The Impact of Gender Stereotypes in Asylum Claims. A Substantive and Procedural Analysis

Thèse de Master , 61 Pages , Note: A

Droit - Droit public / Droit constitutionnel / Droits fondamentaux

This thesis aims to highlight the substantive and procedural gender-based obstacles faced by women asylum seekers in the context of refugee law. For Centuries, displacements of individuals have always been motivated by various reasons: social, cultural but also legal changes needed to be implemented to adapt to new displacements of people. For example, the ‘migration crisis’ of 2015 has challenged the EU Member States and European actors to adjust and implement new instruments. For years, the visibility of women in migrations has been becoming increasingly evident, deconstructing some of the established social and
cultural paradigms based on the roots of our societies. Solutions implemented by the EU Member States do not have to undermine the values of the European Union and drive its integration, such as solidarity, hospitality, and responsibility. Therefore, inclusiveness and change have to be included in legal instruments for better reception of current and future displacements of people.

Table of content

Table of content

List of abbreviations

Introduction
Research Framework
Research question
Method of research

Chapter 1 – Theoretical outlook
Section 1- General background
1.1.1) The feminisation of displacement: from invisible to visible
1.1.2) Persecution and women
1.1.3) Definition of gender-based persecution
Section 2- Convention grounds
1.2.1) Universalism of the 1951 Geneva Convention
1.2.2) Women and "membership of a particular social group”
Concluding Remarks

Chapter 2- EU Asylum framework and gender
Section 1- Procedural framework and gender stereotypes
2.1.1) Credibility Assessment and women asylum seekers
2.1.2) Analysis of Gender stereotypes in procedure of asylum
2.1.3) The framework of interviews and the accentuation of gender stereotypes
Section 2- Reception and Gender
2.2.1) Legal framework
2.2.2) Gender-based violence in reception centres
2.2.3) Example of a structure of reception and impact on women asylum seekers: the Direct Provision in Ireland
Concluding remarks

Chapter 3- Further reflection and propositions of improvement
3.1) Legal instruments
3.1.1) Imprecisions of the QD
3.1.2) Reception Directive and Human Rights
3.1.3) Proposal for establishing a common procedure
3.2) EU institutions and actors
3.2.1) Top-down improvements (from EU institutions and actors)
3.2.2) Bottom-up improvements (From Member states)

General Conclusion

Appendices

Bibliography
Table of cases
Table of legislation
Conventions
Protocol
Directives
Secondary sources
Books
Journals
Official publications and websites
Conferences and others

Acknowledgments

My acknowledgments to my supervisor, Professor Patricia Brazil for her help, her guidance and her very interesting course of Contemporary issues in Refugee Law.

My sincere gratitude to Professor Pendergast who allowed me to choose this topic.

Finally, special thanks to my friends and my parents for their support.

Summary

This thesis aims to highlight the substantive and procedural gender-based obstacles faced by women asylum seekers in the context of refugee law. For Centuries, displacements of individuals have always been motivated by various reasons: social, cultural but also legal changes needed to be implemented to adapt to new displacements of people. For example, the ‘migration crisis’ of 2015 has challenged the EU Member States and European actors to adjust and implement new instruments. For years, the visibility of women in migrations has been becoming increasingly evident, deconstructing some of the established social and cultural paradigms based on the roots of our societies. Solutions implemented by the EU Member States do not have to undermine the values of the European Union and drive its integration, such as solidarity, hospitality, and responsibility. Therefore inclusiveness and change have to be included in legal instruments for better reception of current and future displacements of people.

“Do not wait for someone else to come and speak for you. It is you who can change the world "- Malala Yousafzai

List of abbreviations

APD: Asylum Procedures Directive

AREF: African Refugee Foundation

CEAS: Common European Asylum System

CEDAW: Convention on the Elimination of All Forms of Discrimination against Women

DP: Direct Provision

ECHR: European Convention on Human Rights

ECJ: European Court of Justice

EU: European Union

FGM: Female Genital Mutilations

ICCPR: International Covenant on Civil and Political Rights

INLA: Irish National Liberation Army

IPO: International Protection Office

LGBTI+: Lesbians, Gays, Bisexuals, Transgenders, Intersexes +

MASI: Movement of Asylum Seekers in Ireland

MPSG: Membership to a Particular Social Group

NGO: Non-Governmental Organisation

ORAC: Office of the Refugee Applications Commissioner

PTSD: Post-Traumatic Stress Disorder

QD: Qualification Directive

RAT: Refugee Appeals Tribunal

RCD: Reception Conditions Directive

TFEU: Treaty on the Functioning of the European Union

UKBA: UK Border Agencies

UNHCR: United Nations High Commissioner for Refugees

Introduction

In the 21st Century, gender is no longer a determining factor in migration. However, reality is still more complex for women. This dissertation will analyse substantive and procedural obstacles that women asylum seekers encountered especially within the Common European Asylum System¹ for a better understanding of gender issues in the context of Refugee law.

Research Framework

Research question

This dissertation will be structured around the following research question: Could it be said that the European asylum framework is a male-centric system, influenced by gender based stereotypes, which does not take sufficient account of the understanding of situations and claims of women, from a substantive and procedural point of view?

