The UN Committee for women’s rights has produced exciting new guidance on the rights of women seeking asylum, recognised as refugees, changing their nationality or at risk of statelessness. A summary of the main points (particularly relevant for the UK) follows below.
This new guidance should be looked at alongside other international law (as is often footnoted in the new guidance), the primary Convention (CEDAW, the bill of rights for women) and other General Recommendations, including GR. 19 on violence against women and GR. 26 on women migrant workers.
CEDAW/C/GC/32, 5 November 2014, General Recommendation No.32 on the gender-related dimensions of refugee status, asylum, nationality and statelessness of women.
The UN Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW) is an international bill of rights for women’s substantive equality. ‘General Recommendations’ are authoritative guidance notes on interpreting CEDAW in specific contexts set down by the UN CEDAW Committee.
General Recommendation No. 32 (‘the GR’) provides a gender-sensitive interpretation of Article 9 of CEDAW (right to nationality) and non-discrimination in related areas in the context of relevant human rights law. CEDAW reinforces and complements the international legal protection regime for refugee and stateless women and applies to all stages of the asylum, statelessness and nationality-changing process, including reception, determination and integration or return/resettlement.
Paragraphs 6 and 16 of the GR emphasise the obligation for states to recognise and prohibit intersecting forms of discrimination, including for LGBT women. Paragraphs 7 and 8 go on to set out that States bear primary responsibility for ensuring that asylum seeking, refugee, stateless or nationality applicants within their effective control or jurisdiction are not exposed to violations of their rights or any discrimination that directly or indirectly results in the denial of equal enjoyment of rights with men, even if this requires temporary affirmative action. States bear a duty of ‘due diligence’ to prevent and investigate any acts of discrimination.
Application to refugee law
The GR notes that the Refugee Convention definition of a refugee has been expanded by domestic and regional instruments and laws. All five grounds of persecution in the Refugee Convention must be interpreted applying a gender perspective, taking into account the cumulative or aggravated forms of discrimination that can amount to persecution against women (examples set out in paragraph 15). Gender related persecution is persecution that is directed against a woman because she is a woman or that affect women disproportionately. Harm to women and girls is often perpetrated by non-State actors and a government may be unable or unwilling to protect the claimant due to discriminatory policies or practices (paragraph 27). Women must not be stereotyped as victims by only placing their claims within ‘other social group’ (paragraph 31).
States should domestically recognise sex/gender/LGBT status as grounds for persecution (paragraphs 13, 30 and 38) as well as recognising victims of trafficking as refugees where they remain at risk (paragraph 45). “The Committee is concerned that many asylum systems continue to treat the claims of women through the lens of male experiences, which can result in their claims to refugee status not being properly assessed or being rejected…The definition in the 1951 Convention, properly interpreted, covers gender-related claims to refugee status” (paragraph 16).
Internal relocation alternatives
“The Committee recalls that articles 2 (d) and (e) of the Convention require that States parties ensure that women are protected against discrimination generated by non‑State actors and, in the context of a refugee woman, it observes that the essence of refugee status is to provide effective protection to the refugee woman. It also notes that, should the internal flight alternative be considered by receiving States, the option should be subject to strict requirements, such as the woman’s ability to travel to the area concerned and gain admittance and settle there. States should also take into account gender-related aspects and risks in the assessment as to whether internal relocation is permissible. Difficulties faced by women in relocating to other parts of their countries of origin can include legal, cultural and/or social restrictions or prohibitions on women travelling or living alone, practical realities such as problems of securing accommodation, childcare and economic survival without family or community support, and risk of harassment and exploitation, including sexual exploitation and violence” (paragraph 28).
In addition: “the Committee notes that the fact that a woman asylum seeker has not sought the protection of the State or made a complaint to the authorities before her departure from her country of origin should not prejudice her asylum claim, especially where violence against women is tolerated or there is a pattern of failure in responding to women’s complaints of abuse. It would not be realistic to require her to have sought protection in advance of her flight. She may also lack confidence in the justice system and access to justice or fear abuse, harassment or retaliation for making such complaints” (paragraph 29).
Reception and asylum processes
Articles 1-3, 5(a) and 15 of CEDAW establish an obligation on states to ensure the entire asylum process, from the moment of arrival, does not discriminate against women (paragraph 24). Reception staff, interviewers and decision makers should receive appropriate gender training and monitoring (paragraphs 44 and 47). Asylum seekers should have access to legal aid (paragraph 32).
