Gender-Based Asylum

Last updated January 2010

Asylum is intended to provide safe refuge for people who have come under persecution in their home country.  Discrimination and violence have forced women from all over the world to seek asylum in a receiving host country.  Most receiving countries follow a variation of the procedures and definitions set out by the United Nations High Commission on Refugees (UNHCR).  Asylum can only be granted to people already in the receiving host country and who can show that they are unable or unwilling to return to their home country due to a well-founded fear of persecution.  Asylum applications are then reviewed by adjudicators (through application forms such as Form I-589 in the United States) or heard before immigration courts.  The adjudicators and judges have the right to grant or deny an asylum claim based on that country’s legislation or regulations regarding acceptable grounds for asylum, often using their own discretion as to whether a particular case meets the necessary conditions.

Gender-based asylum refers to asylum applicants who have been persecuted for reasons directing relating to their gender.  This may result from gender-discriminatory laws in their home country or from culturally accepted forms of violence against women, such as domestic abuse, female genital mutilation (FGM), or honor killings, which women may not be able to seek protection from by appealing to their home country governments.

Applying for asylum based on gender-related persecution is not an easy process, but it remains a viable option for women who are not currently protected by their home country governments.  Being approved for asylum means the woman can remain in the host country without fear of removal or deportation, thereby providing an escape from her persecutors and allowing her to start a new life in the host country.

Receiving Asylum
The 1951 UN Convention Concerning the Status of Refugees (PDF, 68 pages) which is the authoritative basis for most countries’ refugee and asylum practices, detailed five (5) acceptable grounds for asylum.  These five grounds are a “well-founded fear of being persecuted” due to:

  • Race,
  • Religion,
  • Nationality,
  • Political Opinion, and
  • Membership in a Particular Social Group.

UN guidance traditionally required asylum claims to relate to only to these Convention grounds.  In 2002, the UNHCR issued guidelines on gender-related persecution (PDF, 10 pages) within the context of the 1951 Convention.  These guidelines urge asylum-grantors to adopt a “gender-sensitive interpretation” of the five grounds, although gender alone is insufficient to qualify as a ground for fear of persecution.  The guidelines require that “the Convention ground must be a relevant contributing factor, though it need not be shown to be the sole or dominant cause.”  Gender-based asylum cases must show how the persecution experienced was related to one of the grounds listed above, though in a gender-specific context.  For many gender-based asylum cases, the appropriate ground is not always clear, and often times the persecution may fall under a combination of categories.  While gender-based asylum claims often argue for asylum on the grounds of persecution due to “Membership in a Particular Social Group,” many other gender-based asylum claims have been granted under on the grounds of religion or political views. Some examples of this are:

  • A feminist activist may apply for gender-based asylum on the grounds of political opinion
  • A woman refusing to adhere to Islamic law code regarding social behaviors for women may apply for gender-based asylum on the grounds of religion

As “Membership in a Particular Social Group” is a commonly used category, as well as the least concrete category, it is useful to further examine this particular ground.  In general, the category of “Membership in a Particular Social Group” is viewed as an inclusive category, intended to provide protection from persecution for those not explicitly falling under one of the other categories.  The use of the social group category has included a substantial number of cases which define social groups on gender or sexuality, such as “Gay Men in Pakistan” or “Victims of FGM in Somalia.” 

Many countries, however, have mixed precedent on attempts to use the category of “Membership in a Particular Social Group” for gender-based claims.  Some adjudicators have denied cases on the basis that the category of “Women in Country X” is too broad, since not all women in that country experience persecution.  Many people also fear that the use of broad membership categories would open the flood gates of asylum applicants, as all women from that country could in theory apply for asylum.  While this “flood-gate” theory has shown to be unsubstantiated in actuality, many courts and anti-immigration advocates continue to use it as justification for narrow asylum definitions.

