I. INTRODUCTION
Since the mid-1980s, feminist scholars and advocates have steadfastly worked to ensure and improve the gender-sensitivity of refugee law, policy and practice. As a result, many advances and successes have been achieved. A case in point is the adoption by the Office for the United Nations High Commissioner for Refugees (UNHCR) and by many States of gender guidelines and the development of gender training to improve asylum decision-making and procedures so that women seeking asylum are appropriately recognised as refugees.Footnote 1 A refugee is defined in the United Nations Convention Relating to the Status of Refugees as a person who ‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country’.Footnote 2
Many pioneering doctrinal developments in international refugee law have been achieved in appeals concerning the inclusion of women as members of ‘Particular Social Groups’.Footnote 3 However, feminist scholars enquiring into the place of gender in refugee law have argued that, despite these early successes, the protection of refugee women has stalled and once again has been relegated to the margins of refugee law.Footnote 4 This article responds in two ways. First, the article seeks to explore this claim in further depth through an evaluation of an element of the Refugee Convention's definition of a refugee that is of particular relevance to women refugees, namely the fear of being persecuted for reason of membership of a ‘Particular Social Group’ as interpreted in the European Union (EU). Secondly, the article draws on a human rights-based approach to interpretation and identifies examples of good practice as a basis for further reform.
Although feminist scholars have argued extensively that women who are at risk of gender-based violenceFootnote 5 in their countries of origin have a well-founded fear of being persecuted for reasons of political opinion or religion,Footnote 6 existing research demonstrates that asylum decision-makers tend to rely excessively on the Refugee Convention ground of ‘Particular Social Group’ when making determinations.Footnote 7 As the interpretation of ‘Particular Social Group’ continues to present a challenge to the protection of women at risk of gender-based violence,Footnote 8 the article seeks to address this trend.
The interpretation of ‘Particular Social Group’ in the case of women seeking asylum is a topic that has been the subject of extensive debate within both academic and policy fields for a long time. It is an essential element of the Refugee Convention definition because failure to demonstrate a nexus to one of the five Convention grounds means persons are refused refugee status even though there might be a real risk of serious harm.Footnote 9 However, successes in developing inclusive jurisprudence and practice resulting in more effective refugee protection are often closely followed by regressive practices and jurisprudence.
Early on, judgments by higher courts in various jurisdictions in the Global North established that women could constitute a ‘Particular Social Group’ either because they shared the innate characteristic of sexFootnote 10 or because they shared a certain characteristic that set them apart from the wider society.Footnote 11 The two methods of interpretation became known as the protected characteristics approach and the social perception approach, respectively.Footnote 12 The UNHCR expressed the view that both approaches ought to be reconciled by incorporating them into a single standard such that ‘a particular social group is a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one's human rights.’Footnote 13
However, although early jurisprudence justified a straightforward and inclusive approach to interpretation based on a single criterion and the UNHCR clearly advocated for the protected characteristics and the social perception approaches to be used in the alternative, more recent practice indicates a departure from this earlier jurisprudence and a shift to a cumulative method of interpretation requiring that such a group must share a protected characteristic and, in addition to that requirement, be perceived to be a distinct group by society.Footnote 14 The concept of ‘Particular Social Group’ is thus highly contested and constantly relitigated. Moreover, and as will be discussed below, inclusive legislative and jurisprudential developments in one area of refugee law doctrine, such as that concerning refugees at risk due to their sexual orientation, may have unforeseen effects in other areas, such as refugee women fearing gender-based violence whose claims are not related to their sexual orientation.Footnote 15 This article argues that this has contributed to the deterioration of refugee protection standards for women who are seeking asylum on the basis of gender-based violence.
The EU legal framework provides a helpful context in which to frame an exploration of this trend because the Qualification Directive is the only regional legal instrument that attempts to define the term ‘Particular Social Group’.Footnote 16 The Qualification Directive is an EU legislative instrument designed to guide EU Member States’ national authorities in the application of the Refugee Convention on the basis of common concepts and criteria, first adopted in 2004 and later recast in 2011. Furthermore, the field of refugee law in the EU is crowded by administrative and judicial decision-makers at both national and supranational levels. The transposition and interpretation of the Qualification Directive by individual Member States, the recasting process and concomitant efforts by the European Asylum Support Agency (EASO) to achieve common standards within the Common European Asylum System (CEAS) illustrate the competing views on the question of whether women who have a well-founded fear of gender-based violence may constitute a ‘Particular Social Group’.
Significantly, the introduction and gradual extension of the jurisdiction of the Court of Justice of the European Union (CJEU) into asylum mattersFootnote 17 has added another, now binding, view concerning the interpretation of ‘Particular Social Group’. The recent CJEU judgment in X, Y and Z v Minister voor Immigratie, Integratie en Asiel has revived the debate as to whether the protected characteristics and the social perception approaches to the interpretation of ‘Particular Social Group’ are cumulative or alternative. These questions are likely to impact substantially on women fleeing gender-based violence due to the reliance on this ground of persecution by both asylum decision-makers and legal representatives. Furthermore, in the light of continuing efforts by the EU to achieve greater harmonisation by reducing the discretion of Member States regarding the interpretation of the definition of a refugee and enlarging EASO's mandate by transforming it into a fully-fledged EU Agency for Asylum, this issue requires pressing attention.Footnote 18
This article examines whether the protection of refugee women has been relegated to the margins of refugee law by first enquiring into the use of the terms sex and gender in international refugee law and in EU refugee law. The following section examines the law on ‘Particular Social Group’ and its interpretation by the EU and by individual EU Member States.Footnote 19 It is argued that whereas women at risk of gender-based violence remain at the centre of domestic refugee law in a significant number of EU Member States, the picture at EU level is more complex, with relevant protection standards being pushed to the margins by supranational institutions such as the CJEU and EASO. Drawing on examples of good practice in individual Member States, the final section sets out a human rights-based approach to the interpretation of ‘Particular Social Group’ which highlights the relevance of sex as a distinguishing characteristic, and as a reason for discrimination, violence and ultimately persecution in international refugee law. Finally, it explores the convergence between the protected characteristics and the social perception approaches if treated as cumulative requirements. It demonstrates how the concept of gender subordination, inherent in the notion of gender-based violence against women as defined in international human rights law, may satisfy the social perception approach.
