Shrinking Safe Spaces for Individuals Fleeing Gender-Based Persecution

By Sherizaan Minwalla

Alisa [1] fled from Iraq seeking protection in Jordan not because of the sectarian violence, which was a problem most Iraqis living in Baghdad faced, but because she faced years of sexual abuse and was imprisoned three years for being gay.  Alisa, born Ahmed, never felt that she was a boy growing up in Iraq. However, others perceived her as effeminate and gay, and she faced many abuses throughout her life in Iraq. Once she was released from prison, she left the country to escape a forced marriage to her cousin, and sought refugee protection in Jordan. To attempt to protect herself, she expressed herself as a man, except for her long hair, which she kept tied up and under a hat. Her attempts failed and Alisa faced persistent harassment and sexual assault in Jordan for being perceived as gay. The US government denied Alisa’s request for resettlement based on security grounds, presumably because she had a criminal record, although she does not know for certain, since the US government does not disclose the basis of a security denial to the refugee.

Women and girls in particular, as well as those who face persecution due to LGBTQI status, face unique challenges to accessing international refugee protection for reasons linked to their gender, gender identity, or sexual orientation.  The barriers to refugee protection are not new, but are exacerbated by the current massive flows of people fleeing protracted conflict, and by the response of receiving countries to restrict asylum and refugee protection. [2]

“The vast majority of people confronting gender-based violence find it difficult to access protection.”

The reasons people migrate are often complex and varied, but gender-based violence compels many people around the world to flee their countries when confronted with sexual violence in conflict, by government actors, or gender-based violence perpetrated by relatives or acquaintances in their homes and communities.  Unfortunately, the vast majority of people confronting gender-based violence find it difficult to access protection under the current international legal framework.

To obtain refugee projection, a person must meet the legal definition of a ‘refugee’ under the United Nations 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, [3] defined as:

“[A] person who, owing to a 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…” [4]

Claims involving gender-based persecution have evolved over the years, as gender alone is not a protected ground. [5] A person can include ‘gender’ in conjunction with any of the five protected grounds, although many gender-persecution cases, where women are abused and threatened for asserting their rights and resisting traditionally imposed roles, frequently fall into the ‘protected social group’ (PSG) category and /or political opinion.

“The first challenge…is to cross an international border…In many countries, women and girls cannot travel alone.”

Because a person must be physically outside her country of nationality to qualify for refugee protection, [6] the first challenge for a person fleeing gender-based persecution is to cross an international border. In many countries, women and girls cannot travel alone, because they may not be able to obtain identity and travel documents, it may be against the law or tradition to travel unaccompanied by a male relative, or, as in places like Iraq and Syria, the security situation poses significant risks, and there are many criminals engaged in human trafficking who exploit women and girls who are alone and vulnerable.

Once in a country of refuge, a UNHCR officer will interview an individual to determine if she is eligible for refugee protection and possible eventual resettlement to a third safe country; according to UNHCR, fewer than one percent of refugees are resettled to another country. UNHCR provides detailed guidance for staff conducting refugee status determinations (RSD) interviews in cases involving gender-persecution claims. [7] This guidance clearly demonstrates the full range of gender-persecution claims that can arise under any of the protected grounds; it also provides solid guidance on how to adjudicate such claims procedurally, paying particular attention to issues of shame, trauma, fear of reprisals from family members, and the need to create a safe space when conducting RSD interviews. [8]

Despite the useful guidance provided to officers conducting RSD determinations, victims seeking refugee status based on gender-based persecution face hurdles when officers bring bias, stereotypes, and an insufficient training to RSD interviews and adjudication of gender-persecution claims. Consider the case of Ana, an Iraqi Kurdish woman in her 30s who, before this current refugee crisis in the Middle East, fled from a forced marriage and years of abuse by her father and elder brother. Ana had a boyfriend and was no longer a virgin, putting her at heightened risk of honor-based violence from her family. When she could no longer put off the marriage, she fled to Turkey to apply for refugee protection, hoping she would be resettled to a third country.  Following her interview, Ana waited for one year for UNHCR’s decision, denying her refugee protection on the basis that the officer did not find Ana to be credible. The officer stated that she did not find it believable that an educated woman able to work and travel could also face a forced marriage.  The widespread lack of understanding about the dynamics of gender-based persecution, combined with stereotypes about victim profiles, presents serious challenges for people seeking refugee protection due to gender-based persecution.

