AI – 63/08 - INSTRUCTIONS: GUIDELINES ON GENDER-RELATED PERSECUTION

Norwegian Directorate of Immigration

 

No.                                 Our ref.                                    Date
AI – 63/08                      200701566                               01.10.2008

 

AI – 63/08 - INSTRUCTIONS: GUIDELINES ON GENDER-RELATED PERSECUTION

1. Introduction

The Ministry of Labour and Social Inclusion refers to section 38, first paragraph, of the Immigration Act, pursuant to which the Ministry may instruct the Norwegian Directorate of Immigration concerning general interpretation of the law and concerning general questions relating to the exercise of discretionary powers.

In recent years, increasing public attention has been paid to gender-related claims in asylum applications. The main purpose of these guidelines is to provide an integrated and systematic review of the factors of refugee assessment and processing of asylum cases where gender-related issues may have significance, and to ensure that consideration is paid to these issues in dealing with such cases. The guidelines will also help to bring about uniform practice. The Ministry regards it as important to lay down these guidelines in written instructions to the Norwegian Directorate of Immigration with regard to providing both information and clarification. The guidelines address procedural considerations (cf. 2), the conditions of the UN Convention relating to the Status of Refugees (the Refugee Convention) and asylum assessment (cf. 3), the need for protection in other respects (cf. 4) and residence on humanitarian grounds (cf. 5).

In Proposition No. 75 to the Odelsting (2006-2007), the Government has submitted a proposal for a new Immigration Act. The Proposition emphasises the need for a specific gender perspective in refugee law assessments. It is proposed that a provision be included that persecution can take the form of acts “directed specifically against gender”. The Ministry does not propose the introduction of a separate provision concerning the gender perspective in connection with the refugee assessment in the proposal for the new Immigration Act, but proposes that separate guidelines be prepared on gender-related issues associated with refugee assessment.

A number of different concepts have been applied in defining the various aspects of an overall gender perspective in refugee law. Refugee law theory differentiates between gender-specific persecution and gender-based persecution. By preparing guidelines on gender-related persecution, the Ministry wishes to include both of these concepts. The term gender-specific persecution has been used in cases where the applicant’s biological gender has significance for how a person is persecuted, e.g. female genital mutilation. The term gender-based persecution has been used where the social gender has significance for why a person is persecuted, e.g. cases where a woman violates social expectations regarding dress, and thereby risk persecution. A gender-sensitive interpretation and application of the Refugee Convention involves an awareness that gender and/or the gender role may be a relevant factor. These concepts are merely auxiliary concepts with no direct legal effect.

The guidelines apply to both women and men. The guidelines also concern issues that may be relevant in relation to lesbian, gay, bisexual and trans persons.

The guidelines focus on issues specific to matters involving gender-related claims. We therefore stress that the guidelines must be viewed in relation to the general rules, including Norway’s international commitments. Of course, the guidelines in no way place limitations on these rules and commitments. Examples given in the various chapters are not intended to be exhaustive.

2. PROCEDURAL ISSUES

2.1. Preparing the case

A gender-sensitive approach must be adopted at all stages of the process.

Before the asylum interview takes place, all applicants shall be informed that gender-related claims may give a right to protection in Norway. The interview must be arranged in such a way that the applicant feels secure in providing information and any documentation, and that the applicant is aware that this will be dealt with in confidence.

Section 55 of the Immigration Regulations states that women shall be asked whether they wish the interviewer and/or interpreter to be a woman, and that such wishes and other special needs shall be complied with as far as practically possible. Attempts must be made to comply with this in relation to applicants of both sexes.

Asylum seekers over 18 years of age shall be interviewed separately, cf. section 55 of the Regulations. It must be ensured that this is also the case as regards spouses.

The interviewer must be particularly aware that persons who have been subjected to sexual abuse or other forms of violent abuse may have traumas, and that this may affect the way such persons behave and respond to questions during the interview. Some persons may also have a fear of persons in positions of authority or may fear reprisals, for example from their families.

