Domestic violence asylum claims and recent developments in international human rights law: A progress narrative?

International and Comparative Law Quarterly

Volumn 60, Issue 2, 2011, Pages 459-484

  Mullally, Siobhán ^a  

^a UNIVERSITY COLLEGE CORK   (Ireland)

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[No Author keywords available]

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EID: 79959308036     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1017/S0020589311000042     Document Type: Article

References (137)

1. See CEDAW General Recommendation No. 19, 'Violence Against Women' (11th Session) (1992) UN Doc A/47/38, para 9.
2. Jessica Gonzales v United States, Petition No. 1490-05, Inter-American Court of Human Rights, Rep No. 52/07, OEA/Ser.L./V/II.128, Doc 19 (2007) [Admissibility Decision].
3. For the US Supreme Court decision that preceded the petition to the Inter-American Commission, see: Town of Castle Rock v Gonzales, 545 US 748, 768 (2005).
4. For commentary see: C Bettinger-Lopez, 'Jessica Gozalez v United States: An Emerging Model for Domestic Violence & Human Rights Advocacy in the United States' (2008) 21 Harvard Human Rights Journal 183.
5. Opuz v Turkey, Application No. 33401/02, Judgment of 9 June 2009.
6. MG Heyman, 'Domestic Violence and Asylum: Toward a Working Model of Affirmative State Obligations' (2005) 17 Int J Refugee Law 729;
7. D Anker, 'Refugee Status and Violence against Women in the Domestic Sphere: The Non-State Actor Question Selected Papers at the October, 2000 Conference of the International Association of Refugee Law Judges at Bern, Switzerland' (2000) 15 Geo Immigr LJ 391;
8. A Macklin, 'Cross-Border Shopping for Ideas: A Critical Review of United States, Canadian, and Australian Approaches to Gender-Related Asylum Claims' (1998) 13 Geo Immigr LJ 25;
9. H Crawley, Refugees and Gender: Law and Process (Jordan, Bristol 2001);
10. H Crawley,'Comparative analysis of gender-related persecution in national asylum legislation and practice in Europe' (Evaluation and Policy Analysis Unit, UNHCR, Geneva 2004).
11. See: Office of the UNHCR, Ex Com Conclusion No. 39 (XXXVI) 'Refugee Women and International Protection' (1985);
12. Guidelines on International Protection: Gender-related persecution within the context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees (7 May 2002) UN Doc HCR/GIP/02/01. At national level.
13. The Canadian Immigration and Refugee Board (IRB) has issued an updated Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution (13 November 1996)
14. as well as a Compendium of Decisions: Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update (February 2003);
15. UK Immigration Appellate Authority, Asylum Gender Guidelines (2000)
16. Asylum Policy Instruction: Gender Issues in the Asylum Claim (October 2006);
17. US Department of Justice, Considerations for Asylum Officers Adjudicating Asylum Claims From Women, memorandum from Phyllis Coven, Office of International Affairs (May 26, 1995).
18. Opuz v Turkey (n 3) para 132.
19. See, in particular, art 6(c), Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons who otherwise need International Protection and the Content of the Protection Granted, OJ L304, 30/09/2004 paras 12-23.
20. T Inlender, 'Status Quo or Sixth Ground?: Adjudicating Gender Asylum Claims' in SBaJ Resnik (ed), Migration and Mobilities: Citizenship, Borders and Gender (NYU Press, New York, 2009).
21. Guidelines on International Protection No. 1: Gender-Related Persecution within the ontext of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees (HCR/GIP/02/01).
22. On the jurisprudence of the Optional Protocol, see: A Byrnes and E Bath, 'Violence against Women, the Obligation of Due Diligence, and the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women: Recent Developments' (2008) 8 Human Rights Law Review 517.
23. See generally R Adams, 'Violence Against Women and International Law: The Fundamental Right to State Protection from Domestic Violence' (2007) 20 NY Int'l L Rev 57, 104-129.
