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Moira Dustin, Christel Querton, Women in Refugee Law, Policy and Practice: An Introduction to The Refugee Survey Quarterly Special Issue, Refugee Survey Quarterly, Volume 41, Issue 3, September 2022, Pages 347–354, https://doi.org/10.1093/rsq/hdac023
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Abstract
As co-founders and conveners of the Women in Refugee Law (WiRL) network, we are delighted to introduce this Special Issue. The contributors are WiRL members who take forward the network’s objectives of recentring the study of refugee women by reviewing the state of protection in domestic jurisdictions and internationally, identifying setbacks to adequate protection for women at risk of persecution, and proposing inclusive ways forward.
1. INTRODUCTION
Gaps in the protection of women in international refugee law became the subject of academic study and civil society attention in the 1980s.1 Since then, there have been high-profile legal and policy developments in this field at international and domestic levels.2 However, feminist scholars and activists have more recently raised concerns that issues of gender in refugee law have returned to the margins.3 More specifically, there may be a perception that enquiry into the protection of refugee women is no longer pressing due to changes in law and practice, such as the adoption of gender guidelines, the mainstreaming of gender training, and the recognition of women as members of a “Particular Social Group”. Furthermore, as claims that refugee women are inadequately protected by existing legal and policy frameworks date back to the 1980s, the work of scholars investigating the topic may be considered redundant or unoriginal.4 The result of these two assumptions is a noted decrease in attention to the question of women in refugee law, policy and practice in recent years.5
Addressing the need for a renewed focus on the rights and concerns of refugee women is the driver for the Women in Refugee Law (WiRL) network and this Special Issue. The objective of both is to re-centre women in refugee scholarship and advocacy. While refugee women are the drivers and focus of much research, policy and activism,6 the momentum around women’s asylum issues is not as strong as it was in the 1980s and 1990s when important case law and guidance in Western countries corresponded with new scholarship.7
In order to respond to these concerns, the editors of this Special Issue co-founded the WiRL network in spring 2021. The network provides a space to safeguard advances and identify contemporary obstacles to the protection of women in refugee law, to review the state of protection in domestic jurisdictions and internationally, enquire into any setbacks that may have gone unnoticed, and identify new challenges and opportunities for collaborative work. Through WiRL, we seek to engender a renewed focus on refugee women.
WiRL held its first event, a roundtable, in May 2021 asking: Where are the women in international refugee law? Around 20 participants from different countries, including academics, experts by experience, activists, and representatives of the office of the United Nations High Commissioner for Refugees (UNHCR), non-governmental organisations (NGOs) and the legal profession, met to identify gaps and priorities in relation to women’s international protection. The roundtable confirmed the appetite for a network to connect people from different countries and from research and other sectors, with the shared objective of improving refugee women’s rights and protection.8 Collaborating on this Special Issue was prioritised as one of the network’s first activities. The Issue brings together a collection of articles and field reflections addressing the following questions:
To what extent are women seeking international protection adequately protected by existing legal frameworks of international and domestic refugee law and international human rights law?
To what extent have the insights of feminist theory and praxis been reflected in improvements in the understanding of the needs and experiences of women claiming asylum?
What are the new theoretical, legal and practical challenges faced by women seeking international protection?
How are advocates and activists addressing some of the new or ongoing entrenched obstacles faced by women claiming asylum?
Several of the contributors presented their work at WiRL’s first conference held in November 2021.9 The Special Issue picks up the concerns of the conference to analyse continuing problems and highlight new inequalities in the application and interpretation of law and policy in this field. It examines how legal frameworks, interpretations of the law, asylum processes, and cultural and gendered expectations of behaviour have a specific impact on women, connecting these analyses to the work of activists and practitioners in achieving meaningful improvements for women.
