Abstract
Recent case law of the ECtHR points to the increasing relevance of the gender perspective in migration and asylum cases. Human rights violations claims emanating from women or sexual minorities raise a fundamental gender dimension, which is not usually addressed as such by the Court. The failure to effectively respond to gender-oriented arguments, coupled with the limits inherent in the vulnerable status of the applicants, continues to restrict access of this category of claimants to international asylum protection and hinder the consolidation of their human rights claims. The chapter calls for more sociologically informed decision-making practices and a more contextualised and relational approach in the assessment of the risk of ill-treatment. Such an approach is essential for unearthing the gendered patterns of persecution and addressing effectively related claims.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Similar content being viewed by others
Notes
- 1.
According to the Guidelines of the UNHCR 2002, § 1: “Gender-related persecution … is used to encompass the range of different claims in which gender is a relevant consideration in the determination of refugee status”.
- 2.
‘Gender’ refers to ‘the relationship between women and men based on socially and culturally constructed and defined identities, status, roles and responsibilities that are assigned to one sex or another, while sex is a biological determination. Gender is not static or innate but acquires socially and culturally constructed meaning over time’ (UNHCR Guidelines 2002, § 3).
- 3.
In this regard UNHCR urges states to recognise gender-related asylum claims as such: ‘These guidelines specifically focus on the interpretation of the refugee definition … from a gender perspective, as well as propose some procedural practices in order to ensure that proper consideration is given to women claimants in refugee status determination procedures and that the range of gender-related claims are recognised as such’ (Guidelines 2002, § 1).
- 4.
The Court states: ‘… there is no indication that the domestic authorities would be unwilling or unable to protect the applicant’.
- 5.
See CEDAW 2014, § 29: ‘... the Committee notes that the fact that a woman asylum seeker has not sought the protection of the State or made a complaint to the authorities before her departure from her country of origin should not prejudice her asylum claim, especially where violence against women is tolerated or there is a pattern of failure in responding to women’s complaints of abuse…’
- 6.
‘States should also take into account gender-related aspects and risks in the assessment as to whether internal relocation is permissible. Difficulties faced by women in relocating to other parts of their countries of origin can include legal, cultural and/or social restrictions or prohibitions on women travelling or living alone, practical realities such as problems of securing accommodation, childcare and economic survival without family or community support, and risk of harassment and exploitation, including sexual exploitation and violence'.
- 7.
The dissenting judges Zupancinc and De Gaetano noted that the applicant’s male relatives may be equally or more hostile than society to her status (par. 44). However, the Court had serious doubts about the veracity of her allegations, as she had not convincingly explained why she presented such allegations to the migration authorities.
- 8.
According to the UNHCR Guidelines, 2012, § 27: ‘Even if irregularly, rarely or ever enforced, criminal laws prohibiting same-sex relations could lead to an intolerable predicament for an LGB person rising to the level of persecution. Depending on the country context, the criminalization of same-sex relations can create or contribute to an oppressive atmosphere of intolerance and generate a threat of prosecution for having such relations…’
- 9.
See UNHCR Guidelines, 2012, § 36: ‘Depending on the situation in the country of origin, laws criminalizing same-sex relations are normally a sign that the protection of LGB individuals is not available. Where the country of origin maintains such laws, it would be unreasonable to expect that the applicant first seeks State protection against harm based on what is, in the view of the criminal law act’.
- 10.
‘Such a requirement of forced reserve and restraint in order to conceal who one is, is corrosive of personal integrity and human dignity’.
- 11.
UNHCR, Guidelines, §§ 31–33: ‘It is also important to recognise that even if LGBTI individuals conceal their sexual orientation or gender identity they may still be at risk of exposure and related harm for not following expected social norms … The absence of certain expected activities and behaviour identifies a difference between them and other people and may place them at risk of harm. Being compelled to conceal one’s sexual orientation and/or gender identity may also result in significant psychological and other harms. Discriminatory and disapproving attitudes, norms and values may have a serious effect on the mental and physical health of LGBTI individuals and could, in particular cases, lead to an intolerable predicament amounting to persecution. Feelings of self-denial, anguish, shame, isolation and even self-hatred, which may accrue in response an inability to be open about one’s sexuality or gender identity, are factors to consider, including over the long-term’.
- 12.
This approach is inspired by the UNHCR Guidelines 2002, loc.cit.: § 7: ‘It is important to approach the assessment holistically and have regard to all relevant circumstances of the case. It is essential to have both a full picture of the asylum-seeker’s personality, background and personal experiences, as well as an analysis and up-to-date knowledge of historically, geographically and culturally specific circumstances in the country of origin…’
Bibliography
A.A. and others v. Sweden App no 14499/09 (ECHR, 28 June 2012)
Anker, D. E. (2002). Refugee law, gender, and the human rights paradigm. Harvard Human Rights Law Journal, 15, 133–157.
