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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?

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Maybe

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:

  1. has a ‘well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’;
  1. ‘is outside the country of [their] nationality’; and
  1. 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’.
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