Importantly, and reflecting WiRL’s global and interdisciplinary approach, the Special Issue seeks to go beyond the usual academic journal structure by including what we call “field reflections” by activists and advocates with applied experience of improving the protection of refugee women. As editors, we were keen that this Issue – like the wider project that it is part of – should help to identify and tackle some of the hierarchies that exist in refugee research and advocacy. Participants at the May roundtable and November conference voiced their concern that refugee women – the experts by experience – as well as scholars in the Global South should be involved as partners in WiRL for the initiative to be of any value.10
The contributions in the Special Issue are diverse in terms of topic, jurisdiction, disciplinary perspective, and methodology, yet they are connected in highlighting and mapping the contingent nature of developments in the protection of refugee women. In answering the research questions set out above, these contributions centre on themes which have emerged as recurring, some of which were first identified in the 1980s, and new problems in the field of refugee women’s protection: non-state actors of protection (Querton), the Refugee Convention grounds of persecution (Dustin, Crawley), knowledge production (Crawley) and serious harms and processes (Honkala, O’Nions, Vasefi/Dehm). Two advocate field reflections (Mponela, Anker) show how some of these themes currently translate into the lived experiences of women claimants in the UK and the US. Together, these articles expose the fragile nature of progress in the recognition of refugee women’s statuses and rights. They show that gender-sensitive developments in law, policy, and practice may be reversed and are subject to setbacks linked to political interests (Anker, O’Nions, Vasefi/Dehm). Similarly, developments originally perceived as ground-breaking for the protection of refugee women, such as deployment of the Refugee Convention ground of Particular Social Group or recognition of the role of non-state actors, are nonetheless applied inconsistently or inadequately (Dustin), co-opted into various forms of exclusionary practices (Querton) or function to construct refugee women as victims (Crawley). Moreover, refugee status determination and accompanying processes established by States may have a greater or differential impact for women (Mponela, Honkala, O’Nions, Vasefi/Dehm). The Special Issue also demonstrates how asylum adjudicators’ ethnocentric expectations of behaviour by refugee women both in the country of asylum and the country of origin serve to discredit women and downplay their risk of serious harm (Honkala, O’Nions). It explores the legacies of colonialism and racism on knowledge production in the interpretation of international refugee law (Crawley). The field reflections connect theoretical and legal discourse with practice by providing up-to-date accounts from two jurisdictions where experts by experience and advocates support improvements to refugee law (Anker, Mponela). We are delighted to conclude the Issue with a short commentary by Rashida Manjoo, Professor Emeritus at the University of Cape Town and UN Special Rapporteur on Violence against Women, its Causes and Consequences from 2009 to 2015.
The authors in the Special Issue are from different disciplines and backgrounds and are diverse in their geographical scope. They include senior and early career scholars, advocates and activists, some of whom have been longstanding contributors to progress in this field, securing real benefits for women seeking asylum and better understanding of their needs and experiences. The contributions adopt varied methodologies ranging from qualitative empirical research (Dustin, O’Nions, Vasefi/Dehm), to theoretical (Crawley, Honkala), doctrinal (Querton, Honkala) and experiential approaches (Mponela, Anker). The articles cover jurisdictions in Europe, North America and Oceania, as well as exploring international and regional refugee law, policy and practice.
2. OVERVIEW OF THE SPECIAL ISSUE
The Issue’s first contribution explores the politics of knowledge production. Heaven Crawley claims that, despite the development over three decades of recognition of the legitimacy of gender-based and gender-related asylum claims, and the reflection of this recognition in international and national gender guidelines, feminist advocacy efforts have failed to reconfigure how the experiences of refugee women are understood and represented in practice. She attributes this partly to confusing and contradictory definitions of a particular social group that are used for women’s claims. While some refugee women may now be able to secure protection, this leaves the project of gender-based refugee law reform unfinished. The problematic framing of “Refugee Women” as a homogenous group positions women as victims of male violence and not rights-holders, and reinforces hierarchies of oppression, Global North-Global South binaries and racialised stereotypes of Black and Muslim men as perpetrators of violence.
