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Resolution 1765 (2010) Final version
Gender-related claims for asylum
1. Fifty-two per cent of all refugees
in Europe are women or girls. Many of them seek asylum due to persecution
that is specific to their being female. These people deserve to
be treated in a way that recognises their particular needs and any
persecution and violence they may have faced due to their gender.
2. Gender-related persecution, where the victims are persecuted
because they are women, and gender-based violence, such as rape,
can give rise to international protection claims. According to non-governmental organisations
(NGOs) and international organisations, states do not always take
into account the gender dimension when assessing asylum applications.
Persecution experienced by women and girls often differs from that
experienced by men, but the asylum system still tends to regard
it through the lens of male experiences.
3. Women and girls may face various forms of gender-related harm,
persecution and gender-based violence. These include sexual exploitation,
forced marriage, so-called “honour crimes”, forced abortion, forced pregnancy
and forced sterilisation. During armed conflict, women and girls
may be subjected to physical, sexual and psychological violence,
including rape. Two other forms of harm that women, and girls in
particular, may face are female genital mutilation and trafficking
in human beings. They may also be victims of so-called honour crimes.
The perpetrators of gender-based forms of violence (or harm) can
be non-state as well as state actors.
4. Individuals who are gay, lesbian, bisexual or transgender
also face particular forms of gender-related persecution and gender-based
violence and often have to hide their sexual orientation or risk
being harassed, or in extreme cases being beaten and even killed.
5. The Parliamentary Assembly has previously addressed different
forms of gender-based violence, in particular in its Resolution 1635 (2008) on
combating violence against women: towards a Council of Europe convention
and Resolution 1662 (2009) on
action to combat gender-based human rights violations, including the
abduction of women and girls. Although many member states are stepping
up their work in order to streamline a gender understanding into
public decision making, policy and operations, this understanding
does not always translate into the asylum process.
6. In addition to the problem of gender issues not being properly
taken into account in the assessment of asylum claims, the asylum
procedure in member states often makes it difficult for women to
tell their full story. A woman who faces a male interviewer or interpreter
can be reluctant to speak freely and give a full account of the
violence she has experienced, whether gender based or not. Moreover,
the officials involved in the asylum procedure often lack adequate
training on gender issues and therefore fail to ask the right questions
or to analyse the evidence before them properly. This problem may
be exacerbated by the use of country of origin information that
ignores gender issues or has little gender relevance. Furthermore,
the social situation of a woman in the asylum process may also work
against her, whether in terms of her situation in detention or her situation
in society in the host country, where she may continue to face forms
of discrimination and even violence.
7. The Assembly recalls the recommendations set out in its Resolution 1695 (2009) on
improving the quality and consistency of asylum decisions in the
Council of Europe member states. It also recalls its Resolution 1662 (2009) and
emphasises the relevance of these texts in tackling the issue of
gender-based violence and gender-based persecution in asylum claims.
8. Women and girls seeking asylum in Council of Europe member
states have the right to have their protection claims assessed by
an asylum system that is sensitive, in all aspects of its policy
and operation, to the particular forms of persecution and human
rights abuses that women face because of their gender. Therefore,
the Assembly calls on member states to:
8.1. ensure that gender-based violence
is taken into account under the five different grounds of persecution
(race, religion, nationality, membership of a particular social
group or political opinion) in any asylum determination process
and that “gender” is specifically included in the notion of a “particular social
group” under the refugee definition set out in the 1951 UN Convention
relating to the Status of Refugees (Geneva Convention), preferably
by law, or at least in practice;
8.2. take into account that not only women and girls face gender-based
violence and gender-related persecution, but that men and boys may
also be victims;
8.3. take into account that gay, lesbian, bisexual or transgender
persons are increasingly facing gender-based violence and gender-related
persecution.