Other applicants have tried applying for gender-based asylum under more narrowly defined social groups, such as “Female Victims of Domestic Abuse in Ecuador,” only to be denied on the basis that the members of this group do not share enough immutable characteristics.  In the United States, when assessing cases based on a narrowly defined social group, many courts have turned to recent decisions by the Board of Immigration Appeals (significant cases include Matter of Acosta(PDF, 22 pages), Matter of Kasinga (PDF, 22 pages), Matter of R-A-  (PDF, 41 pages), and Matter of L-R).  The characteristics of a social group as defined in these case decisions are:
  • That a social group could be defined in reference to an immutable or fundamental characteristic that “either is beyond the power of the individual members of the group to change or is so fundamental to their identities or consciences that it ought not be required to be changed” (Acosta)
  • The members of the social group “understand their own affiliation with the grouping, as do other persons within the particular society” (R-A-)
  • The harm suffered is itself an important social attribute (R-A-)
  • In the absence of other group characteristics, gender can be the central element of the social group definition (Kasinga)
The guidelines for gender-based asylum eligibility are frequently changing. For example, in 2009, the United States government submitted a brief in the Matter of L-R- which appears to introduce a new openness to allowing asylum for foreign victims of domestic abuse. The policy laid out in this brief may enable victims of domestic violence to gain asylum in the United States by recognizing victims of domestic abuse in a particular country as a viable social group for purposes of the UN “Membership in a Particular Social Group” asylum category. For more information on the Matter of L-R- and its implications for US asylum policies, please see the United States Law and Policy section of this website and USA: New Policy Gives Foreign Victims of Domestic Abuse Access to Asylum.
For a further discussion on the current issues and challenges facing gender-based asylum applicants, please see "Women and Girls Facing Gender-Based Violence and Asylum Jurisprudence" by Irena Lieberman and "Gender-Based Asylum: An Analysis of Recent Trends" by Karen Musalo and Stephen Knight. (PDF, 11 pages)


What Qualifies as Gender-Based Persecution?

An important distinction which must be made in gender-based asylum claims is the difference between personal harm and persecution.  Often these two forms of injury look very similar, but if a judge or adjudicator determines that the harm was solely personal, the asylum claim will not be granted.  Many types of gender-based persecution, such as domestic violence, honor killing, or rape in conflict, have often been seen as a personal or domestic issue, and the victim is seen as someone who was simply an unlucky victim of ordinary crime.  The distinction between ordinary crime and persecution hinges on being able to show both that the crime was part of a larger attitude towards women and that the home country government is not taking reasonable measures to ensure that this type of crime is prevented or punished.  These conditions are often shown by the following general types of discrimination against women, which are a breeding ground for the persecution of women.  The following are some examples of country conditions which may show that gender-based violence was persecution and not personal or random in nature:

  • The denial of equal status under the law to women;
  • The purposeful lack of state protection or refusal of state police or judicial authorizes to get involved in “domestic matters” that involve abuse, rape, torture or other severe harm;
  • Certain traditional practices which women are forced to undergo despite objections (including FGM, forced marriage, and polygamy); and
  • The denial of fundamental human rights and freedom to women, and/or the infliction of severe punishment on women for transgressing fundamentally discriminatory social norms.

From: The Center for Gender and Refugee Studies (CGRS), Hastings College of Law. 

Certain types of violence have been labeled as “gender-based”.  While asylum cases have been approved in each of the following categories, victims of these crimes are not guaranteed asylum, as many victims in these categories have also been denied asylum in cases where the judge believed the harm was personal or random, or where the judge believed that the home country was able and willing to provide protection for the victim, either by having her relocate within the country or by punishing her persecutors.  Asylum claims involving the following types of persecution are generally considered gender-based:

  • Coercive Population Control,
  • Women’s Rights Activist,
  • Domestic Violence,
  • Female Genital Mutilation (FGM),
  • Forced Marriage/Polygamy,
  • Lesbian/Gay/Bisexual/Transsexual (LGBT),
  • Honor Killing,
  • Trafficking / Prostitution,
  • Rape / Sexual Violence,
  • Repressive Social Mores, and
  • Sexual Slavery.

For specific information on case precedent for asylum claims in the United States based on FGM and Domestic Violence, please visit the United States Law and Policy section of this website

The Role of Non-State Agents
A significant challenge to gender-based asylum claims results from the fact that most gender-based persecution occurs in private settings, such as the home, and is instigated by non-state agents (private citizens who are not acting under direct government orders). Under the UN asylum guidelines established at the 1951 Convention Relating to the Status of Refugees, asylum has historically been understood to apply to state-sanctioned violence and persecution.  Therefore, violence that is committed against women by non-state agents, such as the woman’s family, without the explicit knowledge or outright approval of the government has often been viewed as an illegitimate ground for asylum.  Many countries, including Canada, the United States, and the United Kingdom, have established significant case precedent and national adjudication guidance regarding non-state agents as legitimate sources of persecution.  Other countries, including Switzerland, Germany and Portugal, have been reluctant to grant asylum in any cases where is cannot be shown that the state was directly involved in condoning or ordering the persecution.

The United Nations High Commissioner for Refugees (UNHCR) has recommended that all countries recognize non-state agents as legitimate sources of persecution, as women fleeing persecution have been unable to obtain state protection because the state is either unwilling or unable to provide it.  The lack of state protection may be evidenced by the absence or insufficiency of legislature (no laws prohibiting these crimes or unreasonably light penalties for convictions), or by a demonstrated lack of enforcement of the existing legislature by government authorities, including local police.  Countries not currently adhering to this guidance should be urged to recognize non-state agents as viable sources of persecution and to incorporate this understanding into their asylum guidance for gender-based cases.