II. VIOLENCE AGAINST WOMEN AND REFUGEE PROTECTION
The question of whether women at risk of gender-based violence are adequately protected under the Refugee Convention continues to be the subject of debate. This is because the proposition that violence against women is a political issue is not yet widely accepted, restrictive approaches are still taken to the interpretation of ‘Particular Social Group’ and neither sex nor gender are specifically mentioned in the definition of a refugee. However, the position of the UNHCR has always been that refugee women's experiences and needs may indeed be distinctive.Footnote 20
The lack of clarity in the use of terms such as sex and gender in international (refugee) law may have contributed to the complexities associated with the interpretation of ‘Particular Social Group’. The term ‘gender’ is often used interchangeably with sex and/or womenFootnote 21 and ‘gender-related asylum claims’ are generally equated with women's asylum claims, leading to the blurring of the distinct concepts of sex and gender.Footnote 22 This article relies on the Convention on Preventing and Combatting Violence against Women and Domestic Violence's (Istanbul Convention) definition of gender as ‘the socially constructed roles, behaviours, activities and attributes that a given society considers appropriate for women and men’Footnote 23 and UNHCR's definition of sex as ‘a biological determination’.Footnote 24 It also uses the term ‘gender-based violence’, defined as ‘violence that is directed against a woman because she is a woman or that affects women disproportionately’.Footnote 25 Although the overlap in the terms ‘sex and ‘gender’ is apparent in the notion of gender-based violence, the definition of gender-based violence embodies the acknowledgment in international law that women may be the subject of violence because of their sex.
The blurring of the terms sex and gender is also illustrated by the recasting process of the Qualification Directive that saw an unofficial shift in some of the language versions of the Directive away from the terms sex, men and women and towards gender. Although neither the European Commission, European Parliament or European Council proposed amendments to Article 9(2)(f), which gives examples of acts of persecution,Footnote 26 the provision in French was amended from ‘les actes dirigés contre des personnes en raison de leur sexe’ to ‘les actes dirigés contre des personnes en raison de leur genre’.Footnote 27 Similar changes occurred in the Portuguese and Romanian versions of the recast Directive. Some language versions, however, continue to describe as a form of persecution acts directed against a person on the basis of their sex.Footnote 28
Similarly, although the changes made in the recasting process relating to the definition of ‘Particular Social Group’ were merely intended to remove the reference to a lack of presumption regarding the existence of a ‘Particular Social Group’ in gender-related cases and to add the example of gender identity, a similar shift in terminology occurred.Footnote 29 Although the English version retained the existing wording of ‘gender related aspects’, the terminology ‘les aspects liés à l'égalité entre les hommes et les femmes’ was changed to ‘les aspects liés au genre’ in the French version.Footnote 30 This also occurred in the Bulgarian and Romanian versions of the recast Directive.
It is apparent that the recasting process sought to explicitly recognise that ‘gender related aspects’ could be understood as more than just inequality based on sex and also included gender identity.Footnote 31 It could be presumed then that the changes in terminology adopted in some of the language versions from sex, men and women to gender were merely intended to streamline the terminology, even though this was not undertaken consistently. This may partly be because ‘gender’ does not always translate well into other languages.Footnote 32 This is illustrated by the fact that some language versions retained the use of the term sex, and that some countries use the same word for sex and gender.Footnote 33 Moreover, despite the unofficial shift in the terminology of the recast Directive, French-speaking jurisdictions in the EU retained or amended the provisions of their national legislation when transposing the recast Qualification Directive to refer to sex. Belgium, for example, did not amend its domestic provision when transposing Article 9(2)(f) of the recast Qualification Directive into domestic law.Footnote 34 In France, the domestic provision transposing the recast Article 10(1)(d) was amended from ‘gender related aspects’ to ‘sex related aspects’.Footnote 35
Ultimately, this trend has no effect on the meaning of the provisions of the Directive as only a formal amendment approved by the relevant EU institutions could do so. Furthermore, understanding persecution as ‘acts of a gender-specific nature’Footnote 36 reflects the definition of gender-based violence found in international human rights instruments, namely violence directed against a woman because she is a woman or that affects women disproportionately.Footnote 37 This would imply that although references to sex, men and women have been unofficially removed from some language versions of the recast Qualification Directive, the term ‘gender’, as currently used in the Directive, still includes matters concerning equality between men and women and thus discrimination based on sex.
The amendments to the recast Qualification Directive suggest that it is becoming more widely accepted that gender may be relevant to a variety of asylum claims, as some refugees are at risk of being persecuted for reasons of their sexual orientation or gender identity. Indeed, it has been suggested that gender is in fact relevant in most, if not all, asylum claims across a continuum.Footnote 38 For example, there is increasing evidence of rape and sexual violence against men and boys, and the forced recruitment of men and boys in situations of armed conflict is highly gendered.