First of all, the first chapter will set the general theoretical framework of concepts of Refugee law to ensure a better understanding of the consideration of gender claims and criticism of the different concepts of Refugee law. The second chapter will demonstrate how the European asylum framework perpetuates gender stereotypes with the analysis of key points such as credibility assessment and the structure of reception centres in the EU. Finally, the third chapter will propose improvements and further reflection.

Method of research

In order to provide a research which is comprehensive as possible, some hypothesises will oriented the dissertation (What role does gender play in migration? Why and how gender stereotypes could impact women in the asylum procedure?). The methods of research will be qualitative (primary sources, such as cases law and secondary sources such as articles and academic works) and quantitative (official studies, Eurostat…)². From the definition of refugee to the credibility of claims and the challenges that women faced in the structure of reception, the combination of both substantive and procedural approaches will show from the roots the obstacles encountered by women asylum seekers in the European asylum system and will point out areas which need to be improved.

Chapter 1 – Theoretical outlook

In this chapter, substantive elements will be highlighted to demonstrate the male-centric approach of Refugee law background, such as the visibility displacements of women and the notion of persecution (Section 1), the “universality” of the Convention with the definitions of refugee and Membership to a particular social group will be analyse (Section 2).

Section 1- General background

1.1.1) The feminisation of displacement: from invisible to visible

Despite the revolutionary advances of the 21st century about the visibility of issues affecting women (feminicides, domestic violence…) due to the accessibility of new platforms of communication such as social networks, many gender-related issues remain invisible. However, the problem of the lack of visibility of women in public sphere is not new. As example in Western literature, the Odyssey of Omer relates the story of the valiant Odysseus was recounted while his wife Penelope waited for him at home. It could be noticed in the famous poem that the word of Penelope does not matter and her son Telemachus kindly invites her to 'return to her flats and take up her web and distaff again, for to talk is the business of men³ '. For a very long time, the voices of women were rejected from the public arena. Step by step, women have fought to be heard in various spheres of society⁴. Therefore, it is relevant to mention the dichotomy of public and private spheres to understand the problems that women may face in the field of refugee law.

At first, the Convention of 1951 neglected gender as the ground to grant the status of refugee⁵ . As a result, claims of women were not adequately addressed under the Convention, which was the primary instrument governing refugee protection in international law. The generalisation of experiences of women is often made without having a whole picture of the different geographical and cultural situation of female applicants⁶.

Secondly, the lack of attention to the problem of displaced women has been the absence of their voice for a long time. As result women refugees have not been sufficiently represented. Moreover, refugee concerns have tended to be separated from Human Rights in legal debates. The theoretical and practical gap between the protection of refugees on the one hand, and the assertion and affirmation of Human rights, on the other hand, is reflected in the failure to provide an integrated strategy on the rights of women refugees. This failure has exacerbated problems in the protection of displaced women.

Nowadays, men still dominate the statistics of displacement in the EU, but the number of women who make their journey alone is increasing. Therefore, it is easier to find general data about male asylum seeker applicants⁷. Also, according to Kelly, “the majority of the world’s refugees are female because they are the first victims of political, social...repression⁸ ”. The relevance to mention the dominance of the male displacements results also in the number of cases encountered.

1.1.2) Persecution and women

1.1.2.1) Definition of persecution

Hathaway defines persecution as “sustained or systemic violation of basic Human Rights which demonstrates a failure of the protection of the state⁹ ”. Persecution can also come from non-state entities. Violence against women has often been analysed only in the private sphere. In the 1980s and 1990s number of applications of asylum from women increased, based on their fear of non-state agents. The dichotomy between public and private plays a role in the understanding gender-based persecution¹⁰. One of the reasons why persecution against women was ignored is that the key criteria for being a refugee came from male-dominated public sphere activities. Situations of forced marriage and human trafficking for sexual exploitation are understood as sexual violence and domestic violence. In the 90s, female circumcision has been considered as a cultural practice and female battery as part of the domestic sphere by Courts. For instance, Lewis explained how female circumcision structures these societies and traditions¹¹. At this time some jurisdictions of Member States considered FGM as traditional practices. It was the case in France with the jurisprudence Mlle Diop ¹² .

1.1.2.2) The QD and definition of persecution

The Qualification Directive¹³ is a legal instrument included in the CEAS which determines criteria for the eligibility of the international protection¹⁴. The QD sets up a system of protection that meets international standards. Through Article 9 of the QD, the Directive stands as the first international instrument to take a fundamental Human rights narrative¹⁵. Indeed, it recognised in Article 9(1) that persecution should be an act sufficiently serious in its nature or repetition which constitutes a serious violation of fundamental Human rights,) including Human rights violations¹⁶.