2.2 Assessing and deciding the case

In principle, it is the applicant who is responsible for providing evidence of the probability of his or her claims as far as possible, whereas the authorities have the burden of proof that it is safe for applicants to be returned. It must therefore be possible to require an asylum seeker to provide sufficient information to support his or her grounds for asylum. At the same time, it follows from section 17 of the Public Administration Act that the administrative agency is obliged to ensure that the case is clarified as thoroughly as possible before any administrative decision is made. The administrative agency is also obliged to assess protection against return on its own initiative, cf. the travaux préparatoires (Proposition No. 46 to the Odelsting (1986-1987), page 87) and the international commitments of the Norwegian government in accordance with the non-refoulement principle. We refer otherwise to our comments in the final paragraph of 2.1.

Cases involving claims concerning gender-related persecution may present considerable verification problems. One often has only the applicant’s own information to base one’s assessments on. In very few cases is it possible to document previous abuse and the reason for these or the future risk of abuse.

In this type of case, it may be difficult to assess credibility and whether claims shall be deemed sufficiently proved to be taken into consideration. The matters concerned are often extremely personal, and circumstances such that many people would have difficulty in providing information about them to strangers. The Ministry stresses that a free evaluation shall be made of the facts of the case based on all available information. If the applicant has failed to present all relevant information at the first opportunity, has been reticent as regards details, has shown uncertainty during the asylum interview, etc., such circumstances shall not in themselves indicate that the testimony cannot be taken into consideration.

Gender-related claims must often be viewed in connection with the social and cultural conditions in the country concerned. Assessment of asylum applications involving persecution on grounds of gender or sexual orientation therefore require a thorough knowledge of the situation in the applicant’s country of origin, not least as regards attitudes to gender roles and sexual orientation, persons who are particularly exposed to abuse and the consequences that must generally be expected if a specific argument is taken into consideration. Knowledge of the country concerned is thus of major importance.

In matters involving claims concerning gender-related persecution, the perpetrator may in many cases be a close family member. When granting permits in such cases, a concrete assessment must be made as to whether conditions for the permit shall include limitations on family reunification.

3. THE ASYLUM ASSESSMENT

Both the Refugee Convention and the Immigration Act are basically gender neutral. However, it is clear that gender can influence both how the persecution takes place and the reason for the persecution. It is important to focus on the fact that certain forms of abuse and situations involving abuse more often affect women than men. In connection with other criteria in the refugee definition, a gender-sensitive interpretation may also be necessary. All the conditions of the refugee definition must however be met in order that the applicant shall be recognised as a refugee.
If the conditions for recognition as a refugee pursuant to the Refugee Convention are not met, it must be assessed whether the applicant is protected against return pursuant to other international commitments (cf. 4, below) or whether there are grounds for granting residence on strong humanitarian grounds or on the basis of a particular connection with Norway (cf. 5, below).

3.1 Persecution

Not all abuse can amount to persecution under the Refugee Convention. In order to be so designated, it is required that the abuse be of a certain seriousness and scope. Serious human rights violations will always be regarded as persecution.

Although a number of acts may not individually be regarded as persecution, their cumulative effect may nevertheless be such that they are deemed to constitute persecution.

The fact that certain types of abuse against women are widespread and culturally accepted in some communities is irrelevant to the question of whether the abuse in itself shall be regarded as persecution.

Several of the types of persecution referred to below may affect both sexes and are thus not gender-specific. On the other hand, the gender aspect is relevant in relation to the requirement of a causal relationship if the ground deriving from the Convention is “membership of a particular social group”, cf. 3.4. It may also be relevant with regard to assessment of consequences of opposing abuse.

The following types of persecution are not intended to constitute an exhaustive list:

As regards gender-related persecution, rape, forced sterilisation or abortion, female genital mutilation, bride burning and honour killing, all fall under the term.

Domestic abuse or violence may otherwise, like other violent abuse, constitute persecution depending on its seriousness and scope.