In that sense, reference in the recast Qualification Directive to a wider and more encompassing notion of gender is a positive development within refugee law but it also blurs the concepts of sex and gender and obscures the original intention of seeking to protect those who may be at risk of persecution because of their sex, such as women at risk of gender-based violence. This is problematic because sex discrimination and structural inequality remain relevant for understanding the reasons for human rights violations.Footnote 39 Hence, using the terms gender and sex interchangeably obscures the relevance of sex as a protected characteristic and as a reason for discrimination, violence and ultimately persecution in international refugee law. It also weakens this legal tool which is designed to address the persistent inequality and discrimination based on sex that leads some women to flee their countries of origin.Footnote 40 Although regard should be had to both sex and gender when interpreting the Refugee Convention definition, these concepts are substantively and analytically distinct. Although the concepts of sex and gender are complementary,Footnote 41 retaining sex as a distinct category in international refugee law is valuable.Footnote 42
III. DEFINING A ‘PARTICULAR SOCIAL GROUP’ IN LAW AND PRACTICE
A. Definition of ‘Particular Social Group’ in EU Law
Article 10(1)(d) of the recast Qualification Directive provides that:
Member States shall take the following elements into account when assessing the reasons for persecution: a group shall be considered to form a particular social group where in particular:
— members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and
— that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society.
… Gender related aspects, including gender identity, shall be given due consideration for the purposes of determining membership of a particular social group or identifying a characteristic of such a group.
When the European Commission first proposed the Directive, it clearly considered that, as a minimum, a certain ‘fundamental characteristic’ such as ‘gender’ could be sufficient to constitute a ‘Particular Social Group’.Footnote 43 Although the term ‘gender’ is used, it is clear from the Commission's analysis relating to women and gender-based violence that the Commission actually meant ‘sex’.Footnote 44 Furthermore, the Commission said that the term ‘Particular Social Group’ ‘was deliberately drafted in an open way and needs to be interpreted in a broad and inclusive manner’.Footnote 45 The Commission considered that women at risk of gender-based violence because of their ‘gender’ constituted a group of ‘individuals who are treated as “inferior” or as “second class” in the eyes of the law, which thereby condones persecution at the hands of private individuals or other non-state actors, or where the State uses the law in a discriminatory manner and refuses to invoke the law to protect that group’.Footnote 46
The two limbs of the provision reflect the historical interpretation of ‘Particular Social Group’ based on the protected characteristics and the social perception approaches.Footnote 47 A literal interpretation of Article 10(1)(d) indicates that the two limbs of the provision should be read as alternatives. Although the term ‘and’ is used to connect the two approaches, the use of ‘in particular’ suggests that these are illustrative of what might constitute a ‘Particular Social Group’ and they do not have to be read as cumulative requirements.
EU law also requires that the terms of Article 10(1)(d) be interpreted by placing the provision in its context, and in light of the objective of the Qualification Directive as a whole.Footnote 48 It is noteworthy, that Article 9(2)(f) of the Qualification Directive, which concerns acts of persecution, acknowledges that persecution can occur for reasons of sex. As has been seen, although the English version of the Qualification Directive notes that acts of persecution can take the form of ‘acts of a gender-specific … nature’, the French language version more explicitly implies causation, referring to ‘les actes dirigés contre des personnes en raison de leur genre’.Footnote 49 This view was adopted by the Belgian Council for Alien Law Litigation, which determines asylum appeals against administrative refusals, when it read Article 10(1)(d) in light of Article 9(2)(f). The Belgian Court relied on its national legislation transposing Article 9(2)(f) of the Qualification Directive as an indication that sex, being an innate and immutable characteristic, was a sufficient characteristic for there to be a ‘Particular Social Group’ without anything further.Footnote 50
The view that sex as a protected characteristic is sufficient to constitute a ‘Particular Social Group’ is supported by the UNHCR's first two Guidelines on International Protection concerned with gender-related claims for asylum and the definition of ‘Particular Social Group’. The UNHCR endorsed both the protected characteristics and the social perception approaches but indicated they should be treated as alternatives.Footnote 51 As will be discussed in the last section, where women are at risk of gender-based violence, their sex would satisfy the protected characteristics approach and gender dynamics would satisfy the social perception approach. Thus both Guidelines clearly endorse the view that sex can be within the ambit of ‘Particular Social Group’ with women being a clear example of a ‘social subset’ defined by innate characteristics.Footnote 52 The Gender Guidelines also suggest that it is those innate characteristics that identify them as a distinct group in societies where they are treated differently to men: ‘their characteristics also identify them as a group in society, subjecting them to different treatment and standards in some countries’.Footnote 53
Consequently, the UNHCR notes in its Guidelines on Particular Social Group that women have been recognised as a ‘Particular Social Group’ under either limb, namely the protected characteristics approach or the social perception approach. In addition, UNHCR notes there is often an overlap between the two approaches and women can constitute a ‘Particular Social Group’ under either. The judiciary in various jurisdictions, including in Belgium, Spain and the UK, have endorsed UNHCR's guidelines and recognised the proposition that women are a clear example of a ‘Particular Social Group’ defined by innate characteristics and who are often treated differently from men.Footnote 54
1. CJEU interpretation
However, the CJEU decision in the case of X, Y and Z has been read to mean that the two limbs of Article 10(1)(d) must be read cumulatively rather than as alternatives.Footnote 55 The central issue in the case concerned the role of laws criminalising same-sex relationships in the recognition of refugee status. The CJEU was asked for a preliminary ruling on the interpretation of ‘acts of persecution’Footnote 56 read in conjunction with Article 9(2)(c)Footnote 57 and the definition of ‘Particular Social Group’ in Article 10(1)(d) of the 2004 Qualification Directive.Footnote 58 The case concerned three asylum seekers who had claimed refugee status in the Netherlands on the basis of a well-founded fear of being persecuted for reason of their sexual orientation. The referring authority enquired whether persons ‘with a homosexual orientation’ constituted a ‘Particular Social Group’ under the Directive,Footnote 59 whether and to what extent they might be expected to conceal their sexual orientation or exercise restraintFootnote 60 and whether the criminalisation of homosexuality in their countries of origin constituted an act of persecution as defined in the Directive.Footnote 61
The CJEU determined that a ‘Particular Social Group’ may be constituted by those whose shared characteristic is their sexual orientationFootnote 62 and that the existence of criminal laws specifically targeting homosexuals supports the finding that ‘those persons form a separate group which is perceived by the surrounding society as being different’.Footnote 63 Accordingly, Article 10(1)(d) ‘must be interpreted as meaning that the existence of criminal laws, such as those at issue in each of the cases in the main proceedings, which specifically target homosexuals, supports the finding that those persons must be regarded as forming a particular social group’.Footnote 64 The judgment on this point has been described as being narrow, and based on the particular facts of the case.Footnote 65 Indeed, the principal matter of contention in the national proceedings and subject of the preliminary reference concerned the role that laws criminalising same-sex relationships might play when determining refugee status.Footnote 66 To some extent, the judgment does not seek to give any interpretative guidance beyond cases of this nature.