Therefore, the QD has expanded the definition of Hathaway by taking a broader view that takes into consideration various forms of harm that also constitute a serious violation of a fundamental human right¹⁷. To sum up, “Persecution is serious harm which constitutes to a sustained or systemic violation of basic Human rights demonstrative of a failure of state protection¹⁸ ”

1.1.2.3) Human Rights, Gender and Refugee Law

The difficulty of addressing claims for women refugees is largely related to the fact that there is no definition of gender-based persecution in international law¹⁹. The UNCHR has broadly defined such violence as a kind of harm, which covers different varieties of harm²⁰. Additionally the understanding of the experiences of women in their country of origin is particularly important to take into consideration the nature of the danger that drives them to seek asylum in another country. Kneebone mentions the positive influence of Human Rights legal instruments when handling gender-based persecution in the context of Refugee law²¹. For example, Article 26 of the ICCPR also provides for equality before the law and equal protection of the law. Also, in Article 12, the CEDAW says that states must take all possible measures to fight discrimination against women²². Indeed, the CEDAW Convention goes further than any other Human Rights instrument in detailing the obligations of States and the measures they must take to achieve gender equality in practice²³. Substantive and formal equality, as well as de facto and de jure discrimination, are central concepts in the equality framework of the Convention²⁴.

1.1.3) Definition of gender-based persecution

The original text of the 1951 Geneva Convention did not mention sex or gender, and has therefore historically been "interpreted within a framework of male experiences”²⁵. It could be explained by the fact that experiences of gender inequality have been ignored for years in several countries. The UNCHR Guidelines of 2002 was intended to respond to criticisms that made in the 80s about that 'neutrality of the Convention excluded women²⁶. Initially, "Gender" is seen as the social, cultural, and political extension of biological sex²⁷. It refers to the construction of male and female social roles, attributed to the two biological sexes²⁸. Nowadays, the possibility of considering oneself neither male nor female is increasingly claimed. While gender-based persecution has no legal meaning according to the UNHCR, it constitutes a category, which however refers to different realities with a heterogeneous legal treatment. This category refers non-exhaustively to “acts of sexual violence, domestic violence, forced family planning, genital mutilations, and discrimination against homosexuals…²⁹ ".On top of that, the heteronormativity that structures society and consequently, a legal order, cannot initially take into account the persecutions of individuals who do not correspond to the dominant norm. As mentioned above, gender is a critical factor in the migration process and may explain why women are persecuted³⁰.

Section 2- C onvention grounds

In this second section, a critical approach will be me about the universalism of the Convention (1), the definition of 'Refugee ’ (2) and ‘Membership to a particular social group’ as the ground of persecution for female applicants (3) to demonstrate how persecution against women could be a sensitive area of interpretation.

1.2.1) Universalism of the 1951 Geneva Convention

First of all it is relevant to focus on the comprehensive system of protection granted by the 1951 Convention as supplemented by the 1967 Protocol relating to the Status of Refugees. Firstly, the Convention was built on a Eurocentric vision. Indeed, the Convention was made following the political persecutions of the inter-war period, in line with the recommendations of the United Nations Conference of Plenipotentiaries on the Status of Refugees under Resolution 429(V)³¹.

1.2.1.1) Criticism of the definition of “refugee”

The 1951 International Refugee Convention defines a "refugee" as a person outside his or her country who fears persecution “because of race, nationality, membership of a particular social group, or political opinion³² ". Nevertheless women who escape gender-based violence face several obstacles to meet the criteria of the definition in practice. Indeed, even if the definition of 'refugee' is considered gender-neutral³³, some difficulties in practice can be noticed.

Therefore, three critics could be set about the inclusivity of the definition of ‘refugee’:

Firstly, there is a failure to accommodate ethnic and gender-based persecution to national, regional, and international security. According to Greabatch, the Convention neglects gender as a critical consideration in refugee status determination³⁴. As feminist approach Johnson argues that the Universalist approach of the Convention does not distinguish between men and women³⁵ and the definition of refugee refers to "he" and not "she" as well as the same applies to Article 33 on non-refoulement ³⁶. However, the problem goes far beyond a semantic point of view. Instead, a work of interpretation has to be done relevantly by decision-makers. The challenge of recognition of specific persecution against women could result in a lack of recognition of experiences of women in the public sphere.

Secondly, the definition of refugee presents a certain inflexibility regarding the changing nature of displacement³⁷. Fitzpatrick had outlined the absence of an agreed framework for refugee status determination and crucial gaps about the rights of asylum seekers intercepted in the sea³⁸. Under the current regime, the most widely recognised form of asylum is determined by the 1951 Convention and the 1967 Protocol as interpreted by national courts³⁹.

Thirdly, Schaknove suggests that the narrow conception of the refugee will contribute to the denial of international protection to countless people in circumstances where assistance is blameless⁴⁰. For example, the refugee definition does not include economic or climatic migrants⁴¹. The definition is only limited to five specific grounds: race, religion, nationality, political opinion, and membership of a particular social group. Women face rejection of their claims because their experiences of persecution are often unrecognised. For some government official members, the sexual nature of aggression is seen as lead by personal motivation, a sexual action more than an act of violence⁴². Reinterpretation of the Convention is needed to include victims of oppression and discrimination against their gender.