Forced marriage is characterised by one or both parties entering into marriage against his or her will as a result of coercion. This may involve active coercion by means of violence, threats of violence or other threats or that, as a result of family traditions or social or cultural conditions, one has no real possibility of opposing a marriage that one does not wish to enter into. Forced marriage must be distinguished from arranged marriage, where the applicant is under a certain social pressure from his or her family to enter into the marriage, and where he or she is able to oppose the marriage without serious consequences to himself/herself. Forced marriage is a serious form of abuse involving a gross violation of individual freedom. If the applicant has no possibility of opposing entry into the marriage without being subjected to serious consequences for his or her life, health or circumstances of life, i.e. consequences at the level of serious violation of basic human rights, this will constitute persecution. In concrete terms, the question will normally be whether the force exercised (the consequences of refusing) constitutes persecution. Cases of doubt may however arise where the applicant risks exclusion from his or her family and/or the social community in which the applicant lives.

Forced prostitution/human trafficking may, among others depending on the case concerned, involve abduction, confinement, rape, slavery, forced labour and abuse, which may basically constitute persecution. Moreover forced prostitutes may later be subjected to reprisals from ringleaders and discrimination and exclusion from their families and from society. In each case, concrete assessments must be made as to what the applicant risks and whether this can be characterised as persecution.

Discrimination, milder forms of harassment and lack of gender equality should not in themselves be regarded as persecution. A concrete assessment must be made of whether the total burden faced by an asylum seeker can be characterised as persecution. It is important to be aware that excessive punishment may also constitute persecution.

Social exclusion does not in itself constitute persecution. A concrete assessment must be made of the consequences of the exclusion, paying regard to among others the applicant’s individual situation and the conditions in the community the applicant comes from. The consequences of social exclusion may often be greater for women than for men.

Forcing someone to act in conflict with deeply felt convictions may constitute persecution, but must be assessed on the basis of the applicant’s situation in the case concerned. In principle, persons may be expected to a certain extent to adapt their conduct, dress, etc. to the social and cultural codices that apply. In some cases, where there is a risk of serious reactions if the applicant behaves in accordance with his or her ideals, adaptation would however involve such a strong violation of that person’s integrity that it might give rise to a need for protection. An example is the Fatin case from 1993 (Fatin v. INS, US Court of Appeals for the Third Circuit). In the case in question, which concerned an Iranian woman who applied for asylum on the basis that she on return to her country of origin did not wish to adhere to its norms regarding the wearing of a veil, the court found that the adaptation in this case would not constitute such a fundamental violation that it could be regarded as persecution.

3.2 Well-founded fear

Subjective fear may be relevant, but is not in itself sufficient to fulfil the Convention’s conditions concerning well-founded fear. The central issue is whether conditions exist to indicate that the fear is justified on the basis of an objective assessment. However, persons who are especially vulnerable may have a lower tolerance limit for when the consequences of a reaction must be characterised as persecution. Here, gender may play a role in combination with factors such as age, health and/or social network. The existence of a real risk of persecution must be assessed in the light of both general information concerning the country and the applicant’s individual conditions. Asylum assessment is in principle future-oriented. Previous abuse, e.g. rape, therefore does not in itself provide a basis for recognition as a refugee unless combined with a real danger of abuse in the future. Previous abuse may however indicate a risk of further abuse in the future, and may also have led to a justified strengthening of subjective fear, which must be regarded as relevant, especially if the assessment of the future risk of persecution otherwise gives grounds for doubt.

In cases where homosexuality is argued, the question of how an individual gay applicant may be expected to accommodate himself on a return to his country of origin would then have significance for the risk assessment viewed in relation to the socio-cultural limitations of the community concerned. In many communities, there are general social, cultural and statutory restrictions on expression in public for both heterosexual and homosexual persons without it being possible to characterise these restrictions as persecution. An assessment must therefore be made of the degree to which such restrictions limit individual self-expression and the risk that the persons concerned subject themselves to by violating restrictions that he or she cannot reasonably be expected to adapt to, cf. 3.1 on the concept of persecution.
 
