Gender in Refugee Law

From the Margins to the Centre

Efrat Arbel, Catherine Dauvergne, Jenni Millbank, Efrat Arbel, Catherine Dauvergne, Jenni Millbank

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781135038106
• Edition: 1
• Topic: Derecho
• Subtopic: Derecho migratorio

Questions of gender have strongly influenced the development of international refugee law over the last few decades. This volume assesses the progress toward appropriate recognition of gender-related persecution in refugee law. It documents the advances made following intense advocacy around the world in the 1990s, and evaluates the extent to which gender has been successfully integrated into refugee law.

Evaluating the research and advocacy agendas for gender in refugee law ten years beyond the 2002 UNHCR Gender Guidelines, the book investigates the current status of gender in refugee law. It examines gender-related persecution claims of both women and men, including those based on sexual orientation and gender identity, and explores how the development of an anti-refugee agenda in many Western states exponentially increases vulnerability for refugees making gendered claims. The volume includes contributions from scholars and members of the advocacy community that allow the book to examine conceptual and doctrinal themes arising at the intersection of gender and refugee law, and specific case studies across major Western refugee-receiving nations. The book will be of great interest and value to researchers and students of asylum and immigration law, international politics, and gender studies.

1 Why we are not there yet

The particular challenge of ‘particular social group’

Michelle Foster¹

Introduction

One of the most complex aspects of establishing qualification for refugee status is the need to link a well-founded fear of being persecuted to a Convention ground, that is, to one’s race, religion, nationality, political opinion, or membership of a particular social group (PSG). While this constitutes a challenging aspect of refugee status determination in many types of claim, the difficulties are particularly acute for claims based on gender or gender identity given the lack of explicit reference to ‘women’, ‘sex’, ‘gender’, ‘homosexuality’, or ‘gender identity’ in the 1951 Refugee Convention. Of course it has always been understood that women can be persecuted on other grounds, and indeed the ‘political opinion’ ground is especially promising, as illustrated in one New Zealand tribunal’s understanding that ‘the political opinion ground must be oriented to reflect the reality of women’s experiences and the way in which gender is constructed in the specific geographical, historical, political and socio-cultural context of the country of origin’ (Refugee Status Appeals Authority (‘RSAA’) Decision 76044, 2008 [84]). Yet this level of sophistication has not been uniformly achieved, and it remains undoubtedly the case that the PSG ground is, in most jurisdictions, the only available Convention ground where gender-based persecution is at issue.

Although the Conference of Plenipotentiaries responsible for drafting the Refugee Convention considered it unnecessary explicitly to refer to gender inequality, even raising doubts as to whether there ‘would be any persecution on account of sex’, it has long been accepted that the social group ground is capable of accommodating gender-based claims (Edwards 2010, 23). This proposition has been accepted and affirmed by the highest courts in the common law world and increasingly in the civil law world as well, including in the European Union’s ‘Qualification Directive’ (Council Directive 2004/83/EC).² Further, the United Nations High Commissioner for Refugees (UNHCR) has recognized since the 1980s the importance of infusing the refugee definition with gender-sensitivity, and, in 2002, explicitly affirmed that ‘sex can properly be within the ambit of the social group category’, in both its Guidelines on International Protection relating to membership of a particular social group (UNHCR 2002b, [12]) and Guidelines on International Protection concerning gender-related persecution (UNHCR 2002a, [30]).

Yet despite these positive developments, establishing that her well-founded fear of being persecuted is for reasons of her gender remains a pervasive challenge for many women claiming refugee status. This chapter examines and explores current challenges in interpreting social group for claims based on gender and gender identity. It begins with a brief overview of the key conceptual approaches to interpreting the social group ground, outlining and explaining the two dominant approaches. The chapter then analyses a wide range of jurisprudential developments, both common law and civil law, concerning social group over the past ten years in order to identify why many gender-based claims fail at this crucial stage. The chapter concludes by making some recommendations that might guide decision-making in the future.

Interpreting the ‘membership of a particular social group’ ground

While each of the Convention grounds has been examined in case law across a very wide range of States Parties, none has been subject to the degree of rigorous scrutiny, debate, and conflicting interpretative approaches as the most nebulous of the grounds: ‘membership of a particular social group’. Due to several factors, including its last minute insertion by the drafters devoid of any explanation as to their intended meaning, its arguable lack of self-evident ‘ordinary meaning’, and its concomitant ability to encompass a wide range of evolving contemporary claims, it has proven to be a promising yet highly controversial element of the refugee definition.