The CJEU did not, in fact, expressly determine whether Article 10(1)(d) could be read as an alternative. The CJEU noted that a ‘Particular Social Group’ exists where, inter alia, two conditions are met,Footnote 67 as the Qualification Directive provides that a ‘Particular Social Group’ exists where, in particular, the two criteria exist. As the CJEU found that the existence of laws criminalising same-sex relationships were sufficient to fulfil the social perception limb, it did not have to consider whether a ‘Particular Social Group’ could exist solely on the basis of the protected characteristics limb. Thus, the judgment does not necessarily require that the cumulative approach is adopted.Footnote 68
This view is substantiated by the Court observing that the existence of laws criminalising same-sex relationships ‘supports the finding that those persons must be regarded as forming a particular social group’.Footnote 69 The CJEU's cautious approach could be said to arise from its reluctance to test the boundaries of CEAS harmonisation.Footnote 70 Indeed, research published shortly before the judgment was issued concluded that there were significant disparities in Member States’ interpretation of Article 10(1)(d)Footnote 71 and its short judgment on the first question is entirely limited to the facts of the case.Footnote 72
2. EASO Guidance
EASO supports the EU in achieving the aim of harmonisation in the field of asylum. One of its more recent activities is the provision of guidance documents to EU Member States on the interpretation of refugee law concepts. However, EASO's Guidance to Member States on Membership of a Particular Social Group is built entirely on the assumption that the CJEU endorsed an exclusively cumulative interpretation of Article 10(1)(d).Footnote 73 This is inconsistent with its earlier analysis of the Directive, which accurately noted that the CJEU decision did not turn on that specific question.Footnote 74 Furthermore, the Guidance fails to apply its legal analysisFootnote 75 uniformly to ‘Particular Social Groups’ of women compared to other groups considered in the Guidance.Footnote 76 More specifically, the Guidance indicates that additional and stricter criteria are required for the determination of ‘Particular Social Groups’ on the basis of sex. For example, although the Guidance says that biological sex and gender are examples of innate characteristics, it adds that ‘in practice the criterion of “distinct identity” will, in most countries of origin, only be substantiated if it is combined with more characteristics relevant for the surrounding society to perceive a particular group as different’.Footnote 77
In contrast, decision-makers determining ‘Particular Social Groups’ based on the protected characteristics of sexual orientation or gender identity are directed to consider ‘whether the group has a distinct identity based on this common characteristic, i.e. is this group perceived as being different by the surrounding society because of their sexual orientation and/or gender identity?’.Footnote 78 No reasoning is provided for this difference of approach.
The Guidance also suggests that more anxious scrutiny is needed where women are at risk of gender-based violence. Where potential groups are defined by sexual orientation, gender identity, age, illness, disability or a common past experience of having been trafficked, decision-makers are guided to consider how the group's distinct identity may be demonstrated by the existence of criminal or discriminatory laws,Footnote 79 being ‘stigmatised’Footnote 80 or ‘alienated’,Footnote 81 subjected to a ‘culture of intolerance’Footnote 82 or discriminated against due to ‘customs, traditions or myths’ in any area of social life, ‘including access to education, employment or health, and more generally to the exercise of a wide range of civic, political, economic, social and cultural rights’.Footnote 83
On the other hand, decision-makers are unjustifiably directed to make further enquiries in the case of groups defined by sex. The existence of discriminatory laws or practice is no longer sufficient in itself to indicate that a ‘Particular Social Group’ comprised of women has a distinct identity. At most, ‘it forms an indication which needs to be further assessed in the context of the country of origin; how essential is the law for the perception of the surrounding society on different identity, how is it being applied and how does it affect women differently. Often other characteristics will be needed to establish the criterion of “distinct identity” such as a region of origin, ethnicity and/or social situation’.Footnote 84 Thus, not only does the Guidance adopt an overly restrictive reading of X, Y and Z, it also inexplicably further restricts the interpretation of Article 10(1)(d) in the cases of women fearing gender-based violence.
