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Committee Opinion | Doc. 12359 | 24 September 2010
Gender-related claims for asylum
(Former) Committee on Equal Opportunities for Women and Men
A. Conclusions of the committee
(open)1. The Committee on Equal Opportunities for Women and
Men commends the thorough and well-presented report by Mr Zernovski
(“the former Yugoslav Republic of Macedonia", ALDE) and supports
the draft resolution and the draft recommendation adopted by the
Committee on Migration, Refugees and Population.
2. The committee would, however, like to propose some amendments
to the draft resolution and draft recommendation.
B. Proposed amendments to the draft resolution and the draft recommendation
(open)In the draft resolution:
Amendment A (to the draft resolution)
In the draft resolution, paragraph 8.1., replace the words “as a social group’” with the following words:
“in the notion of a ‘particular social group’ under the refugee definition set out in the 1951 Geneva Convention”.
Amendment B (to the draft resolution)
In the draft resolution, after paragraph 9.4., insert the following paragraph:
“similarly, avoid that spouses and relatives are present during the asylum interview, and ensure the confidentiality of the asylum process if the victim of gender-based or other form of violence requests it or if the sensitivity of the case so requires, including by holding in camera hearings during the appeal process;”.
Amendment C (to the draft resolution)
In the draft resolution, at the end of paragraph 10.5., add the following words:
“as well as the prevailing cultural and social conditions in the country and the possibilities to earn a living;”.
Amendment D (to the draft resolution)
In the draft resolution, replace paragraph 10.6. with the following paragraph:
“ensure that claims for asylum on the grounds of gender-based violence are examined under the relevant procedures for acquiring refugee status under the 1951 Geneva Convention; however, if dismissed, it should still be possible to examine them under complementary forms of protection.”
Amendment E (to the draft resolution)
In the draft resolution, after paragraph 10.6., insert the following paragraph:
“consider indiscriminate sexual violence in the context of armed conflicts as a form of persecution liable to engage the 1951 Geneva Convention and, in any case, as sufficient grounds for granting a complementary form of protection.”
Amendment F (to the draft resolution)
In the draft resolution, after paragraph 10.6., insert the following paragraph:
“recognise cumulative discrimination as a form of persecution for the purposes of the 1951 Geneva Convention and, in any case, as sufficient grounds for granting a complementary form of protection.”
Amendment G (to the draft resolution)
In the draft resolution, after paragraph 10.6., insert the following paragraph:
“recognise that some forms of domestic violence can amount to persecution for the purposes of the 1951 Geneva Convention and/or for the granting a complementary form of protection, in particular when such violence attains a certain level of severity and when the authorities are unable or unwilling to protect the victim.”
Amendment H (to the draft resolution)
In the draft resolution, after paragraph 11.2., insert the following paragraph:
“victims of rape, torture and sexual violence, and ensure, in particular, that they are excluded from accelerated asylum procedures and that they are given access to appropriate social and psychological care.”
In the draft recommendation:
Amendment I (to the draft recommendation)
In the draft recommendation, after paragraph 3.1., insert the following paragraph:
"instruct the Ad hoc Committee on Preventing and Combating Violence against Women and Domestic Violence (CAHVIO) to ensure that gender-based violence (including domestic violence) and gender-related persecution are adequately taken into account in the future Council of Europe convention on preventing and combating violence against women and domestic violence;".
C. Explanatory memorandum by Ms Hägg, rapporteur
(open)Introduction
1. I would like to thank Mr Zernovski, rapporteur of
the Committee on Migration, Refugees and Population, for his precise
and well-researched report, which fully captures the legal complexities
of gender-related claims for asylum. This report explains in detail
the challenges of having this kind of claim properly assessed, namely due
to:
- the inadequate understanding of gender-related persecution by the authorities involved in the asylum process;
- the persistence, in Europe, of asylum procedures which are not gender-sensitive.
2. In the present opinion, I would like to expand on some specific
aspects of gender-related claims, which have been touched upon by
Mr Zernovski.
Lack of gender-disaggregated statistics
3. For a long time, the need for detailed statistics
on asylum applications and decisions has been recognised as a priority
and recommended by different organisations, including the United
Nations High Commissioner for Refugees (UNHCR) and the Parliamentary
Assembly itself. 
4. However, not all Council of Europe member states publish gender-disaggregated
statistics on asylum applications, including important asylum countries
such as Italy and the Netherlands. Even fewer countries produce
gender-disaggregated statistics on the outcome of asylum claims.
