Lecturer in Law, City University Law School
When I began researching Upper Tribunal (Immigration and Asylum Chamber) decisions, the issue of forced marriage was very much a live one. Several legislative and policy measures had been implemented, including the enactment of the Forced Marriage (Civil Protection) Act 2007 and the setting up of the Forced Marriage Unit in 2005, which was a joint Foreign and Commonwealth Office and Home Office initiative. At the same time, forced marriage had also become a vehicle for instituting restrictive migration policies domestically. Framed within the discourse of human rights, strong measures to deal with forced marriage seemed to have received widespread political support. The conservative government at the time, for example, criminalised forced marriage through the Anti-Social Behaviour, Crime and Policing Act 2014, Part 10 ss. 121 and 122 (s 120 created an offence of breaching a forced marriage protection order). Interestingly, David Cameron’s announcement of criminalisation was made within a speech on immigration. Despite criticism from several women’s organisations, governmental policy seemed to draw upon a highly politicised connection between immigration control and women’s rights.
Forced marriage brought together several issues regarding gender, race and politics and I was interested in studying these issues as they appeared in the process of refugee determination. In this particular piece for Social & Legal Studies, I examined the ways in which adjudicators dealt with forced marriage and how they interpreted refugee law in practice. Many scholars have taken note of the challenges of the application of the 1951 Refugee Convention in relation to gender-based persecution claims. Feminists, for instance, have questioned the supposed gender neutrality of the refugee definition, drawing out its androcentric presumptions. Scholarship has noted that the original drafters of the Refugee Convention had in mind a single male exile, fleeing persecution by state agents for their public political activities. It was not thought at the time that a refugee could flee because of their sex/gender. After decades of feminist activism and scholarship, this is not the state of affairs anymore and the importance of gender is recognised. Yet, arguably there remains a need to challenge the persistence of gendered interpretations of the Refugee Convention.
The Refugee Convention defines a refugee as 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 (Article 1A). Conventionally, gender-based persecution claims have been (and remain so) characterised as coming under the particular social group ground and the political opinion ground has been less frequently used. In this article, I challenged the presumption that favoured the particular social group ground as the most appropriate one in the context of forced marriage. Furthermore, I enquired what it might tell us about the ways in which the Refugee Convention is interpreted in relation to women’s experiences.
The membership of a particular social group ground was advanced in all of the cases I had reviewed and three of the cases included this in combination with the political opinion ground. The particular social group remains the one with the least clarity resulting in differences in approaches to its application. This lack of clarity has significant consequences for women’s claims given that so many of the gender-based persecution claims are made in reference to particular social group. It has now become the default ground for gender-based persecution cases rendering it problematic in circumstances where the asylum claims could also be categorised as involving political opinion or at least a combination of the two grounds. Not only does the particular social group ground come with its challenges, such as concerns over floodgates, or the differences in approaches developed in different jurisdictions. Its use as a default categorisation in gender-based persecution cases reveals an important concern of the potential depolitisation of gender-based persecution. Relying solely on this ground can perpetuate the construction of women and their experiences as social and cultural and as such as apolitical.
I drew upon feminist scholarship to critique characterisation of resistance of gendered forms of persecution as private and personal rather than political. What counts as political opinion is subject to gendered interpretation of what political means. It seemed from the framing of the adjudicators rejections of engaging with the political opinion in this context that it remained difficult for the adjudicators to recognise the resistance of asylum seeker women as political. This was so even in circumstances where it was identified as such by the local political power structures of the community or by agents of the state. Women’s experiences remained stubbornly confined to the so-called ‘private’ sphere. A view that perpetuates construing women as victims of their social or cultural circumstances and therefore out of the supposed purview of the political opinion ground.
The narrow and restricted interpretation of political opinion and the particular ways in which gender-based persecution continue to be framed remains open to feminist critique. There is a need to maintain critique of these persistent gendered interpretations and their potential consequences for understanding and categorising women’s experiences within refugee determination systems. It was my hope with this article therefore to add to the existing scholarship calling for more gender-sensitive interpretations of the Refugee Convention.
Nora’s paper is free-to-access for a limited time (correct at 08.11.2017) at the link below.
Nora Honkala is the author of ‘She, of course, holds no political opinions’: Gendered Political Opinion Ground in Women’s Forced Marriage Asylum Claims’ (2017) 26 (2) Social & Legal Studies 166-187. Nora is a Lecturer in Law at City, University of London, and her research interests are in socio-legal studies and feminist approaches to international law, particularly gender and refugee law.