The Guidance propounded by EASO reflects a regression with significant implications for the protection of women at risk of gender-based violence, particularly as EASO Guidance aims to promote greater convergence within the EU. The recent transformation of EASO into a fully-fledged EU Agency for Asylum with increased powers on asylum in the EU further emphasises the importance of this finding.Footnote 85 Although the Guidance is said to reflect ‘commonly agreed standards’,Footnote 86 the analysis conducted below exploring legislative provisions and the interpretation of ‘Particular Social Group’ in the context of women at risk of gender-based violence in a variety of EU Member States indicates that different standards and practices exist at the national level.
B. Definition of ‘Particular Social Group’ in EU Member States
1. National legislation
The notion that women may be at risk of persecution because of their sex and therefore in need of refugee protection is reflected in the domestic legislation of several EU Member States that expressly includes references to gender or sex. Whereas some Member States include persecution based on sex as an additional ground for persecution,Footnote 87 in others this is recognised as a specific example of a ‘Particular Social Group’.
In the Czech Republic, domestic legislation specifically mentions gender as an additional ground for persecution.Footnote 88 Italy has a specific non-refoulement provision that prevents refoulement to a country where a person may be persecuted for, among other reasons, their sex.Footnote 89 The definitions of a refugee set out in domestic legislation in Germany,Footnote 90 Ireland,Footnote 91 SpainFootnote 92 and SwedenFootnote 93 explicitly include sex or gender as specific examples of ‘Particular Social Groups’.
The application of these domestic provisions has led to inclusive judicial decisions resulting in refugee protection for women at risk of gender-based violence. For example, the German Administrative Court in Stuttgart recognised the refugee status of an unmarried woman with a ‘Western’ lifestyle as she would be at risk of gender-based persecution if she were to return to Iraq.Footnote 94 In addition, the German Administrative Court in Aachen concluded that a risk of female genital mutilation (FGM) amounts to a threat to a woman's life, freedom from bodily harm or liberty solely on account of her sex, and therefore constituted persecution due to membership of a ‘Particular Social Group’.Footnote 95 The Administrative Court of Oldenburg allowed the appeal of an Algerian woman who was at risk of forced marriage on account of her sex and thus due to her membership of a ‘Particular Social Group’.Footnote 96 A Chinese woman was recognised as a refugee because of the risk of forced sterilisation, which was considered to be a form of gender-based persecution of members of a ‘Particular Social Group’, this being women.Footnote 97
In Spain, the Supreme Court has previously recognised as refugees women who were at risk of persecution because of their ‘female gender’. There is an express legislative recognition that sex or gender is a sufficient characteristic for there to be a ‘Particular Social Group’ and so there is no need for extensive discussions concerning its definition. As a result, several women have been granted protection from gender-based violence and discrimination: a woman victim of domestic violence from Algeria,Footnote 98 where the Spanish Supreme Court also endorsed the 1991 UNHCR Guidelines on Women;Footnote 99 a Ukrainian single parent struggling to survive due to potential social and employment discrimination;Footnote 100 a woman at potential risk of FGM in Nigeria;Footnote 101 and a woman at risk of FGM and forced marriage in Nigeria.Footnote 102 In Sweden, the Migration Court of Appeal has recognised women as comprising a ‘Particular Social Group’ on the basis of their sex or gender.Footnote 103 Examples of such cases include an Albanian woman and her two children who were at risk of gender-based violence from her ex-husband and his relatives in the absence of State protectionFootnote 104 and a Somali woman who had given birth to a child outside marriage.Footnote 105 Thus, there is judicial recognition that sex alone provides a sufficient basis for being a member of a ‘Particular Social Group’.Footnote 106
The express recognition that women may have a well-founded fear of being persecuted for reasons of sex in national legislation and judicial decisions means that women at risk of gender-based violence in their home countries are more likely to be awarded refugee protection in a straightforward manner.Footnote 107 Furthermore, reliance on domestic law means that refugee women are insulated from the regressive interpretative trends found in EU law, such as the narrow approach adopted by the CJEU in X, Y and Z and EASO's restrictive guidance to Member States based on its reading of that decision and its contrasting approach to other groups as discussed above.
2. National jurisprudence
Even where States have not adopted specific legislative provisions providing for persecution on the basis of sex or gender, there is nonetheless widespread recognition that women can constitute a ‘Particular Social Group’. Whilst some States transposed the two limbs of Article 10(1)(d) on the basis that they were alternativesFootnote 108 and others did not, some of those States which did not do so nevertheless interpret the provision as if they were alternatives, meaning that sex is in fact a sufficient characteristic for the existence of a ‘Particular Social Group’.Footnote 109 As a result, women from various countries of origin have been found to constitute ‘Particular Social Groups’, including women in Afghanistan, by the Austrian Asylum Court,Footnote 110 as have women in Burkina FasoFootnote 111 and Guinea by the Belgium Council for Alien Law Litigation,Footnote 112 and women in Sierra LeoneFootnote 113 and Pakistan by the UK House of Lords.Footnote 114 Judicial interpretation in Belgium, the UK and France will be explored in further detail below to illustrate how national authorities have interpreted Article 10(1)(d) Qualification Directive in cases of women who fear gender-based violence. Such national practice stands in stark contrast to the restrictive interpretation of the CJEU judgment in X, Y and Z.
