This particular social group or political opinion is

This essay shall explore the treatment of women in the
asylum system- particularly in the asylum
process- by arguing that women are
not treated fairly within the system. This is because said system is
constructed in a patriarchal way
that doesn’t take into account their
voices and experiences, which results in negative consequences for the
claimants. The essay will first outline the patriarchal construction of the process before demonstrating the issues women face in establishing
persecution and credibility. It shall then outline ways that the process could be improved before concluding
that while women are treated poorly in the asylum system, reforming the asylum
process 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 political
opinion is outside his country of nationality and is unable or owing to such
fear, is unwilling to avail himself of the protection of that country…”1 An asylum seeker is a person seeking
refugee status in the event of a breakdown in relationship between themselves
and their country of origin. Judith Butler is a post-feminist philosopher who
proposed the idea of women being viewed as ‘the
Other’ in society.2
Influenced by Beauvoir’s work,3
Butler theorised that gender is defined by what it is not- meaning that women
are defined by the fact that they are not men.4
Men are the dominant figures in society thus their experiences and gender
mannerisms shape what is accepted as the norm and are the standard by which
women are defined. As a result women are ‘the other’ in society simply because they
are not men.

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The relevance of this theory is that
it allows one to better understand how the construction
of the asylum system is laced with patriarchal elements that adversely affect
women within the system. First,
historically the letter of the law governing the asylum system has always been
the same for men and women; the
difference is in the practice in the asylum process.  An example of this difference can be found in Bhabha’s
work.5
Bhabha mentions a series of cases whereby the women who were British citizens
were refused permission to be joined by their husbands who were not UK or EU
citizens. The reasoning for this being that the ‘main reason’ husbands married
their wives was to come to Britain.6
Despite the fact that the lettering of the law governing this area was the same
for men and women, it was often only men that had the right to be joined by
their spouse.7

 

It should be noted, however, that
this area of law has seen recent reform8 and Bhabha’s findings
relate to the immigration system.

Although her work is still relevant as it exposes the patriarchal
socio-political climate that the asylum and immigration law was created and
implemented in. Additionally the differences in the way law is applied between
men and women is also noted by Bloch9 thus illustrating that
these differences are present in the asylum system as well as the immigration
system. As this trend of unfair application of a gender neutral law was not
really 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 asylum
system, women’s voices and experiences are often ignored or overlooked because
they go against the norm, which often results in unfair treatment. This unfairness
can be found by looking at the issues women face when trying to establish persecution on the
basis of gender. With men’s experiences as the norm,
the process ignores the presence of gender related issues that could amount to
persecution. This often results in a high amount of women’s cases being
rejected.  Asylum Aid found that
the UK Boarder Agency (UKBA) consistently makes the wrong decisions for women
seeking asylum, which then have to be corrected by immigration judges.10
The report also showed that 42% of these decisions
were 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 do
not adequately consider the legal entitlement to protection provided to
victims of gender-related persecution under the Refugee Convention.12

 

One could
argue that the reason for this finding is because women’s refugee situations
are “less politically visible”13
compared to men’s and are often overlooked. For example, women are
frequently part of the support structure for political activity – they provide
safe houses and warning signals for others.14
 However, during the process of identifying
forms of persecution, less weight or significance are attached to women’s
secondary role and associated activities, as these are not viewed as
legitimate political activity.15
This could often result in women’s’ claims being
rejected because they are unable to satisfy the persecution requirement.  The
experiences women face as a result of their status and role in society are not
properly acknowledged by the system; thus the ranges of human rights abuses they
may be exposed to as a result are also ignored.16 Therefore, cases
involving said experiences cannot be addressed properly and are likely to be
decided unfairly.

 

Additionally, it should be noted
that gender based persecution is not
included in the Convention. This in itself is
telling because it means that there is no statutory framework governing this
issue. The law in this area has been instead governed by common law.17  The case of Shah and Islam18
was important in developing this
area of law because it set the foundation for dealing with gender based
persecution claims. It was held that discrimination against women and a
refusal to protect them against domestic violence, could make them a social
grouping but each claim to refugee status case must always
depend on the evidence.19 Shah essentially set the precedent that claims of this nature must
be decided on a case-by-case basis. An advantage of this approach
is that the absence of a statutory provision provides some flexibility in
decision-making. The complex nature of these cases can thus be addressed taking
into account the specific facts of that case. On
the other hand, it also means that a lack of legislative framework for
gender-based persecution can hinder the individual’s asylum application.20 

 

There is more
evidence supporting the latter as Shah’s
precedent has not been strong enough to effect significant change in treatment
of gender persecuted claims. Over a decade later as there is still significant
evidence21
showing that most cases are taken at face value and that there is a general
unwillingness to decide gendered persecution claims according to their evidence.

If the claims do not easily fit into the Convention then it is very likely to
fail. Therefore, this unwillingness to
decide cases past the narrow definition of the Convention is another reason
women are treated unfairly in the in the asylum process and why it needs to be reformed.

The ratio of the cases are quite clear and
the wording of the Convention is gender neutral, the main reason these legal instruments
have not had much of a positive impact on the treatment of women in the asylum
system is because they have not been applied to give that effect. Thus
suggesting that it may not be the law that is the problem but rather it’s
interpretation within the asylum process.

 

Another aspect of the system where women are treated
unfairly is during the process of
establishing credibility. This is especially apparent in claims
relating to sexual assault.

1
The Refugee Convention 1951, Art 1A(2)

2
Judith Butler, Gender Trouble: Feminism and the Subversion of
Identity (Routledge
1990)

3
Simone de Beauvoir, “What is a woman?” The Second Sex (Editions Gallimard 1949) 13

4
Butler (n 2) ch 5

5 Jacqueline Bhabha and Sue Shutter, Women’s Movement: women under immigration,
nationality and refugee law (Trentham Books 1994)

6 ibid, 1

7 ibid

8
Immigration Rules Appendix FM: Family Members

9
Alice Bloch, Treasa Galvin and Barbara Harrell- Bond, ‘Refugee Women In Europe:
Some Aspects of The Legal and Policy Dimensions’ (2000) 38 International
Migration 169

10 Helen Muggeridge and Chen Maman,
‘Unsustainable: the quality of initial decision-making in women’s asylum
claims’ (Asylum Aid January 2011) 5

11
ibid

12
ibid, 6

13
Bloch (n 9), 171

14
N. Finch and J. Coker, ‘Does
the Refugee Convention protect women or is it blind to issues of gender?’ (1996)
10(3) Immigration and Nationality Law and Practice 83

15
Bolch (n 9) 172

16
Julie Bissland and Kathleen Lawand, ‘Report of the UNHCR symposium on
gender-based persecution’ (1997) 9 Int’l J. Refugee L. 13

17
Fornah v SSHD 2006 UKHL 46

18
1999 2 AC 629

19
ibid

20
Bloch (n 9) 173

21
Bloch (n 9); Helen Baillot,
Sharon Cowan and Vanessa E. Munro, ‘Reason to Disbelieve: Evaluating the Rape
Claims of Women Seeking Asylum in the UK’ (2014) 10 International Journal of
Law in Context 105; Melanie Randall, ‘Refugee Law and State Accountability for
Violence Against women: A Comparative Analysis of Legal Approaches to
Recognizing Asylum Claims Based in Gender Persecution’ (2002) 25 Harv. Women’s
L.J. 281

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