1.2.2) Women and "membership of a particular social group”

1.2.2.1) Definition of a “particular social group”

First of all, according to the UNHCR definition, a particular social group is composed of "people who share a common characteristic other than the risk of persecution, or who are perceived as a group by society⁴³ ". This characteristic is often unalterable and fundamental. Secondly, the group does not need to be a voluntary relationship, homogeneous, or have a certain level of internal cohesion. Regarding the size of the group, it is more about 'power no number'⁴⁴ . More precisely, Gleeson C.J. mentioned in Khawar that "the size of the group is not necessarily an obstacle ...It is power, not numbers that create the conditions in which persecution can occur.⁴⁵ '

However, some groups of women in specific countries are identified as particular social groups (e.g., Somali women, Iraqi women⁴⁶ …). For example, in HM⁴⁷, it is stated that women in Somalia form a particular social group "not only because they are women, but also because they are subject to widespread discrimination". By contrast, in CRLD v Refugee Appeal Tribunal⁴⁸ , the High Court rejected the contention of the applicant because she had no relevant evidence and had no nexus on Convention grounds. Women in Bolivia were not considered by the Court as Members of a particular social group. According to J Eadgar “ the applicant claims she was harassed by this man she stated she was not physically harmed or subjected to violence[…] the applicant did not provide sufficient evidence to substantiate her claim of persecution or that she and her son would be at risk of physical harm if they returned to Bolivia⁴⁹ ” .

Therefore, it would be necessary to determine the criteria that allow certain groups of women to be considered as belonging to a particular social group, especially after analysing the social, cultural, and political context of a specific country. Indeed, a relevant analysis of these conditions is predominant to justify why some women could be qualified members of particular social groups and not the others.

1.2.2.2) UNHCR and the codification of social group

The UNCHR Guidelines of 2002 refer to “innate or immutable characteristics to define a particular social group ⁵⁰ ". These characteristics may include gender, age, marital status, religion, family, employment history, disability, sexual history, ethnic, tribal, or clan affiliation. There are situations where women are persecuted solely because of their family or kinship relationships. For example, a woman may be persecuted to punish members of her family or community.

Furthermore, the QD provides a clear and binding definition of persecution in its Article 9(1), if there is a repetition or nature of the act which constitutes a violation of Human rights under Article 15(2) ECHR). When it comes to defining a particular social group, issues related to the gender of the applicant should be taken into account (gender identity, sexual orientation…).

1.2.2.4) « Gender » and « particular social group »

In practice, the asylum was largely built on the male-oriented premise of violence perpetrated by state actors in the public sphere. "Private violence" inflicted by non-state actors was more difficult to interpret using existing precedents⁵¹. In Matter of Kasindja the Board of Immigration Appeals allowed for the first time the use of a gender-based social group by applying their precedent from the 1985 case⁵². In Kasindja, a particular social group was defined as "young women who are members of the Tchamba-Kunsuntu Tribe of northern Togo who have not been subjected to female genital mutilation, as practiced by that tribe, and who oppose the practice⁵³ ”.

Jurisprudence on Gender and MPSG

Political ground has been recognised in some circumstances for women who seek asylum. However, many claims based on these grounds were refused for lack of credibility. The ground of membership to a particular social group is more easily granted to female applicants (even if her membership was not asked) and creates "the highest threshold for gender-based claims⁵⁴ ”.

The ground of membership of a particular social group has evolved and influenced decisions, especially in the jurisprudence of Canada (1), Australia (2) and the United Kingdom (3).

Canada

First of all Ward⁵⁵ made it possible to determine the criteria for defining membership of a particular social group.

Indeed, this case provided a clear signification of “particular social group⁵⁶ ". In 1993, Patrick Ward was a former member of the Irish National Liberation Army (INLA) who fears that INLA would persecute him for assisting in to escape of an INLA hostage. He claimed refugee status on grounds of political opinion and membership to a particular social group, INLA. He could not have protection if he returns to Ireland and in the UK. The Court said the most appropriate meaning of social group would be to "take into account the general underlying themes of the defence of Human Rights and anti-discrimination that form the basis for the international refugee protection initiative⁵⁷ ”. The test of the Court resulted in the finding of 3 different categories identified notably in Cheung⁵⁸ and Matter of Acosta⁵⁹ . First, groups are defined by an innate or unchangeable characteristic, second groups whose’ members voluntary associate for reason so fundamental to their human dignity and groups associated by a former voluntary status, and third, unalterable due to historical permanence.

Cheung V Canada provided a precedent in this case. Cheung was a Chinese woman who had more than one child forced to sterilization and her status was provided on the ground of membership to particular social group "on fundamental purpose to her dignity⁶⁰ ”. The question of Chinese women as members of a particular social group was issued. Chinese women were forced to have abortions to follow the one-child policy: these women feared persecution because they share similar social status and characteristics. In addition, Matter of Acosta affirmed that common and unchangeable characteristics could include gender, race, kinship, or past experiences such as military service or land ownership ⁶¹ .

Secondly, the Court stated that the INLA was not considered a particular social group within the meaning of the Convention. The members of the INLA did not have the innate characteristics of the category (1), were not associated with a voluntary status (2) and the INLA sought political change through violence and therefore did not respect human dignity (3)^{62 63}.

Australia

Khawar is a Pakistani woman who feared violence from her husband. On top of that she did not received support from the local police⁶⁴. The First instance Tribunal rejected her application on the ground of membership to a particular social group. According to the Tribunal her claim was based on personal and family matters⁶⁵.The High Court, therefore, considered the issue that in a country where there is discrimination against women (such as the police refusing to protect a woman) an applicant woman can be granted refugee status. Goodwin-Gill recalls that the terminology "particular social group" was adopted at the instigation of the Swedish delegate in 1951, who mentioned that certain examples already existed, such as the persecution of intellectuals in communist China or Russia⁶⁶.