The Special Issue then turns to refugee women’s advocacy and identity. Loraine Masiya Mponela reflects on the specific needs, but also the achievements, of asylum-claiming women in the UK – needs and achievements that are often obscured within a wider hostile environment, and by a new Nationality and Borders Bill that the United Nations High Commissioner for Refugees has stated would “unfairly punish many refugees”.11 Drawing on the author’s personal experience, this field reflection discusses the campaigning and service provision of organisations like Coventry Asylum and Refugee Action Group and Women for Refugee Women in the face of the damage done by Government policies, and the impact of destitution, detention, and sexual abuse. The contribution reviews the grassroots activism, coalition-building, and leadership based on lived experience at the heart of their organisations that were created to challenge government strategies of destitution, detention, and deportation. The piece also evaluates the obstacles, as well as the opportunities, that the pandemic has created for refugee campaigners and advocates in the UK.
Moira Dustin claims that the insights of feminism relating to gender-based violence and refugee women have not sufficiently benefitted lesbian and bisexual women claiming asylum in the UK where these women have experienced gender-based violence, and that this is because these claims have been viewed through the prism of sexual orientation instead of gender. Building on fieldwork conducted since 2016, she maps out some of the implications of this phenomenon for claims made by the women concerned, finding that it leads to a focus on credibility in terms of sexual orientation and unrealistic requirements for consistency in the narrative of the claimant. She suggests that using political opinion as well, or instead of, particular social group as the nexus ground in some of these applications might result in a more appropriate and gender-sensitive approach.
The following two contributions explore how the interpretation of and reliance on certain refugee law concepts serve as a means to exclude refugee women. Deborah Anker’s field reflection maps the development of US asylum law in the protection of refugee women from the pre-1990s period to the present and reflects on how the Bidden administration could guarantee the continued progressive development of this area of law. The piece reviews how early advances were achieved through women’s rights activism, including the recognition of gender as a basis for membership of a particular social group, opposition to gender-based violence as an expression of political opinion, and the recognition of non-state actors of persecution. Anker reflects on the fragility of those developments as illustrated by changes in thresholds for refugee protection under the Trump Administration. Looking forward, this field reflection suggests how strategic litigation in the field of refugee women may yet again contribute more broadly to the development of refugee law.
Christel Querton argues that reliance on the concept of non-state actors as agents of protection has had a detrimental impact on the protection of refugee women in Europe. Querton demonstrates how the practice of various institutions, such as supra-national courts, domestic courts and refugee agencies, has narrowed the category of women at risk to one of “lone” women resulting in a largely unnoticed sliding scale of protection. The article rejects the notion that non-State actors, such as male family members and undefined social networks, have the necessary qualities to provide accessible and effective protection to women and suggests that the expectation that women seeking asylum return to seek protection from those actors is a form of discretion requirement and, in itself, a breach of their human rights.
The next two articles enquire into judicial perspectives and processes. Nora Honkala uncovers the underlying cultural assumptions made by asylum adjudicators in the UK Upper Tribunal (Immigration and Asylum Chamber) in a study of asylum claims based on forced marriage leading to gendered stereotypes of women seeking asylum. She shows how the conflation of forced and arranged marriage relegates the issue to the private sphere and describes how the severity of the harm suffered is trivialised in these claims. Subsequently, these experiences are considered to fall outside the remit of international refugee law and refugee women are excluded from protection. Her article highlights the gap between theory and practice in relation to the asylum claims of women who have undergone forced marriage.
Helen O’Nions argues that the intersection of legal scepticism with ethnocentric expectations of behaviour and gender blindness impacts on the reasoning of the asylum tribunal to the particular detriment of women asylum seekers. The article is informed by the experiences of 14 women appealing to the UK’s first-tier tribunal after their claim was refused by the Home Office. O’Nions describes developments from a period where gender guidelines were in existence but not consistently applied, to the current situation where no such guidelines are in force for tribunal judges who nevertheless claim to operate on a “gender-blind” basis. Drawing on procedural justice theory, O’Nions argues that the combination of the absence of guidelines, and negligible judicial training in a culture of scepticism leaves a vacuum in which iterations of ethnocentric “common-sense” and unrealistic expectations take root and calls for empathy-informed reasoning.
