andimplemented in. Additionally the differences in the way law is applied betweenmen and women is also noted by Bloch9 thus illustrating thatthese differences are present in the asylum system as well as the immigrationsystem. As this trend of unfair application of a gender neutral law was notreally challenged, a culture of unfairness towards women came into creation,which now governs the asylum system. As a result of this patriarchal construction of the asylumsystem, women’s voices and experiences are often ignored or overlooked becausethey go against the norm, which often results in unfair treatment. This unfairnesscan be found by looking at the issues women face when trying to establish persecution on thebasis of gender. With men’s experiences as the norm,the process ignores the presence of gender related issues that could amount topersecution. This often results in a high amount of women’s cases beingrejected.
Asylum Aid found thatthe UK Boarder Agency (UKBA) consistently makes the wrong decisions for womenseeking asylum, which then have to be corrected by immigration judges.10The report also showed that 42% of these decisionswere overturned on appeal- quite above the average for all asylum cases (which is just 28%).11 A proposed reason for this poor decision making is that the UKBA donot adequately consider the legal entitlement to protection provided tovictims of gender-related persecution under the Refugee Convention.12 One couldargue that the reason for this finding is because women’s refugee situationsare “less politically visible”13compared to men’s and are often overlooked. For example, women arefrequently part of the support structure for political activity – they providesafe houses and warning signals for others.14 However, during the process of identifyingforms of persecution, less weight or significance are attached to women’ssecondary role and associated activities, as these are not viewed aslegitimate political activity.15This could often result in women’s’ claims beingrejected because they are unable to satisfy the persecution requirement. Theexperiences women face as a result of their status and role in society are notproperly acknowledged by the system; thus the ranges of human rights abuses theymay be exposed to as a result are also ignored.
16 Therefore, casesinvolving said experiences cannot be addressed properly and are likely to bedecided unfairly. Additionally, it should be notedthat gender based persecution is notincluded in the Convention. This in itself istelling because it means that there is no statutory framework governing thisissue. The law in this area has been instead governed by common law.17 The case of Shah and Islam18was important in developing thisarea of law because it set the foundation for dealing with gender basedpersecution claims. It was held that discrimination against women and arefusal to protect them against domestic violence, could make them a socialgrouping but each claim to refugee status case must alwaysdepend on the evidence.19 Shah essentially set the precedent that claims of this nature mustbe decided on a case-by-case basis.
An advantage of this approachis that the absence of a statutory provision provides some flexibility indecision-making. The complex nature of these cases can thus be addressed takinginto account the specific facts of that case. Onthe other hand, it also means that a lack of legislative framework forgender-based persecution can hinder the individual’s asylum application.20 There is moreevidence supporting the latter as Shah’sprecedent has not been strong enough to effect significant change in treatmentof gender persecuted claims.
Over a decade later as there is still significantevidence21showing that most cases are taken at face value and that there is a generalunwillingness to decide gendered persecution claims according to their evidence.If the claims do not easily fit into the Convention then it is very likely tofail. Therefore, this unwillingness todecide cases past the narrow definition of the Convention is another reasonwomen are treated unfairly in the in the asylum process and why it needs to be reformed.The ratio of the cases are quite clear andthe wording of the Convention is gender neutral, the main reason these legal instrumentshave not had much of a positive impact on the treatment of women in the asylumsystem is because they have not been applied to give that effect. Thussuggesting that it may not be the law that is the problem but rather it’sinterpretation within the asylum process. Another aspect of the system where women are treatedunfairly is during the process ofestablishing credibility. This is especially apparent in claimsrelating to sexual assault.
1The Refugee Convention 1951, Art 1A(2)2Judith Butler, Gender Trouble: Feminism and the Subversion ofIdentity (Routledge1990)3Simone de Beauvoir, “What is a woman?” The Second Sex (Editions Gallimard 1949) 134Butler (n 2) ch 55 Jacqueline Bhabha and Sue Shutter, Women’s Movement: women under immigration,nationality and refugee law (Trentham Books 1994)6 ibid, 17 ibid8Immigration Rules Appendix FM: Family Members9Alice Bloch, Treasa Galvin and Barbara Harrell- Bond, ‘Refugee Women In Europe:Some Aspects of The Legal and Policy Dimensions’ (2000) 38 InternationalMigration 169 10 Helen Muggeridge and Chen Maman,’Unsustainable: the quality of initial decision-making in women’s asylumclaims’ (Asylum Aid January 2011) 511ibid12ibid, 613Bloch (n 9), 17114N. Finch and J. Coker, ‘Doesthe Refugee Convention protect women or is it blind to issues of gender?’ (1996)10(3) Immigration and Nationality Law and Practice 8315Bolch (n 9) 17216Julie Bissland and Kathleen Lawand, ‘Report of the UNHCR symposium ongender-based persecution’ (1997) 9 Int’l J. Refugee L.
1317Fornah v SSHD 2006 UKHL 46181999 2 AC 62919ibid20Bloch (n 9) 17321Bloch (n 9); Helen Baillot,Sharon Cowan and Vanessa E. Munro, ‘Reason to Disbelieve: Evaluating the RapeClaims of Women Seeking Asylum in the UK’ (2014) 10 International Journal ofLaw in Context 105; Melanie Randall, ‘Refugee Law and State Accountability forViolence Against women: A Comparative Analysis of Legal Approaches toRecognizing Asylum Claims Based in Gender Persecution’ (2002) 25 Harv. Women’sL.J. 281