Refugee convention

Similar to the instances of female genital mutilation, forced marriage can be a ground for protection under the Convention Relating to the Status of Refugees (Refugee Convention).

If forced marriage victims are to claim asylum, they need to demonstrate that the persecution they face is for reasons of one of the protected grounds, i.e. race, religion, nationality, political opinion or membership of a particular social group. In forced marriage cases, usually the ground of membership of a particular social group (such as by being ‘women’ or ‘homosexuals’) is used. After ‘membership in a particular social group,’ ‘political opinion’ is the most common Refugee Convention ground recognised in gender-related asylum claims when forced marriages or any other honour based violence is involved. In gender and sexuality claims, the persecution and harm are experienced, or expected to be experienced, at the hands of non-State actors, meaning that for a successful asylum claim, the failure of effective State protection needs to be present. However, it seems there is inconsistency in States Parties’ interpretation and application of the Convention in practice.

According to the research conducted on European Union Member States in Belgium, Hungary, Italy, Malta and the UK, gender-based persecution is occasionally interpreted on the ground of political opinion. Until 2004, the fear of persecution based on the refusal to agree to a forced marriage was not recognised to be within the scope of Article 1A(2) of the Refugee Convention. The recognition of this fear of persecution was discussed in a series of French cases in which women tried to escape forced marriage at their own risk and who were persecuted within the family and by relatives while the public authorities tolerated such behaviour.

The case of Talata in 20 02[1] represented the first discussions on forced marriage to take place, and the consequent debate illustrated the change in the law. Talata left Ghana for fear of persecution reprisals by her parents after her refusal to accept an arranged marriage. However, in this case, the French court held that the facts were not within the scope of Articles 1-1A(2) of the Refugee Convention.

Two years later, in the case of Nazia,lxi the court’s approach changed. It held that, considering the current circumstances in Pakistan, women refusing a forced marriage constituted a group (because of the common characteristics which defined women as seen by society' at large), members of which were subject to being exposed to persecutions from which the public authorities could not protect them. This satisfied the conditions of membership of a particular social group as set out under the Convention. Furthermore, the decision mentioned grave violence and ‘crimes of honour’ committed against these women with the involvement of society. The perpetrators in such countries either did not face any punishment or were only given light penalties. The same opinion was affirmed in the forced marriage cases of Tor and Ozkan for Turkey and of Tabe for Cameroon. In a broader sense, the French National Asylum Court (CNDA) recognised women fleeing honour crimes as forming a particular social group for the purposes of the Convention, and this was also illustrated when considering Kurdish women in Turkey in 2006.

Different approaches have been followed by State Parties when assessing what amounts to persecution for the purposes of the Refugee Convention. For instance, in Belgium, France, Italy, Malta, Romania, Spain, Sweden and the UK forced marriage may amount to persecution. In France, the mere fact of forced marriage does not amount to persecution. What is considered instead is whether the behaviour of the opposition and/or its consequences is considered

Forced marriage 177 persecution or serious harm. However, in practice the decisions in both the first and second instances show that they may arbitrarily grant refugee status or subsidiary protection for similar types of claim.[2]

In Spain, only four of the twenty judgments of the Spanish Courts granted refugee status or subsidiary protection to women fleeing persecution in cases of forced marriage. Despite Spanish jurisprudence illustrating that Spain only grants protection to women younger than 25 years, there has been some positive jurisprudence where the Spanish National Court has accepted that older unmarried women are at risk of forced marriage and that forced marriage can amount to persecution, even if the practice is banned in the country of origin, but where the State is unable to provide protection. On the other hand, in Sweden, forced marriage is not always recognised as amounting to persecution in practice.

A comparative analysis of the practice focusing on this issue in nine European Member States indicates that in the UK, forced marriage is not always recognised as amounting to persecution; the reason for this is given as depending on the manner in which applicants phrase and articulate the issue (by not necessarily using the words ‘forced marriage,’ for example).

