Immigration and asylum laws

Legislation and guiding policies on immigration and asylum for cases involving harmful practices should be developed within the framework of international human rights law. Drafters should ensure that grounds for asylum include gender persecution. Specifically, laws should ensure that a woman or girl may seek asylum on the basis of having been subjected to a harmful practice or that she is at risk of harmful practice.  Laws should state that women and girls who are victims of or fear persecution through harmful practices constitute members of a particular social group for asylum purposes. Laws should also provide that a relative may also seek asylum for seeking to protect a woman or girl from a harmful practice.  Where a conflict between women’s human rights and cultural rights arises, laws should clearly state that women’s human rights prevail in determining asylum grants. (See: Good Practices on Harmful Practices Expert Group Report; Council of Europe Parliamentary Assembly Report Doc. 12350, 26 July 2010, Gender-related claims for asylum.)

Countries should ensure that survivors of harmful practices not face deportation or other negative immigration consequences when reporting crimes of violence to police and other officials. Drafters should ensure that laws allow victims of violence to independently and confidentially apply for legal immigration status. (See: Good Practices in Legislation to Address Violence Against Women, Report of the Expert Group Meeting, p. 37)

Guidelines and Protocols for Asylum Officers

The UN Handbook recommends that laws require the ministerial branch responsible for asylum procedures consult with police, prosecutors, judges, health and education professionals to develop regulations, guidelines and other protocols for implementation within a specified timeframe of the law’s entry into force (p. 20-21). Drafters should ensure that the relevant government body work in coordination with other professionals and should draw upon the UN Guidelines on International Protection: Gender Related Persecution within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees. Those responsible for considering asylum requests should:

• Interview female asylum-seekers separately;

• Provide women asylum-seekers with information about and access to the asylum process, in a way and language understandable to them;

• Provide interviewees with a choice of interviewers and interpreters of their same sex and who are aware of cultural, religious or social sensitivities;

• Offer an open and reassuring environment;

• Make introductions, explain persons’ roles, making clear he or she is not a trauma counselor, explain the interview purpose and emphasize confidentiality;

• Maintain a demeanor that is neutral, compassionate and objective with minimal interruptions;

• Ask open-ended and specific questions, keeping in mind that women and girl asylum applicants may not associate harmful practices they are fleeing with questions about torture;

• Be open to stopping and scheduling subsequent interviews should the claimants’ emotional needs require;

• Allow for adequate preparation to build confidence and trust, as well as allow the officer to pose the right questions;

• Collect relevant information from the country of origin;

• Avoid allowing the claimant’s type and level of emotion to influence credibility. Recognize that exact details of the act of rape, sexual assault, or harmful practice, may not be necessary, but focus on the events prior to and during the violation, the context and other details, and the possible motivation of the perpetrator; and

• Provide referrals to psychosocial counseling and support services. Strive to make available psycho-social counselors prior to and following the interview.

(See: Domestic Violence, Trafficking in Women and Girls, Female Genital Mutilation, Forced and Child Marriage, Honour Crimes)

Also, laws should provide trainings for asylum and immigration officers on gender-sensitive issues and customs and practices. Trainings should increase officers’ understanding of the dynamics of harmful practices, as well as those customs and practices that place women and girls at risk for harmful practices. At a minimum, trainings should include the following basic information about common ways women are persecuted:

• Violations of social mores or failing to comply with cultural or religious norms that may result in harm, abuse or harsh treatment distinguishable from the treatment given the general population. Applicants frequently are without meaningful recourse to state protection. 

• A woman’s claim may be based on persecution particular to her gender.  Such a claim may be analyzed and approved under one or more grounds. For example, rape, sexual abuse, domestic violence, infanticide and genital mutilation are forms of mistreatment primarily directed at girls and women and they may serve as evidence of past persecution on account of one or more of the grounds for which asylum is granted. 

• Societal expectations that require women to live under the protection of male family members. The death or absence of a spouse or other male family members may render a woman even more vulnerable to abuse.

• Survivors of rape or other sexual abuse may face stigmatization from their community. They may also be at risk for additional violence, abuse or discrimination because they are viewed as having brought shame and dishonour on themselves, their families, and communities.

(See: United States Country Page, Stop VAW, The Advocates for Human Rights and Considerations for Asylum Officers Adjudicating Asylum Claims from Women, Memorandum to All INS Officers/HQASM Coordinators from Phyllis Coven, Office of International Affairs, May 26, 1995, p. 4.)