Also, in Re Mayers, Trinidadian authorities had qualified the pleas of the applicant for help as "domestic dispute ⁶⁷ ". An appeal was brought on the ground those Trinidadian women victims of domestic violence were a particular social group. However, the Federal Court of Appeal, in this case, held that there was no error of law, as women are half of humanity and therefore not considered as a particular social group⁶⁸. Referring to Sanchez-Trujilo ⁶⁹ , the interpretation of "particular social group" was held to be narrow by stating that the persons in the group had to be closely related and pursue a common goal. According to this interpretation, homogeneity had to be important for the consideration of a particular social group. In Fatin⁷⁰ , a woman may be persecuted not because she is a woman but because she belongs to a subgroup of women. However, this approach may be narrow in practice. It seems complex to label some groups of women as 'special' and others as not, depending on a specific area. Additionally, the Australian judge referred to Islam V. Secretary of State for home of Department ⁷¹. Pakistani women were considered as a particular social group because they were discriminated (Human rights perspective). The judge stated that the persecution suffered by Ms. Khawar may be based on the lack of effective protection of the state and that she may belong to a particular social group in Pakistan because of her gender. It was found that the "persecution" requirement of the Refugee Convention was satisfied when the harm is committed by a non-state actor and in this case, women had no access to protection in their country of origin⁷².

United Kingdom

Experiences of women refugees have been neglected for a long time in the UK. However Shah and Islam changed of direction⁷³. The ruling must be viewed in the context of a transnational legal reform campaign driven by the political necessity of bringing the voices of those who suffer in the silence of domestic violence. The case involved the appeals of two Pakistani women who had been the victims of violence of their husbands and seeking asylum in the UK. The husbands accused them of adultery under the Sharia law. The ground of membership to a particular social group was rejected. Later, the appeals before the House of Lords recognised the two Pakistani women as member of PSG⁷⁴ because they share common and immutable characteristics.

Gender may be a factor in recognising membership of a particular social group or an identifying characteristic of such a group. The fact that a particular social group is composed of a large number of women in a specific country seems irrelevant. Race, religion, nationality, and political opinion are also important criteria. For example, a woman who is opposed to an idea of her government and seeks asylum because her life is in danger in her country could introduce a claim on the ground of political opinion.

Concluding Remarks

As this substantive approach raised, the framework of Refugee law is at first male-centric, based on societal constructions. However, despite significant evolutions, some challenges remain in the interpretation of grounds of persecution in practice. Indeed, the fact that rights of Women are to be established and that there is a growing demands for them indicates that protection of women within the Human Rights system is not sufficient. Indeed, many asylum applications are analysed based on male experiences. Edward gives the example of the experience of torture. Indeed, gender-based violence such as domestic violence must reach a certain threshold of severity to be also considered as torture⁷⁵.Therefore there is an extra burden on women to demonstrate that they have been subjected to acts that can be considered as torture. The discrimination between women and men generates the wrong assumption on the fact that harms doing in private resulted from personal motivation.

To recognise gender-based persecution, "membership of a particular social group" may be the easiest solution, without sometimes taking into account a variety of profiles and stories of women. For instance, women and girls who are opposed to governmental practices may be considered persecuted on the grounds of real or perceived political opinion.

Chapter 2- EU Asylum framework and gender

After a substantive and critical analysis of general background and concepts this seconder chapter will highlight gender stereotypes found in asylum procedures, in particular during the assessment of credibility (1), and difficulties encountered by female applicants because of their gender in the reception centres within the Member States (2).

Section 1- Procedural framework and gender stereotypes

This first section will put the emphasis on obstacles encountered by female applicants in credibility assessment (2.1.1) and the role of framework of interviews in the accentuation of gender stereotypes (2.1.2).

2.1.1) Credibility Assessment and women asylum seekers

2.1.1.1) Legal framework

The assessment of credibility is described as «the most important step" in determining refugee status⁷⁶. Moreover, credibility is the marker of the singularity of asylum litigation "which is not litigation of proof, but litigation of accreditation⁷⁷ ". The main legal instrument for the asylum procedures among the EU and part of the CEAS framework is the ‘Asylum Procedures Directive’ (completed by the QD).

Credibility and QD

Credibility is at the heart of asylum litigation and was firstly mentioned in 1979 in the UNHCR Practical Guide, supplemented by references to the "objective and subjective elements" of the narrative, to "coherence" or the "benefit of the doubt"⁷⁸. Later, it appears in Article 4(5)(e) of the QD (recast) refers to the general credibility of an applicant, but in the context of a specific rule governing the non-validation of certain aspects of the statement of the applicant story (sometimes referred "history" of the applicant)⁷⁹. This process takes place in two stages, detailed from Articles 4.2 to 4.9. Furthermore, point 4.3 highlights the fact that the application must be individual and take into account all elements of the personal situation of the applicant such as gender, ethnicity, and age⁸⁰. All relevant material available to the applicant has been presented and a satisfactory explanation has been given for the absence of any other relevant material.