The right to international protection is subsidiary to the possibility of protection in one’s country of origin. Not unless the country of origin’s authorities lack the capacity and/or the will (failure of the legal state) to provide protection may the applicant be deemed to have a well-founded fear of persecution. However, not every flaw in the authorities’ protection of its own citizens gives rise to a right to international protection. It can be demanded that the state has a functioning system at a certain level (police and legal apparatus) for detecting, prosecuting and punishing acts that constitute persecution, and that this protection is available to the applicant on a par with the country’s population in general. If the state lacks the capacity and/or will to provide protection against abuse, this may give rise to a right to international protection provided that the remaining conditions for international protection are met. This must be assessed specifically on the basis of information concerning the country and the individual conditions of the case. Whether the applicant has actually applied to the authorities of the country of origin for protection prior to leaving the country is not decisive; the central issue is whether adequate protection can be expected on return. Here too, a role may be played by the gender aspect. In some cases, people may subject themselves to increased risk by seeking the help of the police in their country of origin; many women, for example, live under such conditions that it is not practically possible to seek the help of the authorities, and women may in some cases encounter difficulty in being believed, or may even be subjected to abuse by the police.

3.3 Convention grounds

In order to be recognized as a refugee and granted asylum, the persecution must be based on a convention ground. It is not required that the applicant actually holds a political opinion or belongs to a specific religion, race, nationality or particular social group. It is sufficient that the persecutor believes that the person concerned does so or has done so (referred to as imputed opinion or affiliation). This applies to both sexes, but may be particularly relevant to women. In many communities, women may be regarded as holding the same political opinion or religion as male family members. In other communities, the social/cultural gender roles are such that women are often generally perceived as more apolitical, and do not risk persecution even if their husbands are politically active. Women may sometimes, to a greater extent than men, risk persecution purely by virtue of the affiliations, opinions or activities of other family members, without this directly applying to them or being attributed to them (referred to as derivative persecution). Specific assessments must be made here on the basis of knowledge of the country concerned and of the individual conditions of each case.

3.3.1 Political opinion

Gender-sensitive interpretation indicates that women’s political activity must be viewed more broadly than what is traditionally defined as political activity. Women’s political activity may have different forms of expression than that of men. In certain cultures and religions, women’s activities may be restricted in such a way that it is not natural for women to exercise political activity in the form of party membership, attendance of political meetings or demonstrations. Instead, women may contribute politically through such activities as distributing food, nursing the injured or providing shelter for fugitives. Even in cases where such acts do not reflect any political opinion, this type of activity may easily be regarded by the persecutor as a sign of political opinion, cf. above. On the other hand, omission, for example, to give food to soldiers may be perceived as a political act. It is not otherwise certain that the woman herself would think to mention this type of activity if, in the asylum interview, she was asked about political activity, since, as far as the woman was concerned, the acts were not politically motivated. Such types of activity do not necessarily involve low risk; on the contrary, the risk may be disproportionately great precisely because, owing to the gender role, it is not regarded as proper for women to involve themselves at all.

Women’s acts, omissions and expressions of opinion that violate written or unwritten rules for the gender role, e.g. with regard to dress or education and work outside the home, may be (regarded as) expressions of a political opinion. Every case must be considered individually and in the light of relevant information concerning the country. For example, in some Muslim communities, refusal by a Muslim woman to wear a veil may be viewed as an expression of a political opinion, which might result in persecution, while it would not necessarily have the same consequence in other Muslim communities.

3.3.2 Membership of a particular social group

This is a convention ground that is often relevant in connection with gender-related persecution. This may indicate that this persecution ground must be assessed particularly thoroughly in relation to applicants who fall outside the other persecution grounds listed in the Convention.

The group cannot be defined solely on the basis of the persecution risked by members. Thus, if the persecution takes the form of abuse, the group cannot consist of abused women. The persecution may however create a perception of the existence of a group owing to the awareness of other shared characteristics of the members than the fact that they are persecuted. The size of the group has no relevance; in principle, it is possible, for example, to define all women in a country as a particular social group. However, defining a broad group may make it more difficult to establish causal relationships between the persecution and the group. The central issue is whether affiliation to the group gives rise to a genuine risk of persecution, although not all members of the group are actually persecuted. The requirement regarding causal relationships is further discussed in 3.4, below.