24. Velasquez Rodrýguez v Honduras Inter-American Court of Human Rights Series C No. 4 (29 July 1988), 30; 'An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of an act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention.' Para 172. See (n 1).
25. Declaration on the Elimination of Violence against Women, GA Res. 48/104, (20 December 1993) UN Doc A/RES/48/104, art 4.
26. UN Committee on the Elimination of All Forms of Discrimination Against Women, General Recommendation 21, 'Equality in Marriage and Family Relations' (13th Session) UN Doc A/47/38.
27. UN Committee on the Elimination of All Forms of Discrimination Against Women, General Recommendation No. 26 on women migrant workers, (5 December 2008) UN Doc EDAW/C/ 2009/WP.1/R, paras 19-20.
28. Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women, (1999) 2131 UNTS 83.
29. Ms A T v Hungary (Views adopted on 26 January 2005, 32nd Session), UN Doc A/60/38 (Part I). Notably, the Committee deemed the claim as admissible, although most of the incidents in question had pre-dated the entry into force of the Optional Protocol in Hungary. Nonetheless, they formed part of a continuing pattern of alleged failing of state protection and culpable inaction on the part of the State, from 1998 to the time of the Committee's decision. The Committee noted that there was in this case a continuing grievance; para 8.5.
30. See UN Doc CEDAW/C/TUR/4-5 and Corr.1, (15 February 2005) para 28.
31. Yildirim v Austria (2005) UN Doc CEDAW/C/39/D/6/2005.
32. Goekce v Austria (2005) UN Doc CEDAW/C/39/D/5/2005.
33. This term is borrowed from: CG Oxford, 'Protectors and Victims in the Gender Regime of Asylum' (2005) 17 National Women's Studies Association Journal: Special Issue: States of Insecurity and the Gendered Politics of Fear Contents 18-38.
34. UN Commission on Human Rights, 'Elimination of Violence Against Women' Resolution 2003/45, UN Doc E/CN.4/2003/L.11/Add.4.
35. Special Rapporteur on Violence Against Women, Third Report (20 January 2006) presented to the UN Commission on Human Rights (UN Doc E/CN.4/2006/61).
36. See Report of the UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (15 January 2008) UN Doc A/HRC/7/3.
37. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, General Recommendation No. 2, CAT/C/GC/2 (24 January 2008), paras 17 and 22.
38. General Comment No. 28, on the Equality of Rights between Men and Women (art 3), (29 March 2000), CCPR/C/21/Rev1/.
39. UN Committee on Economic, Social and Cultural Rights, General Comment No. 16 (2005), The equal right of men and women to the enjoyment of all economic, social and cultural rights, art 3 of the International Covenant on Economic, Social and Cultural Rights, UN Doc E/C.12/2005/4, para 27.
40. UN Committee on the Rights of the Child, General Comment No. 12 (2009), 'The right of the child to be heard' UN Doc CRC/C/GC/12, para 32.
41. General Recommendation XXV, Gender Related Dimensions of Racial Discrimination, (Fifty-sixth session, 2000) UN Doc A/55/18, annex V, para 2.
42. See Committee on the Elimination of Racial Discrimination, Concluding Observations, CERD/C/USA/CO/6, (2008), para 26.
43. Protocol to the African Charter on Human and People's Rights on the Rights of Women in Africa, adopted 11 July, 2003, art 4.
44. Adopted by the Organisation of American States (OAS) and entered into force on 5 March 1995.
45. Case 12.051, Rep No. 54/01, Inter-American Court of Human Rights, Annual Report 2000, OEA/Ser.L/V.II.111 Doc.20 rev (2000).
46. See (n 2). A final decision on the merits is expected by summer 2011. For further details on the timeline of the case, see American Civil Liberties Union at: http://www.aclu.org/human- rights-womens-rights/jessica-gonzales-v-usa, accessed March 23 2011.