Credibility and Asylum Procedures Directive

The Asylum Procedures Directive⁸¹ ensures in its Article 9 the right to stay in the host country (or country of destination) pending the examination of the application and also ensures a personal interview⁸² with the applicant. This interview has to take place without the presence of the families unless the state provides otherwise⁸³, with a person of the same sex (15 1(a)) unless the responsible authority deems otherwise on good grounds (b) and to ensure appropriate communication (c). In terms of the content of the interview⁸⁴, the responsible authority determines the questions to be asked to present the elements necessary to justify the granting of the application ⁸⁵ .

Despite legal instruments ensuring the right to be heard and to assess credibility with 'satisfactory explanation', women victims of gender-based violence often faced material and emotional difficulties to grant protection. In addition, there is also the problem of physical and psychological abuse and violence during their journey, which is sometimes not taken into account in the assessment of credibility.

2.1.2) Analysis of Gender stereotypes in procedure of asylum

2.1.2.1) Credibility Assessment

It will be demonstrated how the three keys of the credibility assessment could be considered as an obstacle for female applicants to reach standard of proof. The high standard of proof, the corroborative evidence and the impact on trauma on credibility will be analysed. Finally, the question of benefit of doubt will be highlighted.

The High Standard of proof

The standard of proof in the examination of all asylum claims is that of "reasonable degree of likelihood⁸⁶ ” and “real risk⁸⁷ ”. Lower standards of proof could be adopted to compensate evidential difficulties associated with past persecution. In practice, the high standard of proof is implicitly applied by decision-makers despite these guidelines could be major obstacles to receive protection⁸⁸.

Obstacles for female applicants:

Asylum Aid published a research that focused specifically on initial decision-making in claims of female applicants and concluded that "assessment of credibility is the core of the rejection of the decision⁸⁹ ". The other aspects of the decision-making process, such as the identification of the Convention grounds and the assessment of state protection issues, were marginalised⁹⁰ '. It has also been shown that claims of female applicants are more likely to be rejected on appeal than the claims introduced by men due to negative credibility assessments in the initial decision making⁹¹. In the majority of the decisions of the Tribunal where the appeal has been allowed, the focus was mainly on future risk rather than past persecution⁹². Some judges highlighted the fact that "it is possible to believe that a witness is not telling the truth about the story⁹³ and to exaggerate to make the case "better⁹⁴ ”’.

The availability of corroborative evidence

Because of the high standard of proof, the availability of corroborative evidence is very important⁹⁵. Several factors make it harder for women to access to consistent and relevant evidence.

Obstacles for female applicants:

A female applicant might have no access to identity documents or other essential documents as evidence to support her application. In several cases, the country of origin may not give full rights of citizenship to women and male relatives may exercise control over their documentation. Therefore, involvement in political activities is often more difficult to prove for women. Statement by representatives of a political party or group may be difficult for a woman to produce since her activities may have been from a different nature than her male counterparts⁹⁶. In many cultures, women may be credited with the political opinions of their family or male relatives⁹⁷. The literacy rate for women in refugee-producing countries is quite low and sexual abuse is also difficult to prove medically if it does not leave permanent physical damages.

[...]

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¹ The CEAS is composed of the EU Eurodac Regulation, Reception Conditions Directive, the Qualification Directive, the Dublin Regulation and the Asylum Procedures Directive.

² Michel Beaud, L’art de la thèse (La Découverte, Coll. Repères 2006).

³ Mary Beard, Les femmes et le pouvoir : Un Manifeste (Perrin 2018), 1-5.

⁴ Hannah Arendt,’ Chapitre II : le domaine public et le domaine privé’ in Calmann-lévy (ed), Condition de l’homme moderne (1983) 59-121.

⁵ Hassan Al Imran, Refugee Law, and Gender-Based Persecution: A Comparative Analysis: A critical study of the 1951 Refugee Convention and development of Gender-Based Persecution (Lambert Academic Publishing 2019) 1.

⁶ UNHCR, 'Guidelines on international protection: Gender-Related Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees' (UNHCR, 7 May 2002) <https://www.unhcr.org/3d58ddef4.pdf> accessed 15 July 2021.

⁷ See Appendix 1 for an example of number of male-asylum seekers in the EU (Eurostat report of 2020).

⁸ N Kelly, ‘Gender-related Persecution: Assessing the Asylum Claims of Women’ (1993) Cornell International Law Journal 625.

⁹ James C. Hathaway, The Law of Refugee (Butterworths 1991) 104-105.

¹⁰ Frances Olsen, 'Constitutional Law: Feminist Critiques of the Public/Private Distinction’(1993) 10(2) Constitutional Commentary 319-328.

¹¹ Hope Lewis, 'Between Irua and Female Genital Mutilation : Feminist Human Rights Discourse and the Cultural divide' (1995) 8(1) Harvard Human Rights Journal 1-56.

¹² Mlle Diop, 164078 1991 CRR.

¹³ Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or persons eligible for subsidiary protection, and the content of the protection granted(recast) 2011 OJ 2 337/9-26.

¹⁴ Jane McAdam, 'The Qualification Directive: An Overview' in Karin Zwaan (eds), The Qualification Directive: Central Themes, Problem Issues, and Implementation in the Selected Member States (Nijmegen: Wolf Legal Publishers 2007) 8-30, 8.