Gendered harms and access to justice is the subject of the final contribution in this Special Issue. Saba Vasefi and Sara Dehm focus on the gendered harms of Australia’s offshore detention regime on Papua New Guinea and Nauru. While the regime has been widely criticised, the particular carceral experiences and structural vulnerabilities of refugee women has received limited attention in refugee law scholarship. Here, the authors document and conceptualise the abusive nature of the regime from a gender perspective: first in relation to the produced insecurity and sexual violence in immigration detention on Nauru; next, in relation to the gendered medicalisation of refugee bodies; and finally, in relation to the continued punitive legal limbo and produced deportability for refugee women transferred to Australia who nonetheless remain subject to the legal exclusions under Australia’s offshore detention regime. The authors argue that, rather than being incidental to the operation of offshore detention, gendered harms have become a defining feature of the structural violence of Australia’s deterrence framework and practices of refugee exclusion.
Finally, Rashida Manjoo’s contribution draws together some of the themes covered in this Special Issue and looks ahead at what might be the priorities for refugee women, researchers and advocates, building on her extensive experience in the field of human rights, social justice and gender at international and national levels. Her work has bridged research, advocacy and policy, making this an entirely fitting concluding piece to an Issue that seeks to break down hierarchies and distinctions based on geography, discipline and sector.
3. NEXT STEPS AND LOOKING FORWARD
The international protection of refugee women is a large field of research with many strands and sub-strands relating to law, policy and lived experience as women try to make new lives for themselves after displacement. Given WiRL’s ambition, reflected in this Special Issue, to be a global and interdisciplinary presence, we know that a comprehensive mapping of the landscape for refugee women is not a realistic goal. Rather, our hope is that this Issue provides a snapshot of some of the priorities that confront women seeking international protection at a particular point in time. Without homogenising women’s experiences, it is possible and useful to identify commonalities and make connections to enrich refugee scholarship, inform practice and expose some of the flaws and inconsistencies in application of refugee law when the person at the centre is a woman.
The process of putting this Issue together has been a valuable learning experience in this regard, showing some of the difficulties in diversifying the “refugee academy”. Our open call for contributions elicited a pleasing number of responses from well-established and up-and-coming scholars and advocates in the field. It did not elicit responses from academics in Global South institutions or from practitioners or “experts by experience”, and when we took a more proactive approach, encouraged by the Refugee Survey Quarterly Editorial Board, to secure contributions we had minimal success. This was for entirely unsurprising reasons that explain how difficult it is to break the chain of privilege in discourse: there are well-established pools of refugee knowledge in Europe, North America, and Australia but less so in other countries. In looking for contributions from “experts by experience” and practitioners, we were aware and indeed found that these potential contributors understandably had more pressing commitments that limited their capacity to contribute. They were also less likely to be familiar with the rules of the academic “game” and processes such as referencing, on-line submission, and peer review, adding to the demands on their time. Moreover, while research and higher education increasingly values knowledge exchange and co-production outside the academy, structural obstacles such as the lack of open access in publications and failure to reimburse non-academic “stakeholders” for their time continues to make academia a closed shop. Furthermore, while we as editors are well-connected with scholars and advocates in the field of refugee studies in the UK and some European and Western jurisdictions, that is a narrow field that excludes much relevant expertise and experience, and our connections are similarly narrow. These experiences demonstrate the way that inequalities in knowledge production are perpetuated and even exacerbated. Encountering these obstacles in the process of editing this Special Issue has been a useful exercise that will inform the next steps that WiRL takes in developing its membership and activities, with a fundamental lesson being that diversification takes time and resources as much or more than good intentions.
The Special Issue also advocates for non-standard academic outputs such as field reflections as a means to bridge academia and practice. We anticipate that these field reflections and the longer articles included here will add to the long-standing history of researching and advocating to improve the process of knowledge production regarding refugee women. While identifying protection gaps, erroneous assumptions within decision-making and scholarly perspectives, the contributors also make recommendations on how to address obstacles to the protection of refugee women, improve their access to justice, and cross the North/South divide of knowledge production. We hope this will make a contribution to incremental progress towards improving the rights of refugee women through shared knowledge and form the basis for expanding our network of scholars and practitioners collaborating for this purpose.