47. See generally: American Declaration of the Rights and Duties of Man, OAS Res. XXX, International Conference of American States, 9th Conference, OEA/Ser.L/V/I.4 Rev. XX (May 2, 1948); Charter of the Organization of American States (30 April 1948) 119 UNTS 3 (entered into force December 13, 1951); Statute of the Inter-American Commission on Human Rights, art 1(2)(b). The admissibility of the petition was challenged by the US Government, on the ground that the American Declaration did not include any provision imposing obligations of enforcement or due diligence with respect to the rights specified therein. These arguments were rejected by the Commission (n 2): art 20 of the Statute of the IACHR provides that, in respect to those OAS Member States that are not parties to the American Convention on Human Rights, the Commission may examine communications submitted to it and any other available information, to address the government of such states for information deemed pertinent by the Commission, and to make recommendations to such states, when it finds this appropriate in order to bring about more effective observance of fundamental human rights.
48. See also the Organization of American States, arts 3, 16, 51, 112, 150;
49. Regulations of the Inter-American Commission on Human Rights, arts 26, 51-54;
50. I/A. Court H.R., Advisory Opinion OC-10/8 'Interpretation of the Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights,' (14 July 14, 1989, Series A Nx 10 (1989), paras 35-35;
51. Inter-American Commission of Human Rights, James Terry Roach and Jay Pinkerton v United States, Case 9647, Res. 3/87, (22 September 1987) Annual Report 1986-87, paras 46-49.
52. See Petition Alleging Violations of the Human Rights of Jessica Gonzales by the United States of America and the State of Colorado, with request for an investigation and hearing on the merits, submitted 23 December 2005, Petition No. P-1490-05, 33.
53. Jessica Gonzales v United States of America-Amicus Briefs Submitted for October 2008 Merits Hearing, available at: http://www.aclu.org/human-rights- womens-rights/jessica-gonzales-v-usa, accessed on March 23 2011.
54. Gonzales v USA: Post-Hearing Brief, Observations & Responses Concerning the 22 October 2008, Hearing Before the Commission (2 March 2009) 19, available at: http://www.aclu.org/human-rights-womens-rights/jessica-gonzales- v-usa, accessed 23 March 2011.
55. See Weave Amicus Brief, (n 12) 9;
56. see also Callie Marie Rennison, Bureau of Justice Statistics, US Dept of Justice, Intimate Partner Violence, 1993-2001 (2003), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/ipv01.pdf.
57. cited in Gonzales v USA: Post-Hearing Brief, (n 54).
58. Inter-American Court of Human Rights, Case of González et al '(Cotton Field') v Mexico, Judgment of 16 November 2009 (Preliminary Objection, Merits, Reparations, and Costs), avail able at: http://www.corteidh.or.cr/docs/ casos/articulos/seriec-205-ing.doc.
59. See: Expert Testimony of Professor Rhonda Copelon, Profferred by the Inter-American Commission on Human Rights, Santiago, Chile, April 28 2009, available at: http://ccrjustice.org/files/Rhonda%20Copelon%20declaration.doc.
60. See: Council of Europe Committee of Ministers, Recommendation of the Committee of Ministers to Member States on the Protection of Women Against Violence, (30 April 2002) 5;
61. and Council of Europe Parliamentary Assembly, Recommendation 1847 Combating Violence Against Women: Towards a Council of Europe Convention (3 October 2008). Rec 1847 (2008).
62. See UN Doc CEDAW/C/TUR/4-5 and Corr.1, 15 February 2005.
63. See: X and Y v the Netherlands A 91 (1985); 8 EHRR 235;
64. SW & CR v United Kingdom A 335-C (1995);
65. 21 EHRR 363; Aydin v Turkey 1997-VI;
66. 25 EHRR 251;
67. E v United Kingdom 36 EHRR 31;
68. MC v Bulgaria 2003-XII; 40 EHRR 20;
69. Bevacqua and S v Bulgaria Application No. 71127/01, Judgment of 12 June 2008;
70. and Maslova v Russia 48 EHRR 37.