5. I agree with the Committee on Migration, Refugees and Population
that Council of Europe member states should be asked to publish
gender-disaggregated statistics (paragraph 13.4 of the draft resolution): without
this data, it is not possible to monitor progress towards meeting
the needs of victims of gender-related persecution; at the same
time, whether or not a state produces gender-differentiated statistics
is a preliminary indication of its sensitivity to gender issues
in the context of asylum.
6. If the quantitative information about gender-related claims
for asylum is poor, qualitative information is virtually absent:
there is no official, systematic and accessible information on whether
special safeguards are implemented during the procedure (for instance,
the availability of same-sex interpreters, interviewers, etc.), on
the form of persecution being at the origin of the claim, on the
grounds for dismissing or recognising the claim, etc.
Gender-related claims for asylum should be examined under the 1951 Geneva Convention, and not automatically referred to complementary forms of protection
7. Despite this lack of data, it is well known that,
in a number of Council of Europe member states, gender-related claims
for asylum are treated as claims for complementary protection rather
than refugee status.
8. This happens, in particular, in those countries which grant
complementary forms of protection to victims of human rights violations,
for instance under Article 3 of the European Convention on Human
Rights (prohibition of torture and inhuman and degrading treatment
or punishment) or other international human rights instruments.
9. For example, according to the Swedish Gender Guidelines, which
are directed to all asylum decision makers, “gender” does not fall
under the category of “particular social group” under the 1951 Geneva Convention
Relating to the Status of Refugees (henceforth, the “1951 Geneva
Convention”) and asylum seekers with well-founded gender-related
claims can only be provided with complementary protection.
10. In my opinion, this automatic exclusion from refugee status
is gender discrimination in the context of the asylum procedure
and should be discontinued: although gender-based persecution is,
without any doubt, a violation of human rights, this violation can
be inflicted upon certain individuals as members of a social group (women,
young girls, young men and boys, homosexual or transgender persons);
in addition, these human rights violations may be inflicted on several
grounds, including others listed in the refugee definition.
11. Council of Europe member states should, therefore, in the
first place assess gender-related claims under the 1951 Geneva Convention,
and only if the claim is dismissed on its merits, examine it under
the angle of complementary protection.
12. The issue is far from being a purely technical one, as the
rights stemming from refugee status are more far-reaching and the
relevant protection more durable than those stemming from other
statuses. I believe that this matter should be made clearer in the
draft resolution (see Amendment D).
Cumulative discrimination can amount to persecution
13. Afghanistan, Iraq, Somalia, Democratic Republic of
Congo, Myanmar, Colombia, Sudan … These are, in this order, the main
countries of origin of refugees in the world today. These are also
countries where, in their everyday life, women face serious, widespread
and endemic discrimination in the enjoyment of basic rights, against
which the state is unable or unwilling to provide protection and
redress.
These are, in this order, the main
countries of origin of refugees in the world today. These are also
countries where, in their everyday life, women face serious, widespread
and endemic discrimination in the enjoyment of basic rights, against
which the state is unable or unwilling to provide protection and
redress. 14. Unfortunately, only a few Council of Europe member states,
such as Sweden and the United Kingdom, explicitly recognise discrimination
as potentially constituting persecution, while the great majority
of European countries tend to have a more restrictive position.
15. In my opinion, to be fully consistent with the values to which
they have vowed to adhere by becoming members of the Organisation,
the member states of the Council of Europe should be at the forefront
in upholding the universality of human rights, against any form
of cultural or religious relativism. This requires that they accept
that:
- cumulative discrimination based on gender is such a serious human rights violation as to justify the granting of a form of international protection;
- in some cases, cumulative discrimination based on gender can reach such a threshold of severity as to qualify as persecution under the 1951 Geneva Convention;
- similarly, the failure of a state to provide protection to certain individuals on gender grounds can be in itself a form of persecution.
16. My view is also supported by the UNHCR Guidelines on Gender-Related
Persecution, which
state:
which
state:“14. While it is generally agreed that ‘mere’ discrimination may not, in the normal course, amount to persecution in and of itself, a pattern of discrimination or less favourable treatment could, on cumulative grounds, amount to persecution and warrant international protection. It would, for instance, amount to persecution if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, for example, serious restrictions on the right to earn one’s livelihood, the right to practice one’s religion, or access to available educational facilities.
15. Significant to gender-related claims is also an analysis of forms of discrimination by the state in failing to extend protection to individuals against certain types of harm. If the state, as a matter of policy or practice, does not accord certain rights or protection from serious abuse, then the discrimination in extending protection, which results in serious harm inflicted with impunity, could amount to persecution. Particular cases of domestic violence, or of abuse for reasons of one’s differing sexual orientation, could, for example, be analysed in this context.”