The Belgian Aliens Act provides that the two limbs of Article 10(1)(d) are cumulativeFootnote 115 but in practice the judiciary interpret it more flexibly, sometimes referring to one limb only and sometimes to both.Footnote 116 Sex has been recognised as an innate characteristic and thus as a basis for the existence of a ‘Particular Social Group’ as far back as 2002.Footnote 117 The Belgian Council for Alien Law Litigation regularly draws on jurisprudence from other jurisdictions. It endorsed the Canadian decision of Ward v Canada,Footnote 118 stressing the jurisprudential evolution of the scope to be given to this Convention ground and found that ‘the social group can be defined from the existence of innate or immutable features, such as sex’.Footnote 119 The Belgian Council for Alien Law Litigation also regularly cites the UK House of Lords decision in Shah and Islam, the first decision from the UK higher courts establishing that women constituted a ‘Particular Social Group’.Footnote 120
Although the word ‘and’ is placed between the two limbs in the Belgian Aliens Act, they are both prefaced by the words ‘amongst others’. In jurisprudence post-dating X, Y and Z, the Belgian Council for Alien Law Litigation has interpreted the national provision transposing Article 10(1)(d) as being not exhaustive. It also took into account the fact that the Qualification Directive merely sets out minimum standards and these have to be interpreted in the light of the Refugee Convention and the EU Charter.Footnote 121 The Court has on several occasions pointed out that the characteristic of sex is sufficient to distinguish the group from the rest of society. It thus considers that sex is an immutable characteristic and provides a sufficient basis for the existence of a ‘Particular Social Group’ but that, in addition, this very fact means that women are perceived as being different from the rest of society.Footnote 122
In the UK, Article 10(1)(d) Qualification Directive is transposed almost word by word, although the words ‘in particular’ were replaced with ‘for example’.Footnote 123 In the case of Fornah, the House of LordsFootnote 124 expressly indicated that applying the two limbs cumulatively would impose a stricter test than that provided for in international lawFootnote 125 and the UNHCR's PSG Guidelines reflecting the alternative approach were strongly endorsed.Footnote 126 However, the response to this judgment has been inconsistent. In some cases, the Upper Tribunal followed Fornah and has found, for example, that women in Bangladesh are a ‘Particular Social Group’ because the lack of State protection against domestic violence was ‘on account of the fact she is a woman’.Footnote 127 In other cases, the Tribunal has departed from Fornah and adopted a cumulative approach by requiring ‘discrimination in the wider sense’ where the group ‘is the broad one of gender or a group with gender-based identifying features’.Footnote 128 The need for such an additional requirement has been criticised for being discriminatory and contrary to international refugee law.Footnote 129
More recently, the Upper Tribunal has expressly rejected the cumulative approach after reviewing the relevant authorities in its latest decision providing guidance on the interpretation of ‘Particular Social Group’.Footnote 130 It noted that the CJEU decision in X, Y and Z did not consider whether a literal interpretation of the provision was compatible with the Refugee Convention.Footnote 131 It emphasised that the Refugee Convention imposes a higher standard of protection than is provided by a literal reading of Article 10(1)(d) Qualification Directive and the provision should therefore be read as if the word ‘or’ linked the two limbs of Article 10(1)(d) and the related national Regulations.Footnote 132 Thus, despite some past inconsistent practice, the Upper Tribunal has now confirmed its adherence to the approach set out by the House of Lords. Overall, there is extensive jurisprudence in the UK in which women have been recognised as members of widely defined ‘Particular Social Groups’ based on the protected characteristics approach.Footnote 133
In France, Article 10(1)(d) Qualification Directive has been transposed mainly by cross-reference to it, and the French National Asylum Court has traditionally interpreted the two limbs of Article 10(1)(d) as cumulative.Footnote 134 The main difficulty has been that in order to be considered members of a ‘Particular Social Group’ it was necessary for women and girls to demonstrate, in their country of origin, their opposition to the practices which they claimed put them at risk of persecution in order to be perceived as having transgressed cultural norms.Footnote 135 In addition, in the case of a Syrian Kurdish woman fleeing forced marriage and domestic violence in 2004, the Court refused to recognise ‘people of the female sex’ as comprising a group because they did not constitute ‘a circumscribed and sufficiently identifiable group of persons’.Footnote 136 Since the French National Asylum Court required women and girls to have actively manifested their opposition to the acts which would constitute persecution, mothers of girls born in France but who would be at risk of FGM in their home countries should they return were not able to obtain refugee status as the mother had not been perceived as transgressing cultural norms in the country concerned and the children were too young to demonstrate opposition. Therefore, neither were considered members of a ‘Particular Social Group’ and they were merely entitled to subsidiary protection.Footnote 137
However, this has now changed. Both limbs must still be met, but applicants are no longer required to have expressly and publicly opposed the persecutory practice and as a result membership of a ‘Particular Social Group’ is to be understood as an objective fact and not dependent on the actions of the person in question.Footnote 138 The abandonment of the requirement for women to have publicly opposed the persecutory practice in their country of origin is a positive development and aligns more closely with practice across Europe. Nonetheless, there is still an emphasis on demonstrating that the group has a distinct identity on the basis that society generally perceives the members of the group as different (the social perception approach). The Court has now established that in cases of gender-based violence, this can be demonstrated where persecutory harm, such as FGM or forced marriage, is so commonly practised that it amounts to a social norm in the country in question and the second limb is met by the mere fact of not wanting to be subjected to that prevailing social norm. EASO's Guidance appears to endorse this approach when it gives the example of ‘countries or regions where the prevalence rate of FGM is high’ in its guidance on whether the concerned group is perceived as being different by the surrounding society.Footnote 139
The French ‘social norm’ approach raises questions concerning how prevalent violations of women's rights must be before the social perception test is met. The concerns with the French approach are twofold. First, this may become the central focus of asylum determination rather than being used solely to determine whether the applicant has a well-founded fear of persecution. Secondly, the question of prevalence is relevant to whether there is a well-founded fear of persecution, rather than whether a person is a member of a ‘Particular Social Group’. Other Refugee Convention grounds do not depend on how many people may be at risk of persecution. For example, family members have been recognised as comprising a ‘Particular Social Group’,Footnote 140 and this is a much smaller group than that of ‘women’ generally. Equally, it is well established that not all members of the group need to be at risk. Such an approach blurs the boundaries between the assessment of risk and the grounds of persecution in a manner which is unwarranted by international refugee law.