71. For commentary see: P Londono, 'Developing Human Rights Principles in Cases of Gender-based Violence: Opuz v Turkey in the European Court of Human Rights' (2009) 9 Human Rights Law Review 657;
72. C McGlynn, 'Rape, Torture and the European Convention on Human Rights' [2009] 58 ICLQ 565.
73. A Edwards Violence Against Women under International Human Rights Law (CUP, Cambridge, 2010) 195.
74. Application No. 23505/09, European Court of Human Rights, (20 July 2010) para 53.
75. UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, (July 2009) Rev, available at: http://www.unhcr.org/refworld/docid/4a6477ef2.html, accessed 14 November 2010.
76. See: K Musalso, 'Matter of R-A: An Analysis of the Decision and its Implications' 76 Interpreter Releases 1177 (9 August 1999). Documentation and commentary in relation the case are available at the Centre for Gender and Refugee Studies, Hastings College of Law: http://cgrs. uchastings.edu/campaigns/ alvarado.php, accessed on 21 March 2010.
77. See: Harvard Immigration and Refugee Project, Brief of Amici Curiae in Support of Affirmance of Decision of the Immigration Judge in Re R-A-A73-753-922, available at: http://cgrs.uchastings.edu/campaigns/alvarado. php#advocacy, accessed on March 23 2011.
78. See: UNHCR, Re: Matter of Rodi Alvarado Peña (A73-753-922), Advisory Opinion on International Norms: Gender-Related Persecution and Relevance to 'Membership of a Particular Social Group' and 'Political Opinion' (9 January 2004) 3, available at: http://cgrs.uchastings.edu/campaigns/alvarado. php#advocacy, accessed on March 23 2011.
79. See Matter of R-A (n 76) 923.
80. Islam (AP) v Secretary of State for the Home Department Regina v Immigration Appeal Tribunal and Another Ex Parte Shah (AP) (Conjoined Appeals) [1999] 2 AC 629, [1999] 2 All ER 545.
81. See Harvard Immigration and Refugee Project (n 76) 42.
82. See INS v Elias-Zacarias, 502 US, 483 (proof of motive can be direct or circumstantial);
83. Matter of S-P-, 21 I&N Dec. at 11-14 (examining circumstantial evidence of the social and political context of persecution in order to determine motive).
84. Cited in Harvard Immigration and Refugee Project, Amiculs Curiae Brief, (n 83) 8.
85. In the Matter of R-A (n 76) 925.
86. See: UNHCR Re: Matter of R-A, Advisory Opinion, (n 79) 8.
87. In re Kasinga, Interim Dec. 3278 (BIA 1996).
88. See A Macklin, 'Refugee Women and the Imperative of Categories' (1995) 17 Human Rights Quarterly 213, 247, making this argument in an analysis of the Canada's Immigration and Refugee Board 1993 guidelines: Women Refugee Claimants Fearing Gender-Related Persecution, Immigration and Refugee Board, Guidelines Issued by the Chairperson pursuant to section 65(3) of the Immigration Act, (1993).
89. See Attorney General Reno's order overturning the decision in Matter of R-A-(January 19, 2001), available at: http://cgrs.uchastings.edu/campaigns/ alvarado.php, accessed 21 March 2010
90. See also: Proposed Regulations on Gender/social group-Asylum and Witholding Definitions, Department of Justice, Immigration and Naturalization Service, 65 Fed. Reg. 76588-98 (Dec 7, 2000).
91. JD Whitley, Department of Homeland Security General Counsel et al, 'US Department of Homeland Security's Position on Respondent's Eligibility for Relief (in re: Rodi Alvarado Peña, respondent).' File No.: A 73 753 922, San Francisco, (19 February 2004).
92. Attorney General Ashcroft's January 2005 order remanding Matter of R-A back to the BIA, available at: http://cgrs.uchastings.edu/campaigns/alvarado. php.