In the proposal for a new Immigration Act it is specifically provided that previous victims of human trafficking shall be regarded as members of a particular social group. Such an interpretation of the Refugee Convention is also provided by the current Immigration Act. This entails that previous victims of human trafficking who risk persecution on return shall have a right to asylum pursuant to section 17, cf. section 16 of the Act if the risk of persecution is a result of their being previous victims of human trafficking. A precondition for being able to claim international protection from people behind human trafficking must be that victims seek to escape the human trafficking networks.

3.3.3 Religion

A religion may demand specific behavioural roles or norms associated with gender. Persons who violate these norms may be subjected to persecution on grounds of religion. Failure to comply with such norms may be regarded as indicating that the applicant has an unacceptable religious attitude.

3.3.4 Race and nationality

The gender perspective plays a particular part in determining the manner of persecution. For example, forced sterilisation or rape of women may be a way of attempting to exterminate or destroy an ethnic group.

3.4 Causal relationships

Inclusion under article 1 A of the Refugee Convention, requires a causal relationship between the persecution and a convention ground.

The causal relationship requirement relates to the persecutor’s subjective motive for the act – why does the person concerned persecute the victim, or why do the authorities provide no help in combating the persecution? This entails that there must be a discriminatory element in the sense that the victim is selected for unfavourable treatment according to certain criteria.

In cases where the authorities are the persecutor, it is a condition that the persecution is carried out owing to a convention ground. If the persecutors are persons other than the authorities (i.e. private individuals or bodies), they must either persecute owing to a convention ground or the lack of state protection must be due to a convention ground in order that the applicant shall meet the conditions for asylum. In cases where the persecution by private persons bears no relation to a convention ground, it is thus not sufficient that the state has no capacity for protection. Not unless the state has no will to protect owing to a convention ground will the causal relationship requirement be met. This applies to all asylum cases, but may be particularly relevant to gender-related persecution.

In cases of abuse that only women can be subjected to by virtue of their gender (gender-specific abuse), e.g. female genital mutilation or bride burning, it will not as a rule be difficult to establish causal relationships with a social group, since this concerns a status that is easily identifiable regardless of the persecution. Women who belong to a tribe that practises female genital mutilation are at risk solely because they are women in the tribe. Correspondingly, persons are at risk of bride burning because they are women in the community concerned.

When persons are subjected to non-gender-specific persecution, typically forced marriage, domestic violence and honour killing, there must be a causal relationship between the persecution and a convention ground, e.g. the victim’s affiliation to a social group, for the requirement regarding asylum to be met. If the victim is not subjected to persecution on grounds of his or her affiliation to a specific social group or other convention ground, the reason for any lack of protection by the authorities must be assessed. If the lack of help from the authorities is due to the asylum applicant’s affiliation to a convention ground, the requirement regarding causal relationships will be met. An example is that the authorities refuse to help a woman who is subjected to private violence because she is a woman or because she belongs to a specific group of women.

Information concerning the country plays an important part in enabling assessment of the reason for any failure on the part of the authorities to provide protection. The authorities’ reticence to intervene in family violence is not necessarily due to a discriminatory attitude towards women, but may be because they do not generally intervene in domestic matters. If in practice it is generally women who are affected by the authorities’ reticence to intervene in the private sphere, there may nevertheless be a reason to ask whether the reason lies in discriminatory attitudes to women.

A lack of causal relationships need not entail that the applicant is not protected against return to his or her country of origin. Reference is made to section 4.

