Women have historically found it more difficult to qualify for refugee status than men. The 1951 Convention relating to the status of a refugee promises protection for refugees following the Second World War and Europe's inadequate response to those fleeting Nazism. However, not everyone who is fleeing danger or violence qualifies as a refugee under this Convention.
Baroness Hale in the case of Foranah said: "Very bad things happen to a great many people and the international community has not committed itself to giving them all safe haven." To qualify for recognition as a refugee, a claimant must demonstrate that they have a well-founded fear of being persecuted which prevent them from returning home, and that they fear persecution for reasons of race, religion, nationality, membership of a particular group or political opinion. Because the Convention is now over 60 years old, the Courts of the countries applying it developed and reinterpreted the definition in response to the demands for protection for new groups or from new forms of persecution.
I am particularly interested in women and the Refugee Convention. The wording of the Refugee Convention does not include sex or gender and it is only recently that forms of persecution against women have actually been recognised. For years, persecution was something that was carried out by states or by rulers against political dissenters. It was not something that was happening in the private domain. Traditionally, the practice affecting women usually happened in the home and related to the domestic and private sphere. I had the privilege of being part of the Refugee Legal Group and drafting the gender interpretation guidance for the Home Office to use; it was in the1990s and 2000s that following Canada and New Zealand's Courts, it was recognised that there are particular forms of persecution to which women and girls were uniquely susceptible.
In our practice we usually try to assist women asylum seekers under the membership of a particular social group category of the Refugee Convention. In 1999 it was established that the words 'social group', mean recognisable characteristics similar to race or religion. In all societies women are perceived as different from men and in most societies, women have less power and are subject to discrimination in employment and other fields and to sexual and domestic violence. When there is institutionalised discrimination and no effective protection against violence, these women will escape and claim asylum abroad and should be recognised as refugees for reasons of their membership of a particular social group defined by their gender.
I remember with delight the first time that I read the famous case Shah v Islam where the House of Lords held in 1999 that women from Pakistan who faced serious domestic violence against which they would not be protected by the authorities because of the discrimination against women in Pakistan, would qualify as refugees. The Home Office tried to argue that it was the husbands and not the state that the women feared and that therefore that it was a private matter. But to the women's rescue came Lord Hoffmann, who stated:
"Domestic violence such as was suffered by the appellants in Pakistan is regrettably by no means unknown in the United Kingdom. It would not, however, be regarded as persecution within the meaning of the Convention. This is because victims of violence would be entitled to protection by the State … what makes it persecution in Pakistan is the fact that the state was unwilling or unable to offer any protection." In other words, the Judges found that it was useless for Ms Islam as a woman to complain to the police or to the Courts about her husband's conduct, because the police were likely to accept her husband's allegations of infidelity and arrest her instead. The evidence of men would always be more credible than that of women and if she was convicted of infidelity, the penalties could be severe. Even if she was not prosecuted as a woman, separated from her husband she would be socially recognised as vulnerable to attack, even murder, at the instigation of her husband or his political associates. Thank you Lord Hoffmann!
He also recognised that the concept of discrimination affecting fundamental rights and freedoms is essential to the understanding of the Convention. He said that the concept of a social group is, in his view, perfectly adequate to accommodate women as a group in a society which discriminates on the grounds of sex. The fact that the state is unable to protect the women is nothing personal; the evidence that the state would not assist them because they were women and the denial of protection against violence which would have been given to men in Pakistan, that is the persecution. The lack of protection against violence by men is therefore discriminatory against women. Discrimination for the purpose of the Convention is a critical element in persecution and Lord Hoffmann concluded by saying that Mrs Shah feared persecution because she was a woman. This was a groundbreaking decision. Women fleeing domestic violence in countries such as Afghanistan, Albania, China, Ethiopia, Iran, Sierra Leone etc. have been recognised as refugees on the basis of this entrenched discrimination and lack of state protection in their countries of origin.