93. See Attorney General Mukasey's September 2008 order to the BIA to reconsider the case, removing the requirement that the BIA await the issuance of proposed regulations, available at: http://cgrs.uchastings.edu/campaigns/ alvarado.php.
94. Department of Homeland Security, Supplemental Briefing, In the Matter of L-R, submitted, (13 April 2009), available at: http://cgrs.uchastings.edu/pdfs/ Redacted%20DHS%20brief % 20on%20PSG.pdf, accessed 23 March 2011.
95. ibid 11-12, See commentary in New York Times: J Preston, 'New Policy Permits Asylum for Battered Women' (New York New York July 15, 2009) available at http://www.nytimes.com/2009/07/16/us/16asylum.html?-r=1.
96. See UNHCR, Guidelines on International Protection No. 2: 'Membership of a Particular Social group' within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees (HCR/GIP/02/02), adopted 7 May 2002.
97. See: H Storey, 'EU Refugee Qualification Directive: A Brave New World?' (2008) 20 International Journal of Refugee Law 1, 1-49;
98. H Lambert, 'The EU Asylum Qualification Directive, its Impact on the Jurisprudence of the United Kingdom and International Law' (2006) 55 ICLQ 1, 161-192. (Pubitemid 43203184)
99. See Documents and Information on Rodi Alvarado's Claim for Asylum in the US, Current Updates, available at: http://cgrs.uchastings.edu/campaigns/ alvarado.php, accessed 23 March 2011.
100. K Musalo, 'A Short History of Gender Asylum in the United States: Resistance and Ambivalence May Very Slowly be Inching Towards Recognition of Women's Claims' 29 2010 Refugee Survey Quarterly 46.
101. See generally MS Ciancarulo and C David, 'Pulling the Trigger: Separation Violence as a Basis of Refugee Protection for Battered Women' (2009) 59 American University Law Review 2, 337-384.
102. K Engle, 'Female Subjects of Public International Law: Human Rights and the Exotic Other Female' (1992) 26 New England Law Review 1509.
103. See also In re D-K-, slip. op. at 4 (EOIR Immigr. Ct. Dec. 8, 1998), available at http://www.uchastings.edu/cgrs/law/ij/117.html, (accessed on March 23 2011)
104. and discussed in: L Nessell ' "Willful Blindness" to Gender-Based Violence Abroad: United States' Implementation of Article Three of the United Nations Convention Against Torture' (2004) 89 Minn LR 1, 71-162.
105. See A Edwards, Violence Against Women Under International Human Rights Law (CUP, Cambridge, 2010) 192.
106. Minister for Immigration & Multicultural Affairs v Khawar [2000] FCA 1130, per Lindgren J, para 160.
107. CRDD No. U92-06668 No. U92-06668, Smith, Daya, (19 February 1993).
108. Refugee Appeal No. 71427/99 (NZ) [2000] INLR 608.
109. SSHD v K and Fornah v SSHD [2006] UKHL 46, [2007] 1 AC 412, [2007] 1 All ER 671, [2006] 3 WLR 733.
110. R Kapur, 'The Tragedy of Victimzation Rhetoric: Resurrecting the "Native" Subject in International/Post-Colonial Feminist Legal Politics' 15 Harvard Human Rights Journal.
111. See SM Akram, 'Orientalism Revisited in Asylum and Refugee Claims' (2000) 12 Int J Refugee Law 7.
112. See ZH (Women as Particular Social Group) Iran CG [2003] UKIAT 00207, in which women in Iran were found not to constitute a social group.
113. See Macklin (n 90) 263-264.
114. See also: D McGoldrick, 'Accommodating Muslims in Europe: From Adopting Sharia Law to Religiously Based Opt Outs from Generally Applicable Laws' (2009) 9 Human Rights Law Review 603.