9. In order to ensure that asylum procedures are sufficiently
sensitive to gender-related claims, the Assembly further recommends
that member states:
9.1. identify,
as early in the process as possible, women and girls that may have
faced gender-based violence and gender-related persecution, and
where appropriate ensure that they are registered in their individual
capacity in order to remain independent of their husbands or male
relatives when pursuing their applications;
9.2. ensure that women who might suffer trauma due to gender-based
or other forms of violence are given sufficient time to reflect
and recuperate before the asylum procedure is initiated, if necessary
on the basis of a special temporary residence permit, which should,
however, not preclude or replace the long-term residence permit
that could be granted once refugee status has been established;
9.3. ensure that women are automatically provided with assistance
and interpretation by female counsellors and interpreters when formulating
their asylum claims and filling out their applications;
9.4. ensure that women fill out their asylum application themselves
and that this is not done for them by husbands or other relatives;
9.5. similarly, avoid the presence of spouses and relatives
during the asylum interview, and ensure the confidentiality of the
asylum process if the victim of gender-based or other forms of violence
requests it or if the sensitivity of the case so requires, including
by holding in camera hearings during the appeal process;
9.6. guarantee that interviewers and interpreters dealing with
female asylum seekers are always women. If for any reason this is
not possible, the female asylum seeker should be informed of the
right to have a woman interviewer or interpreter;
9.7. ensure that the asylum interview is carried out in a gender-sensitive
way and, in particular, that questions relevant to gender-based
violence and gender-related persecution are asked;
9.8. ensure that women are not hindered from accessing asylum
procedures by lack of childcare opportunities or problems in queuing
and obtaining appointments for their asylum claims, etc.
10. In order to ensure that the decision process sufficiently
takes into account gender-related asylum claims, the Assembly also
recommends that member states:
10.1. ensure
that country of origin information is up to date on gender-based
violence and gender-related persecution issues;
10.2. ensure that the asylum determination is carried out by
an official who has received adequate training with a view to properly
detecting the occurrence of gender-based violence and gender-related persecution
that may give the right to refugee or other status;
10.3. take fully into consideration that the majority of gender-based
violence and gender-related persecution is inflicted by private
actors, but that the state retains the responsibility to protect
victims, whether or not it is able to do so;
10.4. take into account that a woman who has chosen not to avail
herself of the protection of the state from which she is fleeing
might have done so for fear of retaliation and further abuse (for
example by male relatives), and make sure that this does not prejudice
her claim for refugee status;
10.5. 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, as well as the prevailing cultural
and social conditions in the country and the possibilities to earn
a living;
10.6. 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;
10.7. 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;
10.8. 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;
10.9. recognise that some forms of domestic violence can amount
to persecution for the purposes of the 1951 Geneva Convention and/or
for the granting of a complementary form of protection, in particular when
such violence reaches a certain level of severity and when the authorities
are unable or unwilling to protect the victim.
11. The Assembly considers that, in the asylum process, member
states should, in particular, take into account the special problems
faced by:
11.1. victims of trafficking,
notably women and girls, and in this respect:
11.1.1. ensure
that trafficking in human beings, in particular for sexual exploitation,
is considered as a form of persecution on which a claim for asylum
can be based;
11.1.2. ensure that the collaboration of the woman or girl concerned
with the police, prosecutor or judiciary should not be a precondition
for the granting of asylum or other complementary form of international
protection;
11.2. victims or potential victims of female genital mutilation,
and in this respect:
11.2.1. recognise female genital mutilation
and the risk of female genital mutilation as potential grounds for
an asylum claim;
11.2.2. take into account a well-founded fear of female genital
mutilation concerning a daughter born after the flight of her parents,
even when the parents have been in the country of asylum for some
time;
11.3. victims of rape, torture and sexual violence, and ensure,
in particular, that they are exempt from accelerated asylum procedures
and that they are given access to appropriate social and psychological care;
11.4. victims or potential victims of forced sterilisation,
and in this respect ensure that forced sterilisation is recognised
as a potential ground for an asylum claim.
12. Bearing in mind the particular vulnerability of female asylum
seekers in relation to their social and legal situation before,
during and after the asylum process, member states should ensure
that:
12.1. the physical safety
of asylum-seeking women and girls is guaranteed, in particular if
they are provided with collective accommodation or held in detention;
12.2. female asylum seekers are provided with work permits to
allow them independence and to avoid increasing their vulnerability
and making them targets for exploitation.
13. In order for member states to ensure that gender-based violence
and gender-related persecution are adequately taken into account
in the asylum process, the Assembly urges member states to:
13.1. render their asylum systems
and asylum procedures gender sensitive, including by providing compulsory
training to officials;
13.2. undertake a gender-impact assessment of all current and
proposed asylum policies and procedures and make adjustments to
address discriminatory or negative effects due to gender;
13.3. collect and analyse statistics with regard to gender-based
violence and gender-related persecution in asylum claims;
13.4. ensure that all asylum statistics are sex-disaggregated;
13.5. publish national asylum precedents concerning gender-based
violence and gender-related persecution as a means of raising awareness
and ensuring greater quality and consistency in European asylum
systems.
14. The Assembly recommends that member states take all necessary
measures to tackle the roots of gender-based violence and gender-related
persecution, both within their own borders and also in countries
of origin.