We work in representing women asylum seekers who fear persecution because of their profiles as westernised and lone women. Currently we are instructed on behalf of a young woman who faces persecution in Iraq because of her profile as a westernised lone woman. We will argue that westernised individuals and those with imputed links or associations have become adversely conceptualised to put them at risk of harm. The current anti-Western sentiments in Iraq are partly rooted in the colonial history of Iraq and partly caused by the Gulf Wars, which were led by the US and led to serious impacts on the Iraqi population such as violence, displacement etc. Some Iraqis view the Western intervention as an inappropriate interference by the West against Iraqi sovereignty, and Iraqi armed groups and militias have been known to harbour anti-Western ideologies. Those forces have been attacking and harming people they perceive as Westernised. An Amnesty International report of 2021, 'Journalists must be released immediately' reported that Westernised Iraqis have been met with accusations of being Western spies in Iraq and received harassment, abuse and violence.
We have instructed a Country Expert to look into the specific characteristics of our client and in assessing this case, he had to take into account the fact that she is a Westernised female and if returned to Iraq will encounter some dangers if she appears to wear Western style clothing or act in a way that is more Western than Iraqi.
What is a Westernised woman?
The concept of Westernisation in Iraq can be described as a term to describe groups who are perceived as transgressing moral codes. With regard to lone women, which is the status of our client (as in her lack of male family members within Iraq who she could live with or rely upon in the event of return), such status opens additional areas of vulnerability. Women living alone in Iraq are not generally accepted as it is considered to be inappropriate behaviour. According to the Finnish Immigration Service 'Overview of the status of women living without a safety net in Iraq' [2018] without family to protect her, an unmarried woman is vulnerable because by tradition unmarried women must be taken care of by their families. The heightened risk for women in this position is from sexual assault and harassment. Sexual assault cases, for example, are required to be dropped if the perpetrator marries the survivor, with the provision preventing divorce within the first three years of marriage. One can see how some women would be forced to marry their attackers and be further abused within the marriage. Also other forms of gender based violence exist in Iraq such as domestic violence, FGM, and aside from direct violence and harassment, lone women also face social discrimination in terms of obtaining employment as a single woman. She would not be seen as a viable worker, compared to men because they are usually expected to get married and have children, meaning they will not stay in work for long. This type of woman could also not relocate effectively and safely within Iraq because of the risk of kidnapping and death, which can take place anywhere. Kidnapping in Iraq is quite common and usually a very violent and fatal crime. Westernised individuals are often viewed as wealthy in Iraq and thus often at a heightened risk of kidnapping and ransom. The United Kingdom's travel advice now states that there is a risk of kidnapping attempts on vehicles of non-Governmental organisations and there is an elevated kidnap risk to US citizens in Bagdad and wider Iraq.
The same Finnish Immigration Service also comments that all of the police stations where women can report violence are staffed by male officers and that there are reports of male officers refusing to report cases relevant to services being aggressive towards women, making them feel unsafe and if there are any protection services for women based in Iraq, they are reconciliation based. This means that when women report gender abuse to family protection units which are tasked with resolving cases of domestic family or sexual honour based or gender violence, the primary focus is on achieving reconciliation of the women with her family rather than offering protection from them specifically.
It is our job as human rights lawyers and as asylum specialists, to make sure that the Home Office accepts that there are many forms of harm that are more frequently or only used against women, and that discrimination may amount to persecution in countries where serious legal, cultural or social restrictions are placed upon women.
It is best practice where an asylum claim is being made or refused, that the woman will have the benefit of an applicable country guidance as evidence. In order that women's asylum claims to be successful, the background evidence needs to be supportive, and country expert and medical expert reports should be sources wherever possible. Cultural disbelief in the Home Office and sometimes poor quality of legal advice means that many women who have compelling claims under the terms of the Refugee Convention, are refused asylum. Refusal of asylum is traumatic for the women and women who are refused asylum are often left destitute. Destitution makes women who are already surviving violence vulnerable to further abuse. Women who seek asylum make up a very small proportion of migrants to the UK and it is time that the asylum process treat these women with respect and enables them to rebuild their lives.