Reception arrangements should take into account the specific needs of victims of sexual abuse, exploitation, trauma and torture (paragraph 34). Adequate, early screening mechanisms should identify asylum seekers with specific protection/assistance needs, such as women with disabilities, unaccompanied girls, victims of trauma/trafficking/sexual violence/torture/ill-treatment (paragraph 46).
States should not deem that a woman asylum seeker lacks credibility because she lacks documentation to support her claim, taking into account that women in many countries do not possess documentation (paragraph 43).
Paragraph 50 sets out that asylum procedures must provide a gender-sensitive environment:
- allowing for same-sex interviewers and interpreters,
- individual interviews of women without the presence of male family members,
- by having gender-sensitive policies and taking proper account of the impact of trauma, fear, rejection and shame on interviews and delayed disclosure (c.f. paragraph 25), in particular late disclosure of sexual violence should not automatically lead to an adverse credibility finding,
- by providing women asylum seekers with information about the process and competent legal representation in advance of the initial asylum interview,
- by providing unaccompanied asylum seeking children with a guardian to assist them through the asylum procedure,
- by using techniques and procedures sensitive to gender, age and other intersectional grounds of discrimination and disadvantage,
- by creating a supportive interview environment,
- by ensuring childcare is available during interviews,
- that there is a shared obligation to ascertain and evaluate all relevant facts between claimant and examiner and in some cases it will be for the examiner to use all means at his disposal to produce necessary evidence in support of the application,
- by maintaining the confidentiality of women’s interviews from other family members,
- all women are entitled to a proper appeal of first-instance decisions.
Women seeking asylum should have access, without discrimination, to an adequate standard of living, including accommodation, education, health care and other support, including food clothing and necessary social services, appropriate to their particular needs as women (paragraphs 33 and 48). Asylum seeking women should have access to appropriate psychosocial counselling before and after the asylum interview (paragraph 50(j)).
Durable solutions, integration and returns; immigration detention
States have an obligation to treat displaced women with dignity and respect and fulfil refugee women’s rights to the enjoyment of durable solutions (including access to proper accommodation, training, access to employment, legal, medical and psychosocial support and language classes, sensitive to the high levels of female illiteracy in some countries); any returns process for unsuccessful asylum seekers should be dignified and non-discriminatory (paragraphs 24, 33 and 48). No women should be expelled or returned where she would face serious forms of discrimination or breaches of her fundamental rights (paragraph 23). Women granted status should have their own individual documentation, but should be granted derivative status if their child is recognised as a refugee (paragraph 42).
As a general rule, pregnant women and nursing mothers, who both have special needs, should not be detained. Alternatives to detention should be made available; if detention of women is unavoidable then the conditions should meet the hygiene needs of women, female guards/warders should be promoted and all staff should receive training on the gender-specific needs of women. Failure to meet the needs of women in immigration detention decisions/conditions can constitute discrimination against women contrary to Articles 1, 2, 5(a) and 12 of CEDAW (paragraphs 34 and 49). Women should not be penalised (including by detention) for seeking asylum (paragraph 49). There should be appropriate monitoring and complaints mechanisms at reception facilities (paragraph 48).
States should report to the Committee on their national policy and gather sex-disaggregated statistical data; states should ensure adequate resources are made available to implement CEDAW (paragraphs 39-40). States should cooperate with the UNHCR and civil society asylum support organisations (paragraph 41).
Nationality and statelessness
Nationality is the legal bond between a person and a state and is critical for ensuring full participation in society and for guaranteeing the exercise of other rights. Article 9 of CEDAW is therefore essential and Article 9(2) provides for the same rights as men to acquire, retain or change nationality and transmit nationality to children. Women are more likely than men to seek to change their nationality to that of their foreign spouse upon marriage and are therefore at greater risk if there are any gaps within that process.
“Naturalization requirements may also indirectly discriminate against women because they may require the fulfilment of conditions or criteria that may be more difficult to meet for women than for men, such as acquiring proficiency in a host State’s language, which may be more difficult for women, including stateless women, who have suffered prior or current impediment of their right of access to formal education. Other requirements such as economic self-sufficiency or property ownership may also be more difficult for women to meet as individuals” (paragraph 55).
States should review their nationality laws and address any direct or indirect discrimination, including through naturalization requirements that may be more onerous for women to meet in practice than for men (paragraph 63).