Footnotes
A. Edwards, “Transitioning Gender: Feminist Engagement with International Refugee Law and Policy, 1950–2010”, Refugee Survey Quarterly, 29(2), 2010, 21–45; J. Greatbach, “The Gender Difference: Feminist Critiques of Refugee Discourse”, International Journal of Refugee Law, 1(4), 1989, 518–527.
For example, UK House of Lords, Islam v. Secretary of State for the Home Department Immigration Appeal Tribunal and Another, Ex Parte Shah, R v. [1999] UKHL 20; UN High Commissioner for Refugees (UNHCR), Guidelines on International Protection No. 1: Gender-Related Persecution Within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, 7 May 2002, HCR/GIP/02/01, available at: https://www.refworld.org/docid/3d36f1c64.html (last visited 17 Mar. 2022).
E. Arbel, C. Dauvergne & J. Millbank, “Introduction”, in E. Arbel, C. Dauvergne & J. Millbank (eds.), Gender in Refugee Law: from the Margins to the Centre, Abingdon, Routledge, 2014.
Ibid., 10.
C. Dauvergne, “Women in Refugee Jurisprudence”, in C. Costello, M. Foster & J. McAdam (eds.), The Oxford Handbook of International Refugee Law, Oxford, Oxford University Press, 2021, 728–729.
In the UK, the country that we as editors of the Issue know most about, there is a concerted fightback against the harmful measures in the Nationality and Borders Bill. The proposed legislation has seen refugees, NGOs and lawyers working together to highlight the specific dangers the Bill poses to women seeking protection. See legal advice prepared for the charity Women for Refugee Women, S. Harrison QC, E. Fitzsimons, U. Dirie & H. Lynes of Garden Court Chambers, November 2021, available at https://www.gardencourtchambers.co.uk/news/the-nationality-and-borders-bill-legal-opinion-prepared-by-garden-court-barristers-for-women-for-refugee-women (last visited 20 Feb. 2022).
See: Matter of Acosta, A-24159781, United States Board of Immigration Appeals, 1 March 1985; Islam v Secretary of State for the Home Department, R v Immigration Appeal Tribunal and Another, ex parte Shah (1999); Immigration and Refugee Board of Canada, Guidelines Issued by the Chairperson Pursuant to Section 65(4) of the Immigration Act: Guideline 4 - Women Refugee Claimants Fearing Gender-Related Persecution, 13 November 1996; H. Crawley, Refugees and Gender: Law and Process, Jordan Publishing, 2001; J. Greatbatch, “The Gender Difference: Feminist Critiques of Refugee Discourse”; D. Indra, “Gender: A Key Dimension of the Refugee Experience”; A. Macklin, “Refugee Women and the Imperative of Categories”, Human Rights Quarterly, 17(2), 1995, 213–277.
WiRL Network Roundtable, “Summary Note”, 4 May 2021, available at: https://www.uwe.ac.uk/-/media/uwe/documents/research/wirl-conference-summary.pdf (last visited 17 Mar. 2022).
The recordings of the conference are available at: https://www.uwe.ac.uk/research/centres-and-groups/global-crime-justice-security/women-in-refugee-law (last visited 17 Mar. 2022).
WiRL Network Conference, “Discussion: Building Bridges North/South and Academia/Practice”, 30 Nov. 2021, available at: https://www.youtube.com/watch?v=aiNxNGYlu-s (last visited 17 Mar. 2022. WiRL Network Roundtable, “Summary Note”, 4 May 2021, available at: https://www.uwe.ac.uk/-/media/uwe/documents/research/wirl-conference-summary.pdf (last visited 17 Mar. 2022).
“After UK asylum bill debate, UNHCR urges MPs to avoid punishing asylum-seekers”, 21 July 2021. Accessible at https://www.unhcr.org/uk/news/stories/2021/7/60f8028a4/after-uk-asylum-bill-debate-unhcr-urges-mps-to-avoid-punishing-asylum-seekers.html (last visited 4 April 2022).