Immigration laws

Legal Basis

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 fear of a harmful practice targeting women and/or girls, including an “honour” crime or killing. Laws should state that women and girls who are victims of or fear persecution through “honour” crimes or killings constitute members of a particular social group for asylum purposes. (See: Prochazka, Susanne J., Note – There Is No Honor in Honor Killing: Why Women at Risk for Defying Sociosexual Norms Must Be Considered a “Particular Social Group” Under Asylum Law, Thomas Jefferson Law Review, Vol. 34, Spring 2012, p. 445). Laws should also provide that a relative may also seek asylum on the basis of seeking to protect a woman or girl from an “honour” crime or killing, as relatives who do so may themselves be at risk of retributive violence. 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 in Legislation on “Harmful Practices” against Women , UN Division for the Advancement of Women, 26-29 May 2009, Section 3.8.1) 

Countries should ensure that survivors of “honour” crimes do not face deportation or other negative immigration consequences when reporting such crimes to police and other officials. Drafters should ensure that laws allow victims of violence to independently and confidentially apply for legal immigration status. (See: the United Nations expert group report entitled "Good practices in legislation on violence against women,” 26-28 May 2008, p. 38).

Guidelines and Protocols for Asylum Officers

The UN Handbook for Legislation on Violence against Women recommends that laws require the appropriate ministerial branch responsible for asylum procedures to consult with police, prosecutors, judges, and health and education professionals to develop regulations, guidelines and other protocols for implementation of such laws within a specified timeframe of the law’s’ entry into force (p. 20-21). Drafters should ensure that the relevant government body works in coordination with other professionals and, in developing such guidelines and protocols, should draw upon the UNHCR 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, which recommend the following practices for handling gender-related asylum claims:

• Interview female asylum-seekers separately;
• Provide women asylum-seekers with information about and access to the asylum process, in a manner 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 during asylum interviews;
• Interviewers should make introductions, explain persons’ roles, making clear he or she is not a trauma counselor, explain the interview purpose and emphasize confidentiality;
• Interviewers should maintain a demeanor that is neutral, compassionate and objective with minimal interruptions;
• Interviewers should ask open-ended and specific questions, keeping in mind that female asylum applicants may not associate “honour”-related violence they are fleeing with questions about torture;
• Interviewers should be open to stopping and scheduling subsequent interviews should the claimants’ emotional needs require;
• Interviewers should allow for adequate preparation to build confidence and trust, as well as allow them to pose the right questions;
• Collect relevant information about the country of origin;
• Avoid allowing the claimant’s emotional state while recounting her experiences to influence credibility. Recognize that exact details of a rape or sexual assault may not be necessary, but focus on the events leading up to, and after, the act, the context and other details, and the possible motivation of the perpetrator;
• Provide referrals to psychosocial counseling and support services. Strive to make available psycho-social counselors prior to and following the interview.

(See: Sections on Domestic Violence, Sex Trafficking of Women and Girls, Female Genital Mutilation/Cutting, Forced and Child Marriage, and Harmful Practices)

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

• Violations of social mores, such as marrying outside of an arranged marriage, wearing lipstick or failing to comply with other 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 in their country of origin, and seeking asylum elsewhere may be their only means of escaping “honour”-based violence.  
• A woman’s claim may be based on persecution particular to her gender that may be analyzed and approved under one or more grounds. For example, rape, sexual abuse, domestic violence, infanticide, "honour"-based violence 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 five grounds enumerated under many asylum laws.
• 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: Gender-based Asylum Law in the United States, Stop VAW, the Advocates for Human Rights and Considerations for Asylum Officers Adjudicating Asylum Claims from Women, Memorandum to All INS Asylum Officers/HQASM Coordinators from Phyllis Coven, Office of International Affairs, May 26, 1995, p. 4)