¹⁵ Hugo Storey,' Persecution: Towards a Working Definition' in V.Chetail and C. Bauloz (eds), Research Handbook on International Law and Migration (Edward Elgar 2014)478.

¹⁶ Article 9(1) Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted 2004 OJ 2 304/12–23.

¹⁷ James C. Hathaway (n 9) 104-105.

¹⁸ James C. Hathaway (n 9) 104-5.

¹⁹ Mathilde Crépin, Persecution, international refugee law and refugees: a feminist approach (Law and Migration (Routledge 2021) 11-15.

²⁰ UNHCR Guidelines 2002 (n 6).

²¹ Susan Kneebone, ' ’Women Within the Refugee Construct: “Exclusionary Inclusion” in Policy and Practice-The Australian Experience’ ' (2005) 17(1) International Journal of Refugee Law 7-42.

²² Article 12 Convention on the Elimination of All Forms of Discrimination against Women, CEDAW (1979) and Optional Protocol to the Convention (1999).

²³ Solène Champain, L’instruction des demandes d’asile liées au genre en France (Université Paris Nanterre 2017-2018) 1-10.

²⁴ See (n 23).

²⁵ UNHCR Guidelines 2002 (n 6).

²⁶ Alexandra korsakoff, ' Les victimes de persécutions de genre, de « nouveaux » réfugiés ? Réflexion sur l’étendue de la mobilisation du motif du groupe social ' 2015 13 CRDF 78.

²⁷ Rilke Mahieu Christiane Timmerman Dirk Vanheule, 'La dimension de genre dans la politique belge et européenne d’asile et de migration' (Institut pour l'égalité des femmes et des hommes, 2010) <https://igvm-iefh.belgium.be/sites/default/files/downloads/Genre%2C%20asile%20et%20migration.pdf> accessed 15 July 2021.

²⁸ Stéphanie Hennette-Vauchez, Mathias Möschel et Diane Roman , Ce que le genre fait au Droit (Dalloz « À droit ouvert » 2013) 17.

²⁹ Council of Europe Treaty Series - No. 210 Explanatory Report to the Council of Europe Convention on preventing and combating violence against women and domestic violence Istanbul, 11.V.2011.

³⁰ Audrey Macklin , ‘Refugee Women and the Imperative of Categories’ (1995) 17 Human Rights Quarterly 213.

³¹ Mathilde Crépin (n 19) 18.

³² Convention relating to the Status of Refugees, Geneva 28 July 1951, entered into force 22 April 1951,Article 1.

³³ Patricia Brazil, ‘ Gender and migration in Irish law’ Peter Dunne and Lynsey Black, Law and Gender in Modern Ireland ( Hart 2019) 249 – 262.

³⁴ Jacqueline Greatbatch, 'The Gender Difference: Feminist Critiques of Refugee Discourse' (1989) 1(4) International Journal of Refugee Law 518–527.

³⁵ Anders B. Johnson, ‘The international protection of women refugees: A Summary of Principal Problems and Issues’ (1989) 1 (2) International Journal of Refugee Law 221.

³⁶ Article 33 of the 1951 Geneva Convention.

³⁷ Guy Goodwin-Gill , ‘Asylum-2001: A Convention and a Purpose’ (2001) 13(1/2) International Journal of Refugee Law 1.

³⁸ J.Fitzpatrick, ‘Is the 1951 Convention Relationg to the Status of Refugees obsolete?’ in Hailbronner K. et al.(eds) (1998) 4 Immigration control 205.

³⁹ Hassan Al Imran (n 5) 10.

⁴⁰ Andrew E., Shacknove, 'Who Is a Refugee?' (1985) 5(2) Ethics 274-284.

⁴¹ Hassan Al Imran (n 5)11.

⁴² Valerie Oosterveld, 'Legal and protection policy research series Women and Girls Fleeing Conflict: Gender and the Interpretation and Application of the 1951 Refugee Convention' (UNHCR, September 2012) <https://www.unhcr.org/504dd7649.pdf> accessed 15 July 2021.

⁴³ See UNHCR 2002 (n 6).

⁴⁴ Minister for Immigration and Multicultural Affairs v Khawar 2002 HCA 14, Australia: High Court.

⁴⁵ ibid.

⁴⁶ Valerie Oosterveld (n 42).

⁴⁷ HM and Others (Article 15(c)) Iraq v. Secretary of State for the Home Department, HM and Others 2010 331 IAC 1 (UKUT).

⁴⁸ CRLD v Refugee Appeal Tribunal, 2016 IEHC 274.

⁴⁹ ibid para 29.

⁵⁰ UNHCR Guidelines 2002 (n 6).

⁵¹ Jane Freedman, ‘Introduire le genre dans le débat sur l’asile politique’(Les cahiers du CEDREF, 2004), 12 , <DOI: https://doi.org/10.4000/cedref.541>Accessed 15 July 2021.

⁵² Re Kasinga Interim Dec [ 1996] 3278, US BIA, at 5.

⁵³ ibid 357.

⁵⁴ Debora Singer, 'Unsustainable: The quality of initial decision-making in women’s asylum claims ' (December 2010/January 2011 ) 1 (98) Asylum Aid, 1-4 <https://www.refworld.org/pdfid/4d34360421f2.pdf.> accessed 20 July 2021

⁵⁵ Canada (Attorney General) v. Ward 1993 2 S.C.R 698.