115. See A Sinha, 'Domestic violence and US asylum law: eliminating the "cultural hook" for claims involving gender-related persecution' (2001) 7 NYU L Rev 6, 1562-1598. (Pubitemid 33357713)
116. See C Dauvergne and J Millbank, 'Forced Marriage as a Harm in Domestic and International Law' (2010) 73 Modern Law Review 57, discussing such 'racial othering' in the context of forced marriage asylum claims.
117. S Razack, ̀Dangerous Muslim Men, Imperiled Muslim Women and Civilized Europeans: Legal and Social Response to Forced Marriages.' (2008) 12 Feminist Legal Studies 2, 129-174. (Pubitemid 39289777)
118. See (n 129).
119. See G Goodwin-Gill, 'The Politics of Refugee Protection' (2008) 27 Refugee Survey Quarterly 8.
120. MK (Lesbians) Albania CG [2009] UKAIT 00036 (9 September 2009).
121. See: IM (Albania) CG [2003] UKIAT 00067 and DM Albania CG [2004] UKIAT 00059.
122. See: AB (Jamaica) v Secretary of State for the Home Department [2008] EWCA Civ 784 (02 April 2008);
123. FS (domestic violence, SN and HM, OGN) Pakistan CG [2006] UKAIT 00023 (13 March 2006);
124. SN & HM (Divorced women, risk on return) Pakistan CG [2004] UKIAT 00283 (25 May 2004).
125. UNHCR, Guidelines on International Protection: 'Internal Flight or Relocation Alternative' in the Context of Article 1A(2) of the 1951 Convention and/or Protocol Relating to the Status of Refugees' (23 July 2003) UN Doc HC/GIP/O3/04.
126. Robinson [1997] EWCA Civ 2089, AE and FE [2002] UKIAT 036361. In the context of internal relocation and the protection against refoulement afforded by art 3 ECHR, see Salah Sheekh v the Netherlands (11 January 2007).
127. C Bennett, Relocation, Relocation: The impact of Internal Relocation on Women Asylum Seekers, (Asylum Aid, UK, 2008) available at: www.asylumaid.org.uk/ ./Relocation- Relocation-research-report.pdf, accessed 23 March 2011.
128. SN & HM (Divorced women, risk on return) Pakistan CG [2004] UKIAT 00283 (25 May 2004)
129. See also KA and Others (domestic violence risk on return) Pakistan CG [2010] UKUT 216 (IAC), confirming that the guidance given in SN & HM remained valid.
130. See Human Rights Watch (2010) (n 151).
131. Asylum Aid Unsustainable: the quality of initial decision-making in women's asylum claims (Asylum Aid: January 2011, London, UK), available at: http://www.asylumaid.org.uk/pages/.html, accessed on March 23 2011.
132. See H Baillot, S Cowan and VE Munro, 'Seen But Not Heard? Parallels and Dissonances in the Treatment of Rape Narratives Across the Asylum and Criminal Justice Contexts' (2009) 36 Journal of Law and Society 2, 195-219, discuss a range of measures designed to facilitate and support disclosure of rape within the criminal justice process.
133. AS (Pakistan) v Secretary of State for the Home Department [2007] EWCA Civ 703 (21 June 2007), involving a domestic violence claim, in which it was found that inconsistencies in the applicant's testimony can lead to a finding of lack of credibility.
134. See MD (Guinea) v Secretary of State for the Home Department [2009] EWCA Civ 733 (17 June 2009), in which a 17-year-old, fleeing domestic abuse, was denied asylum because of a lack of credibility.
135. J Bhabha, 'Arendt's Children: Do Today's Migrant Children Have a Right to Have Rights?' (2009) 31 Human Rights Quarterly 410.
136. See Human Rights Watch, Fast-Tracked Unfairness: Detention and Denial of Women Asylum Seekers in the UK (23 February 2010) available at http://www.hrw.org/node/88671, accessed 21 March 2010, 7.
137. On an international law of everyday life, see H Charlesworth, 'International Law: A Discipline of Crisis' (2002) 65 Modern Law Review 377.