In UK cases up to the early and mid-2000s, it was held that there was no particular social group for women fleeing forced marriage. This was despite the case of Shah and Islam in 1999. In Shah and Islam, the House of Lords held that as it was a ‘particular social group within the meaning of Article 1 A(2) of the Convention, it had to exist independently of the persecution so that persecution alone cannot be relied on to prove the group’s existence.’ This view can be reconciled under the UNHCR Guidelines on gender-related persecution, which provides 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.

The concept of ‘membership of a particular social group’ was also discussed in a later case in 2004 by the UK authorities in NS (Social Group - Women - Forced Marriage) Afghanistan CG21*', the UK Tribunal considered that the applicant’s two young daughters would also be at risk of forced marriage if she were returned to Afghanistan. The Tribunal held that the applicant showed that her claim was grounded in one of the reasons adumbrated in Article 1A(2) of the Refugee Convention, namely, her membership of a particular social group. That group was ‘women in Afghanistan.’[3] The Tribunal reinforced the findings in this regard by recourse to expert opinion. Making reference to Paragraph 76 of their decision in the IAA Asylum Gender Guidelines of November 2000, the applicant was found to be at risk of harm. Later on, in the case of TB (Iran),lix the UK Immigration Appeal Tribunal continued formulating a particular social group for women seeking protection within the meaning of the Refugee Convention, namely the group of‘Young Iranian Women’ who refuse to enter into arranged marriages.

Case law across several State Parties illustrates that the issue of establishing the requirements for whether a victim belongs to one of the protected grounds, and if persecution exists for the purposes of the Refugee Convention, has undergone slow and patchy development. Another concern observed in decided cases is the assessment of risk and of women’s ability to resist forced marriage, and the assessment seems to fail to grasp the real understanding of the concept of forced marriage and the power dynamics in honour based patriarchal countries.

In MD (Women) Ivory Coast CG,li2 a 22-year-old woman claimed to be at risk of forced marriage, female genital mutilation, domestic violence and the effects of adultery and discrimination and put her case before the UK authorities. Her claim was refused, and the reasons provided were that the applicant was living in a modern city (Abidjan) and had a degree of personal freedom, for example that she did not wear a headscarf and so could dress as she wanted. She was not required to be accompanied when walking outside her father’s compound, and the only restrictions on her movements were the normal limitations placed by any parent, i.e. that she should return home before midnight. Provided her father knew where she was (she was 15 years old at the time), she could do as she wished. For these reasons, the Tribunal was not satisfied that the appellant had established

Forced marriage 179 that she was at risk of harm in Abidjan as a result of her forced marriage and her adultery,[4] and her appeal was dismissed on asylum, humanitarian protection and human rights grounds. In her appeal, the appellant argued that her father and husband would kill her for bringing shame and dishonour upon the families. The Upper Tribunal was not convinced, stating that there was a scant evidence of a system of‘honour killings,’ and even less evidence that her father or her husband had the means to affect the appellant’s death. While female genital mutilation remains a serious problem in the Ivory Coast, particularly in the north, it is illegal, and practitioners have been prosecuted under anti-female genital mutilation legislation. Furthermore, the Upper Tribunal stated that adequate state protection and a viable internal relocation alternative was available. Thus, it was not satisfied that the appellant’s fear was objectively well founded.

The Upper Tribunal concluded that although women in the Ivory Coast are capable of being members of a particular social group, and that there are risks they may suffer from female genital mutilation, domestic violence and forced marriage, which are sufficiently serious to amount to persecutory treatment in the absence of a sufficiency of protection, such risks are not universal and, in particular, are very much less likely in urban areas such as Abidjan. Furthermore, the conclusion was that since the appellant herself had undergone female genital mutilation, she no longer faced any further risk of the same. However, as we have seen, women and girls can become victims of female genital mutilation more than once, and being independent or living in modern cities does not negate the risk of female genital mutilation and/or forced marriage.