3.5 Internal flight alternative

The right to international protection is subsidiary to the possibility of protection in the country of origin. The principle of the internal flight alternative entails that the applicant is not granted asylum in Norway if he or she can receive protection against persecution in other areas of the country of origin than the person concerned fled from. The area must be accessible and safe, and referral to an internal flight alternative must not be perceived as unreasonable. The gender perspective may be particularly relevant as regards the assessment of reasonableness. In many countries, social, cultural and economic conditions may cause women to meet particular problems in establishing themselves in a new location. This may particularly apply to single women (widows, divorcees or unmarried women). They may, to a greater extent than men, be subjected to discrimination and harassment, and it may be more difficult for them to find employment and thus support themselves and any children. The gender perspective may furthermore have relevance in connection with the other factors, such as the area’s accessibility.

As regards the country of origin’s capacity and will to provide protection, cf. 3.2.

3.6 Sur place

In some cases, sur place issues may be relevant, i.e. that the need for protection claimed by the applicant has arisen since leaving the country of origin. In Norwegian practice, many cases have, for example, been dealt with where the applicant has not made his or her sexual orientation known before seeking asylum in Norway. If it is found that the applicant is a homosexual and that, by taking the consequences of his or her sexual orientation, he or she risks persecution on return to the country of origin, asylum shall be granted regardless of the applicant’s conduct/behaviour in the country of origin prior to leaving (referred to as subjective sur place). This is in compliance with the practice that has long been followed in homosexuality cases, which originates in the Ministry of Justice’s guidelines from 1998.

As in other asylum cases, in sur place cases a specific and individual assessment must be made of the risk on return.
 
4 PERMIT ON PROTECTION GROUNDS

When there is no relationship between the risk of persecution and a convention ground but there is nevertheless a genuine risk of inhumane or degrading treatment, etc., the applicant will in principle be entitled to a residence permit on grounds of protection, cf. section 15, first paragraph, of the Act, cf. section 21, first paragraph, of the Regulation. As regards gender-related claims, permits have typically been granted pursuant to this provision in cases where it has been difficult to establish causal relationships between the convention ground “membership of a particular social group” and the risk of persecution, while there has been a risk of abuse of sufficient seriousness and scope in the country of origin.

5 PERMIT ON HUMANITARIAN GROUNDS (SECTION 8, SECOND PARAGRAPH, OF THE IMMIGRATION ACT)

The discretionary assessment of whether “strong humanitarian grounds” and/or “a particular connection with Norway” indicate that a residence permit should be granted includes not only factors associated with the individual case, but also more general considerations, such as immigration policy considerations, consistency considerations and considerations regarding equal treatment. The provision must not be used in a manner that results in erosion of the main provisions of the Act. In connection with asylum cases, section 8, second paragraph, will function primarily as a protection provision.

Protection claims that do not result in the granting of asylum or protection against return may be relevant in a general assessment together with other circumstances. Previous violence and a risk of further violence may for example be combined with health problems of a certain seriousness. In such cases, it is also relevant consider the possibility of receiving medical assistance in the country of origin and of, for example, escaping a violent marriage (if it is possible to obtain a divorce), and to acquire the assistance of the authorities or of other relatives to establish a life independent of a violent spouse.

Single women and women with dependent children may be more vulnerable in many communities than single men or women who reside in a family. On return to her country of origin, it may be difficult for a woman to obtain employment, accommodation or a decent life if she does not have a social network. In some cases, single women may be subjected to a risk of general abuse, although there are no grounds for granting asylum. In all cases, it must be carefully assessed whether the return situation can be expected to be so difficult that there is a basis for granting residence in Norway on strong humanitarian grounds.

Violence against women in marriage is a particularly prevalent and partly accepted phenomenon in many countries. The potential level of immigration is therefore considerable if this is recognised as a basis for granting residence permits. In cases where all the conditions for refugee status are met or where Norway is obliged by international rules not to return an applicant, this is not relevant. However, in cases where the applicant has no claim to refugee status or to a residence permit on grounds of protection, considerations favouring the granting of a permit must be weighed against immigration policy considerations.
 
6. COMMENCEMENT

These instructions enter into force immediately.

Yours faithfully

 

Thor Arne Aass (by authority)
Director General

                                                                         Unni Mette Vårdal
                                                                         Senior Adviser
                       
                                                                         CC: Immigration Appeals Board