However, the concern that the determination of a ‘Particular Social Group’ would become focussed on quantitative evaluations of persecutory practiceFootnote 141 has proven to be unfounded. The French National Asylum Court has subsequently confirmed that because the existence of a ‘Particular Social Group’ does not depend on the size of the group, the existence of the group is not to be determined solely on the basis of the extent of the persecutory practice in the country concerned.Footnote 142 Overall, and despite French practice requiring the use of the social perception approach, recent developments have rendered that approach more inclusive and it still allows for the recognition of women as ‘Particular Social Groups’. However, the convergence between the protected characteristics and the social perception approaches, discussed below, would mean that there was an inclusive interpretation, which would better ensure the effective protection of women at risk of gender-based violence.
IV. AN INCLUSIVE AND INTEGRATED APPROACH
The above discussion demonstrates that in a significant number of EU Member States there is legal recognition, either on the basis of an express legislative provision or on the basis of the interpretation given to ‘Particular Social Group’, that women may have a well-founded fear of being persecuted because they are women. It is widely accepted that sex can properly be the sole reason for persecution and, accordingly, that sex as a protected characteristic is sufficient to establish a ‘Particular Social Group’, either on its own or because it means that the group has a distinct identity in the relevant country, justifying the granting of refugee status where there is a well-founded fear of persecution. Even in States where the jurisprudence has fluctuated on this, it has ultimately been resolved in a way which places women at risk of gender-based violence at the centre of refugee law.
However, in countries such as France (and the UK if the legislative amendments to the definition of ‘Particular Social Group’ in the Nationality and Borders Bill 2021 come into force), some concerns remain regarding the interpretation and application of the second limb of Article 10(1)(d) Qualification Directive, this being that the ‘group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society’. Moreover, the narrow approach of the CJEU in X, Y and Z and EASO's restrictive interpretation of it in its Guidance on Membership of a Particular Social Group, mean that there is a pressing need for a principled approach to the interpretation of this Refugee Convention reason for persecution. It is for this reason that it is suggested that the protected characteristic of sex should be seen as being a sufficient basis, in itself, for the existence of a ‘Particular Social Group’.
If the cumulative approach is being applied, it is suggested that the same outcome might be achieved by adopting a convergence approach, by which a group may be perceived as ‘being different by the surrounding society’ in a given country by virtue of the innate characteristic of sex itself. As discussed above, the UNHCR guidance,Footnote 143 the practice of certain States such as BelgiumFootnote 144 and the European Commission's original approachFootnote 145 support this view. It draws on the recognition by international human rights law that violence against women is justified and condoned by both States and non-State actors on the basis of the belief that women are inferior. In some countries, legal systems and social norms differentiate between persons on the grounds of sex, with significant consequences.Footnote 146
Following the principled approach to interpretation of the Refugee Convention proposed by Hathaway and Foster, which emphasises the humanitarian purpose of the treaty grounded in the protection of human rights, interpreting the term ‘Particular Social Group’ in accordance with the general rule of treaty interpretation, indicates that it should be interpreted in a dynamic way in light of developing norms of international law.Footnote 147 Hathaway has proposed, in relation to the interpretation of persecution, that a human rights-based approach to interpretation is consistent with the general rule of treaty interpretation, which relies on widely accepted common standards and has potential for dynamic evolution.Footnote 148 A similar approach can be taken here, and international human rights law can give guidance on both the interpretation of ‘Particular Social Group’ and the nexus between the risk of being persecuted and the Convention ground in situations where women fear gender-based violence.
International law, and international human rights law in particular, have long endorsed the view that violence against women is exercised precisely because they are women or, in other words, because of their sex. The Committee monitoring compliance with the Convention for the Elimination of Discrimination against Women (CEDAW) defined gender-based violence in 1994 as ‘violence that is directed against a woman because she is a woman or that affects women disproportionately’.Footnote 149 The definition was endorsed by the more recent Istanbul Convention.Footnote 150 In the context of refugee women, the CEDAW Committee issued a General Recommendation noting that ‘gender-related forms of persecution are forms of persecution that are directed against a woman because she is a woman or that affect women disproportionately’.Footnote 151 The Special Rapporteur on Torture has set out that ‘the purpose and intent elements of the definition of tortureFootnote 152 are always fulfilled if an act is gender-specific or perpetrated against persons on the basis of their sex’.Footnote 153 This proposition has since been endorsed by the CEDAW Committee.Footnote 154 International human rights law thus acknowledges that violence may be exercised for reason of a person's sex.