The above cases illustrated some of the difficulties that are experienced in asylum claims. The authorities need to recognise women’s diverse experience of violence whether in the form of forced marriage or any other type of violence. It is argued that when asylum cases are handled, the Home Office’s main concern is immigration control rather than supporting vulnerable women.

  • [1] Commission de Recours des Refugies (CRR) 26 February 2002, France; R Errera, Refugee status—ground of persecution—membership of a particular social group (2006) 168 Public Law Case Comment. 2 Unreported, 15 October 2004, France; R Errera, Refugee status—ground of persecution—membership of a particular social group (2006) 168 Public Law Case Comment. 3 Tas (Unreported, 4 March 2005, France; Ozkan (Unreported, 11 April 2005, France); and Tabe (Unreported, 29 July 2005, France); R Errera, Refugee status—ground of persecution—membership of a particular social group (2006) 168 Public Law Case Comment. 4 The case is cited as CNDA, Mlle SA, no 544 746,16 January 2006, in Directorate General for Internal Policies Policy Department C: Citizens’ Rights and Constitutional Affairs Gender Equality', Gender-Related Asylum Claims in Europe, ‘A Comparative Analysis of Law, Policies and Practice Focusing on Women in Nine EU Member States’ (Brussels 2012) 53-54. 5 Directorate General for Internal Policies Policy Department C: Citizens’ Rights and Constitutional Affairs Gender Equality', Gender-Related Asylum Claims in Europe, ‘A Comparative Analysis of Law, Policies and Practice Focusing on Women in Nine EU Member States’ (Brussels 2012) 37 and 40. 6 See cases of FB (Lone women, PSG, internal relocation, AA (Uganda) considered) Sierra Leone [2008] UKAIT 00090.
  • [2] Directorate General for Internal Policies Policy Department C: Citizens’ Rights and Constitutional Affairs Gender Equality, Gender-Related Asylum Claims in Europe, ‘A Comparative Analysis of Law, Policies and Practice Focusing on Women in Nine EU Member States’ (Brussels 2012) 38. 2 Ibid. 3 Ibid. 28. 4 Ibid. 38. 5 JM Kenya [2005] UKIAT 00050 (22 February 2005). 6 Islam v IAT(Shah and Islam) [1999] 2AC 629. 7 Islam (A P) p Secretary of State for the Home Department and R v Immigration Appeal Tribunal and Another Ex Parte Shah (A P) (Conjoined Appeals). 8 UNHCR Guidelines on Gender-Related Persecution (2002) para 29.
  • [3] NS (Social Group - Women - Forced marriage) Afghanistan CG [2004] UKIAT 00328. 2 Ibid, para 77. 3 The IAA Asylum Gender Guidelines of November 2000, at page 5, provides that certain forms of harm are more frequently, or only, used against women, or affect women in a manner which is different to men. These include, but are not limited to, inter alia, sexual violence, societal and legal discrimination, forced prostitution, trafficking, refusal of access to contraception, bride burning, forced marriage, forced sterilisation, forced abortion, (forced) female genital mutilation, enforced nakedness/sexual humiliation. 4 TB (Iran) [2005"] UKIAT 00065 (9 March 2005). 5 MD (Women) Ivory Coast CG [2010] UKUT 215 (IAC). 6 Ibid, para 303.
  • [4] Ibid, paras 308 and 329. 2 MI) (Women) Ivory Coast CG [2010] UKUT 215 (IAC) para 282. 3 Ibid, para 297. 4 A К Gill and S Anitha, 'Forced Marriage Legislation in the UK: A Critique’ in A К Gill and S Anitha (eds) Forced Marriage: Introducing a Social Justice and Human Rights Perspective (Zed Books 2011) 144 and 153; К Charsley and M Benson, 'Marriages of Convenience and Inconvenient Marriages: Regulating Spousal Migration to Britain’ (2012) 21(1) Journal of Immigration, Asylum and Nationality 12 and 14.
 
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