Although at an earlier time there were various tests adopted in different jurisdictions, many of these are now widely rejected. This has overwhelmingly constituted a positive development for gender-based claims. First, there is general agreement that there is no requirement to establish a ‘voluntary, associational relationship’ to constitute a PSG (UNHCR 2002b, [15]). As Posner J of the United States Court of Appeals for the Seventh Circuit noted in Sepulveda, ‘[t]he word “social” is obviously not intended to confine the category to bridge clubs and the like’ (Sepulveda v Gonzales (‘Sepulveda’) 2006, [4]). On the contrary, many targeted groups such as women, children, lesbian, gay, bisexual, transgender, or intersex (LGBTI) individuals have no such relationship, yet are often considered quintessential examples of social groups in refugee law.

Second, there is no requirement that the group be homogeneous or exhibit any degree of internal cohesion; rather, as the (then) Chief Justice of the High Court of Australia Gleeson noted, ‘cohesiveness may assist to define a group; but it is not an essential attribute of a group. Some particular social groups are notoriously lacking in cohesiveness’ (Minister for Immigration and Multicultural Affairs v Khawar (‘Khawar’) 2002, [33]; see also UNHCR 2002b, [15]).

Third, neither the fact that a group is small (for example a family) nor that it is potentially very large (e.g. women) will necessarily prevent it from falling within the rubric of PSG for Convention purposes (see the Australian case of Applicant A and another v Minister for Immigration and Ethnic Affairs and Another (‘Applicant A’) 1997, 241; see also UNHCR 2002b, [18–19]). The issue of size tends to arise more frequently in the context of very large PSGs given the implicit floodgates concerns which can underpin the determination of such claims; yet, as Gleeson CJ noted in the Australian case of Khawar, ‘[i]t is power, not number, that creates the conditions in which persecution may occur’ (Khawar 2002, [33]; see also UNHCR 2002b, [18]).³

Fourth, it is well-established that a social group cannot be defined merely on the basis of a shared fear of being persecuted because, as Dawson J of the High Court of Australia explained in Applicant A:

There is more than a hint of circularity in the view that a number of persons may be held to fear persecution by reason of membership of a particular social group where what is said to unite those persons into a particular social group is their common fear of persecution.

(Applicant A 1997, 242)⁴

Finally, it is well accepted in principle that, just as is the case in respect of the other Convention grounds such as race and religion, it is not necessary for an applicant to establish that all members of a social group are at risk in order to establish its existence (see the UK case of Fornah 2007, [444] (Lord Hope), [456] (Lord Rodger), [467] (Baroness Hale); UNHCR 2002b, [17]; and Tribunal Supremo of Spain in STS 6862/2011 for a civil law case).

Having identified what is not required or determinative in interpreting the ‘social group’ ground, the question arises whether it is possible to identify a dominant approach to interpretation. There are today two distinct approaches: ejusdem generis or ‘protected characteristics’, and ‘social perception’.

The ejusdem generis or protected characteristics approach originated in the decision of the United States Board of Immigration Appeals (‘BIA’) in Re Acosta in 1985 (‘Acosta’), but its influence has transcended the United States context such that it now represents the dominant approach among common law countries. In developing this approach, the BIA found

the well-established doctrine of ejusdem generis, meaning literally, ‘of the same kind’, to be most helpful in construing the phrase ‘membership in a particular social group’. That doctrine holds that general words used in an enumeration with specific words should be construed in a manner consistent with the specific words.

(Acosta 1985, 233)

Applying this principle of construction to the refugee definition, the BIA noted that each of the other grounds ‘describes persecution aimed at an immutable characteristic: a characteristic that either is beyond the power of an individual to change or is so fundamental to individual identity or conscience that it ought not be required to be changed’ (Acosta 1985, 233). The BIA concluded that in applying the doctrine of ejusdem generis, PSG should be interpreted

to mean persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic. The shared characteristic might be an innate one such as sex, colour, or kinship ties, or in some circumstances it might be a shared past experience such as former military leadership or land ownership.

(Acosta 1985, 233, emphasis added)

This approach was adopted by the Supreme Court of Canada in Canada (Attorney General) v Ward (‘Ward’) in 1993, although in Ward the distillation of the content of ‘particular social group’ was based more explicitly on finding ‘inspiration in discrimination concepts’ (Ward 1993, 734). The Court explained that the Acosta approach is consistent with the object and purpose of the Convention as it takes into account the ‘general underlying themes of the defenc...