Gender subordination on the other hand, is a system of belief that serves to maintain women's inferiority in a given social context. International human rights standards have long identified the relationship between the dynamics of gender norms and violence. More specifically, a number of human rights instruments and their interpretation establish that gender norms and the subordination of women have been used as means by which violence is justified, accepted or condoned. The CEDAW Committee points to the relationship between gender subordination and violence against women in the following terms: ‘traditional attitudes by which women are regarded as subordinate to men or as having stereotyped roles perpetuate widespread practices involving violence or coercion, such as family violence and abuse, forced marriage, dowry deaths, acid attacks and female circumcision. Such prejudices and practices may justify gender-based violence as a form of protection or control of women.’Footnote 155 The CEDAW Committee locates the roots of gender-based violence against women in ‘gender-related factors’, including the belief in the unequal relationship between men and women.Footnote 156 It is those gender dynamics that render gender-based violence expressly and implicitly accepted and condoned.Footnote 157
Both the Istanbul Convention and the views of the UN Special Rapporteur on Torture recognise that the purpose or objective of violence and human rights violations can be the preservation of the unequal balance of power between men and women. The Istanbul Convention expressly enshrines the proposition that violence against women is a ‘manifestation of historically unequal power relations between women and men’.Footnote 158 The Special Rapporteur on Torture in his report examining how the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment could be interpreted in a gender-inclusive manner suggests that an act may be defined as ‘gender-specific violence’ where the nature or purpose of the act is ‘aimed at “correcting” behaviour perceived as non-consonant with gender roles and stereotypes or at asserting or perpetuating male domination over women’.Footnote 159
More recently, the CEDAW Committee has said that gender-based violence against women is the means by which women's inferiority in relation to men is maintained.Footnote 160 Accordingly, the Committee highlights the importance of understanding violence against women ‘as a social rather than an individual problem’.Footnote 161 The European Court of Human Rights also acknowledges that the contracting States’ failure to respond to risk of violence against women can be due to discriminatory attitudes against applicants as women.Footnote 162 On that basis the Court has found violations of the non-discrimination provision of the European Convention on Human RightsFootnote 163 in conjunction with the prohibition of torture, inhuman and degrading treatment or punishment.Footnote 164 The concept of gender-based violence against women is understood in international human rights law as violence exercised to perpetuate systems of inequality and women's inferiority, which depends on the belief that men and women have distinct identities arising from different characteristics and roles.
As a result, international human rights law defines gender-based violence against women as violence that is exercised and condoned for reasons of sex on the basis that women are considered to be unequal to men. UNHCR acknowledges that gender refers to ‘the relationship between women and men based on socially or culturally constructed and defined identities, status, roles and responsibilities that are assigned to one sex or another’.Footnote 165 Gender subordination or, in other words, the unequal relationship between men and women, is based on the perception that men and women have distinct identities.
Overall, a human rights-based approach to the interpretation of the Refugee Convention ground of ‘Particular Social Group’ indicates that women may have a well-founded fear of being persecuted for reasons of their sex but equally that violence against women is enabled by socially constructed gender dynamics built on the distinct identity of men and women. An interpretation of Article 10(1)(d) Qualification Directive in light of international human rights law therefore supports the proposition that gender-based violence against women satisfies, if insisted upon, both the protected characteristics and the distinct identity/social perception limb of the provision.
V. CONCLUSION
It is clear that the Refugee Convention does not protect everyone at risk of persecution or serious harm in their country of origin. Demonstrating that there is a nexus to one of the five Convention grounds is an essential prerequisite for refugee protection and persons with a well-founded fear of being persecuted on the basis of one of those grounds are eligible for refugee status. However, the restrictive approaches taken by the CJEU, the CEAS and the EASO to the interpretation of ‘Particular Social Group’ have contributed to a regressive trend. Although recent scholarship suggests progress on the protection of refugee women has stalled due in part to the failure of first instance decision-makers to implement jurisprudential and policy developments,Footnote 166 this article identifies examples of good practices at the domestic level and a simultaneous backsliding at the supranational level. EASO encourages Member States to adopt a differentiated approach in the cases concerning women fearing gender-based violence. Moreover, there has been an unofficial erasure of sex in the language of the Qualification Directive, although this has not been followed in the domestic legislation or in judicial practice in some Member States. The picture which emerges is one of conflict between the inclusive legislative and interpretative practices in individual Member States and the regressive practice of EU institutions and agencies that seeks to push refugee women back into the margins of refugee law.
It is necessary to understand the purpose of the Refugee Convention as a whole in order to interpret its terms, and in particular to interpret the meaning of ‘Particular Social Group’.Footnote 167 Discrimination, understood as the exercise of differential treatment on the basis of real or perceived characteristics, lies at the heart of the Refugee Convention.Footnote 168 The fact that women are at risk of being persecuted through the operation of the law or because of societal norms is precisely the type of discriminatory ill-treatment which the Refugee Convention seeks to address. As Foster noted, the continued reliance on, or recent adoption of, the social perception approach which lacks clarity has undermined the straightforward approach of defining a ‘Particular Social Group’ by reference to sex, as an immutable characteristic equally worthy of protection under the Refugee Convention.Footnote 169 Either limb of Article 10(1)(d) should be sufficient to define a ‘Particular Social Group’ if the Refugee Convention is interpreted in light of its object and purpose, as suggested by the UNHCR and endorsed by a number of EU Member States.
As has been seen, the consistent approach across the CEDAW Committee, the Council of Europe, the UN Rapporteur on Torture and the European Court of Human Rights is to recognise that the human rights violations that women suffer may take place precisely because they are women. There are, however, wider gender norms and dynamics, which have the objective of enforcing and maintaining gender subordination, which enable such violations to take place and which may result in a lack of State protection. Gender norms are not causative factors in such persecution but rather the mechanism that enables it. The convergence between the protected characteristics and the social perception approaches is epitomised by the phenomenon of gender-based violence against women perpetuated by systems of belief that distinguish between the distinct identities of men and women.
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