“In many cases, women and girls are trafficked
into prostitution.”

During the waiting period, women, girls and LGBTQI persons face heightened risks of exploitation and abuse including human trafficking. Alisa was gang raped in Jordan, and faced constant sexual harassment in public and threats of abuse.  Many refugees live in deplorable and unsafe conditions in tented camps or in substandard housing among the host population. Host country governments usually prevent refugees from legally working, leading many to work in unsafe conditions for low wages. In many cases, women and girls are trafficked into prostitution by their families, landlords, law enforcement and security officers, especially those working in refugee camps with access to vulnerable populations.

Until the recent influx of refugees into Europe, most of the world’s refugees (86%) have been hosted in the Global South, in neighboring countries with fewer economic resources. [9]  As countries in the Global North severely curtail access to refugee and asylum protection, women, girls, and LGBTQI persons who are some of the most vulnerable refugees, will face greater barriers to protection. Given the many risks facing persons fleeing gender-based persecution, it is important to ensure access to safety in countries of refuge, led by humanitarian actors and host governments. It is also critical to ensure that officers to interview and adjudicate refugee, asylum, and resettlement requests are properly trained to identify and understand gender-persecution claims in accordance with UNHCR guidance, and that there is good oversight to flag improper denials such as the one that was given to Ana.

To address the unique barriers facing persons who want to flee gender-based persecution but cannot move, it is essential to address the flaws under the current system by extending protection to those who are at grave risk of harm while they are still within their country of nationality.  This will not only protect those who would qualify as refugees except for the fact they cannot cross an international border, but it would also reduce further instances of abuse they are likely to face if they attempt such a dangerous journey.

Alisa joined the exodus of refugees fleeing the Middle East to Europe in 2015, and was recently granted residency for three years by the German government. After Ana was denied refugee protection in Turkey, she returned to Iraq, and fled again to a European country where she was able to obtain asylum protection.


About the author
Sherizaan Minwalla is a Practitioner-in-Residence at the International Human Rights Law Clinic at the American University’s Washington College of Law. She lived and worked on human rights and humanitarian programs supporting refugees and internally displaced persons in Iraq for eight years. In the US she worked for the National Immigrant Justice Center and the Tahirih Justice Center on protecting immigrant survivors of gender-based violence.


Footnotes
[1] Names used in this article have been changed to protect the identity of the individuals.
[2] Randall Hansen, Migration Policy Institute, Constrained by its Roots: How the Origins of How the Global Asylum System Limit Contemporary Protection 2-4 (2017), available at http://www.migrationpolicy.org/research/constrained-its-roots-how-origins-global-asylum-system-limit-contemporary-protection.
[3] U.N. Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150 [hereinafter UN Refugees Convention] (eliminating the geographic and temporal limitations of the Convention’s application); U.N. Protocol Relating to the Status of Refugees, Jan. 31, 1967, 606 U.N.T.S. 267 (extending the UN Refugees Convention’s protection to people made refugees due to events occurring after January 1, 1951).
[4] Id.
[5] See UN High Commissioner for Refugees (UNHCR), Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, 1, 80 (December 2011).
[6] Id. at 18 (“It is a general requirement for refugee status that an applicant who has a nationality be outside the country of his nationality.  There are no exceptions to this rule. International protection cannot come into play as long as a person is within the territorial jurisdiction of his home country.”).
[7] Id. at 80-89.
[8] Id.
[9] Hansen at 12 (citing UNHCR, Global Trends: Forced Displacement in 2015, 18).


[Source: The Refuge (April 2017), Volume 1, Issue 2, pages 8-11]

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