⁵⁶ Canada( Attorney General)v.Ward (n 56).

⁵⁷ Ronald Shacter, 'Commentaire d'Arret: Le Procureur General du Canada c Patrick Francis Ward' 1990 6(9) Journal of Law and Social Policy 256-277.

⁵⁸ Cheung v. Canada (Minister of Employment and Immigration) 1993 2 F.C. 314 (CA).

⁵⁹ Matter of Acosta, Interim Decision 2986, 1985 WL 5604 (B.I.A).

⁶⁰ See (n 59)

⁶¹ See (n 60) 19 I N 213.

⁶² Hassan Al Imran (n 5) 48.

⁶³ Ward (n 57) note 1,18.

⁶⁴ Minister for Immigration and Multicultural Affairs v Khawar 2002 HCA 14 (Australia: High Court).

⁶⁵ Khawar (64).

⁶⁶ Bastanipour V Immigration and Naturalization service 980 F2d (7th Circuit 1992) 1129 à 1132.

⁶⁷ Canada C Mayer 1992 A-544-92 (Canada : Federal Court) 729.L

⁶⁸ Mayer (n 67).

⁶⁹ Sanchez-Turijillo v. INS, 801 F.2d (9th Cir.1986)1571.

⁷⁰ Fatin v.INS, 12F.3d 1233 (3rd Circuit 1993) at 1241.

⁷¹ Islam v Secretary of State for the Home Department, R v Immigration Appeal Tribunal, ex parte Shah 1999 2 AC 629 (UKHL).

⁷² Guidelines on international protection: gender-related persecution within the context of article 1 of the 1951 Convention and its 1967 protocol relating to the status of refugees.

⁷³ Guy Goodwin-Gill, Cases and Comments: 'Judicial Reasoning and Social Group and the Effect of Islam and Shah', (199) 11(3) International Journal of Refugee Law 537.

⁷⁴ Hassan Al Imran (n 5) 52.

⁷⁵ Alice Edwards, Violence Against women under international Human Rights Law (Cambridge University Press 2010) 305.

⁷⁶ Debora Singer ‘Falling at each hurdle: Assessing the credibility of women’s asylum claims in Europe’ in Efrat Arbel, Catherine Dauvergne & Jenni Millbank, Gender in Refugee Law: From the margins to the centre (Routledge Research in Asylum, Migration, and Refugee Law) 2014, 99.

⁷⁷ ibid 101.

⁷⁸ UNHCR, 'Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Geneva Convention and the 1967 Protocol Relating to the Status of Refugees (2019) 13-28.

⁷⁹ EASO, 'Evidence and credibility assessment in the context of the Common European Asylum System' (European Asylum Support Office, 2018) <https://www.easo.europa.eu/sites/default/files/easo-evidence-and-credibility-assesment-ja_en.pdf> accessed 15 July 2021.

⁸⁰ Article 4(3 )(c) of the Directive 2011/95/EU.

⁸¹ Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast) 2013 OJ L 180, 60–95.

⁸² Article 14 of Directive 2013/32/EU.

⁸³ Article 15 of Directive 2013/32/EU.

⁸⁴ ibid Article 16.

⁸⁵ Article 4 of the Directive 2011/95/EU.

⁸⁶ Singer (n 76) 101.

⁸⁷ Robert Thomas, 'Assessing the credibility of asylum claims: EU and the UK approaches examined' (2006) European Journal of Migration and Law 8, 79-96.

⁸⁸ UNHCR, Beyond Proof: Credibility Assessment in the EU Asylum Systems, (Brussels UNHCR) 2013.

⁸⁹ Helen Muggeridge and Chen Maman, 'Unsustainable: the quality of initial decision-making in women’s asylum claims' (Asylum Aid, January 2011) <https://www.refworld.org/pdfid/4d3435d12.pdf> accessed 15 July 2021.

⁹⁰ European Asylum Support Office, Judicial analysis Evidence and credibility assessment in the context of the Common European Asylum System, 2018.

⁹¹ Helen Muggruridge and Chen Maman,' Unsustainable: The Quality of Initial Decision-making in Women's Asylum Claims', (Asylumaid 2001) 51 < www.asylumaid.org.Uk/data/files.unsustainableweb.pdf >Accessed 18 July 2021.

⁹² ibid 51.

⁹³ ibid 52.

⁹⁴ See (n 91) 54.

⁹⁵ See Debora Singer (n76) 103.

⁹⁶ Swedish Migration Board ‘Gender-based Persecution: Guidelines for Investigation and Evaluation of the Needs of Women for Protection, Sweden: Swedish Migration Board '(Migrationsverket 2001) < www. Refworld.org/pdfid/3f8c1a654.pdf >Accessed 15 July 2021.

⁹⁷ ibid.

• Université: Trinity College Dublin - The University of Dublin
• Note: A
• Auteur: Morgiane Noel (Auteur)
• Pages: 61
• N° de catalogue: V1289751
• ISBN (ebook): 9783346752291
• ISBN (Livre): 9783346752307
• Langue: anglais
• mots-clé: impact, gender, stereotypes, asylum, claims, substantive, procedural, analysis