17. I would, therefore, like to propose an amendment to the draft
resolution to encourage Council of Europe member states to take
a more progressive stand on the issue of cumulative discrimination
(see Amendment F).
Unfeasibility of internal relocation
18. As the Committee on Migration, Refugees and Population
recommends in its draft resolution, Council of Europe member states
should “restrict the use of internal flight alternatives for asylum
seekers who invoke gender-related claims, taking carefully into
account the availability of state protection in the area of relocation and
the safety of the route” (paragraph 10.5.).
19. However, given the pattern of discrimination on gender grounds
and the social and cultural conditions prevailing in most countries
of origin, I think that Council of Europe member states should also
take into account the practical feasibility for women and other
victims of gender-violence to be able to start a new life and earn a
living in a different part of the country (see Amendment C).
Generalised violence in the context of armed conflicts
20. In his report, Mr Zernovski mentions violence against
women as a means of warfare (paragraphs 28 and 29). Regrettably,
claims for international protection from women who have been subjected
to sexual violence in the context of armed conflicts are often dismissed
under the 1951 Geneva Convention, on the grounds that violence was
indiscriminate (and therefore not targeting specifically the applicant)
and/or due to lack of convention grounds.
21. I cannot agree with this reasoning. In my opinion, Council
of Europe member states should recognise the political nature of
the systematic sexual violence in the context of armed conflicts,
which is specifically directed to women as the mothers of future
generations and is intended to leave durable scars on the victims as
well as on the entire community.
22. Women and young girls who have fled their countries of origin
and seek protection in Europe after having suffered such an experience
should be given a chance to have their cases examined under the
1951 Geneva Convention in the first place and, if the case is dismissed,
under a complementary form of protection.
23. I think that also this matter should be mentioned in the draft
resolution (see Amendment E).
Rape as torture
24. In his report, Mr Zernovski has developed well the
issue of gender-specific violence, which is at the origin of a large
proportion of gender-based asylum claims. I will not duplicate the
analysis that he has already conducted but I think that it should
be recalled that, under the case law of the European Court of Human
Rights, rape can be a form of torture and that, in any case,
a positive obligation of investigation and prosecution of this criminal
act falls on the authorities.
and that, in any case,
a positive obligation of investigation and prosecution of this criminal
act falls on the authorities. 25. I believe that the draft resolution should make it clear that
victims of rape and sexual violence should be entitled to all the
range of procedural safeguards (such as the exclusion from accelerated
procedures, as already recommended by the Assembly) and the social and psychological
assistance that Council of Europe member states should make available
for victims of torture (see Amendment H).
and the social and psychological
assistance that Council of Europe member states should make available
for victims of torture (see Amendment H).Domestic violence
26. I would like to recommend that domestic violence
is also specifically mentioned in the context of gender-related
claims for asylum. In some circumstances – in particular when their
country of origin is unable or unwilling to protect them – victims
of domestic violence should be able to have access to the asylum procedures
and be granted refugee status or, alternatively, a complementary
form of protection. I also consider it very important that the relevance
of domestic violence in the context of the asylum procedures is
explicitly taken into account in the negotiations of the Ad hoc
Committee on Preventing and Combating Violence against Women and
Domestic Violence (CAHVIO) and appears in the text of the future
Council of Europe convention on preventing and combating violence
against women and domestic violence. Therefore, I would like to suggest
an amendment to the draft resolution (see Amendment G) and to the
draft recommendation (see Amendment I) of the Committee on Migration,
Refugees and Population.
Therefore, I would like to suggest
an amendment to the draft resolution (see Amendment G) and to the
draft recommendation (see Amendment I) of the Committee on Migration,
Refugees and Population.Conclusions
27. The policy and practice of Council of Europe member
states in dealing with gender-related claims for asylum varies,
with at the one end of the spectrum countries without a gender-sensitive
approach and, at the other end, countries such as the United Kingdom
which publishes gender-disaggregated statistics on asylum applications
and decisions, has produced guidelines on gender issues for interviewing
officers and decision makers, recognises women as members of a social
group under the 1951 Geneva Convention and recognises sexual violence
as persecution.
28. I believe that the merits of the draft resolution adopted
by the Committee on Migration, Refugees and Population are manifold:
- it asks Council of Europe member states to acknowledge the specificity of gender-related claims;
- it aims at a harmonised approach to gender-related claims for asylum in Council of Europe member states;
- it promotes harmonisation of a high standard.
29. I encourage the members of the Assembly to support the draft
resolution and the draft recommendation, as a valuable contribution
to ensuring that women’s rights are recognised as human rights and
are fully protected.