In many cultures around the world, women and girls are still completely subservient to men, to the point where forced marriage and pregnancy are still highly prevalent, and women can be divorced or killed on the mere word of a man.
Can a woman from one of these cultures successfully claim asylum in a western (EU, US et al) nation on that basis?
To be a refugee (a necessary prerequisite to claiming asylum) you must meet the UN definition as incorporated in the host country’s domestic law:
a person who:
- has a ‘well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’;
- ‘is outside the country of [their] nationality’; and
- is unable or, owing to such fear, is unwilling to avail [themselves] of the protection of that country’.
It is important to note that “gender” is not one of the 5 grounds enumerated.
However, while the definition is from the UN, the “the right of asylum is a right of States, not of the individual” or the UN. That is, each state decides who does and does not fall within one of the 5 categories even if their home state might not decide that way.
This article discusses that “woman” (or a subset of “woman” e.g. divorced woman, transitioned woman etc.) could fit one of the categories - usually the “social group” or “religion” or “race”. It also mentions that common law jurisdictions have divergent approaches:
- Australian courts have adopted a ‘social perception’ approach which examines whether a group shares a common characteristic which sets it apart from society at large.
- In contrast, the jurisprudence in Canada, United Kingdom and USA has emphasised the ‘protected characteristics’ approach, which considers whether a group is united by an immutable characteristic or by a characteristic so ‘fundamental to human dignity that a person should not be compelled to forsake it’.
To add specific examples to what Dale M pointed out about the "immutable characteristics […] 'fundamental to human dignity", a report by the Tahirir Justice Center, in what appears to be a recurring issue, published in the same month of this question, entitled "Tahirih Explains: Gender-Based Asylum" discusses multiple BIA decisions, binding on the USCIS and Immigration Courts, and affirmed, that being a woman is a particular social group, and persecution is recognized as such against members thereof; alas, challenged constantly in the center of changing administrative policies.
The following are they:
In 1985, in Matter of Acosta, the U.S. Board of Immigration Appeals (BIA) explained that the “particular social group” ground for asylum protects individuals persecuted on account of a fundamental characteristic, including one’s sex.
"In 1996, in Matter of Kasinga, the BIA granted asylum to a young woman fleeing female genital mutilation/cutting and forced marriage, recognizing that her persecution was partly motivated by her gender. The precedent set by Kasinga seemed to pave the way for those fleeing other types of gender-based violence.
But in 1999, in Matter of R-A-, the BIA denied asylum to Rodi Alvarado, a woman who had escaped severe domestic violence. This new precedent bred uncertainty, and cases involving gender-based persecution were decided inconsistently across the country. Realizing the need for a nationwide clarification that domestic violence victims could be granted asylum protections, then-Attorney General Janet Reno voided the decision in Matter of R-A- and called for federal regulations settling the debate. While the regulations were never issued, a decade of litigation and advocacy finally resulted in the BIA reversing course and granting asylum to Ms. Alvarado in 2009.
Unfortunately, without regulations prescribing a clear path to protection for survivors of domestic violence, immigration judges and other officials continued to issue inconsistent decisions. Many of them remained confused about the state of the law, the dynamics of abuse, and the role of government in condoning, allowing, and even perpetuating domestic violence. As a result, many individuals were wrongly denied protection, incorrectly decided cases went through time and resource intensive appeals, and the legal landscape became increasingly complex and difficult to navigate. Finally, in 2014 the BIA clarified the situation when it ruled in Matter of A-R-C-G- that domestic violence was broadly a form of persecution for which asylum could be granted. This positive development did not last long, however, as the precedent set by A-R-C-G- was revoked by then-Attorney General Jeff Sessions in 2018’s Matter of A-B-. The decision clearly attempted to undo decades of legal advocacy, but contained profound legal flaws and is being challenged in legal cases around the country."