A.L. v. UK (dec.) (committee) App no 32207/16 (ECHR, 13 March 2018).
Arbel, E., Dauvergne, C., & Millbank, J (Eds.), 2014 Introduction Gender in Refugee Law: From the Margins to the Center Routledge London (pp. 1–16).
Brems, E. (2010). Strong women don’t need asylum (The European Court on FGM). Strasbourg Observers Blog. https://www.Strasbourgobservers.com. Accessed 6 March 2019.
Collins and Akaziebie v. Sweden (dec.) App no 23944/05 (ECHR, 8 March 2007).
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (1979).
CEDAW. (2014). General Recommendation No 32 on the Gender-related Dimensions of Refugee Status, Asylum, Nationality and Statelessness of Women, 17 November 2014.
Convention on Preventing and Combating Violence against Women and Domestic Violence, The “Istanbul Convention”. (2011).
Crawley, H. (2000). Engendering the state in refugee women’s claims for asylum. In S. Jacobs, R. Jacobson, & J. Marchbank (Eds.), States of conflict: Gender, violence, resistance (pp. 87–104). London: Zed books.
Danisi, C. (2009). Preventing torture and controlling irregular immigration: The role of the European committee for the prevention of torture and its activity in Italy. Essex Human Rights Law Review, 6, 151–176.
Declaration on the Elimination of Violence against Women (1993).
Directive 2011/96/EU on Standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast) (“the qualification directive”).
Directive 2013/32/EU on common procedures for granting and withdrawing international protection (recast) (the “Asylum Procedures Directive”).
Directive 2013/33/EU laying down standards for the reception of applicants for international protection (recast) (the “Reception Conditions Directive”).
Dudgeon v. UK App no 7525/76 (ECHR, 22 October 1981).
European Parliament, Directorate General for Internal Policies, Citizens Rights and Constitutional Affairs (2012). Gender Related Asylum Claims in Europe. Study. https://www.europarl.europa.eu/meetdocs/2009_2014/documents/femm/dv/asylum_claims_/asylum_claims_en.pdf. Accessed 6 March 2019.
European Union Agency for Fundamental Rights (FRA) (March 2017). Current migration situation in the EU: Lesbian, gay, bisexual, transgender and intersex asylum seekers. https://fra.europa.eu/en/publication/2017/march-monthly-migration-focus-lgbti. Accessed 6 March 2019.
F. v. UK App no 17341/03 (ECHR, 22 June 2004).
H.L.R v. France, [GC] App no 24573/94 (ECHR, 29 April 1997).
I.F.W. v. Sweden (dec.) (committee) App no 68992/10 (ECHR, 9 October 2012).
I.I.N. v. Netherlands App no 2035/04 (ECHR, 9 December 2004).
International Organization for Migration (IOM). (2019). UN Migration, Gender and Migration, https://www.iom.int/gender-and-migration. Accessed 17 February 2019.
Izevbekhai and others v. Ireland (dec.) App no 43408/08 (ECHR, 17 May 2011).
Joint cases C-199/12, C-200/12, and C-201/12, X, Y and Z v. Minister voor Immigratie, Integratie en Asiel (CJEU, 7 November 2013).
Maputo Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, 11 July 2003.
M. B.v. Netherlands (dec.) (committee) App no 63890/16 (ECHR, 28 November 2017).
M.E. v. SwedenApp no 71398/12 (ECHR, 26 June 2014).
Milibank, J. (2009). From discretion to disbelief: Recent trends in refugee determinations on the basis of sexual orientation in Australia and the United Kingdom. International Journal on Human Rights, 13, 391–414.
M.Y.H. and others v. Sweden App no 50859/10 (ECHR, 27 June 2013).
N. v. Sweden App no 23505/09 (ECHR, 20 July 2010).
Omeredo v. Austria App no 8969/10 (ECHR, 20 September 2011).
Otto, D. (2013). International human rights law: Towards rethinking sex/gender dualism. In Davies & Munro (Eds.), The ashgate research companion to feminist legal theory, ashgate. https://ssrn.com/abstract=2178769.
Peroni, L. (2018). The protection of women asylum seekers under the European convention on human rights: Unearthing the gendered roots of harm. Human Rights Law Review, 18(2), 347–370.
R.B.A.B and others v. the Netherlands App no 7211/06 (ECHR, 7 June 2016).
R. D. v. France App no 34648/14 (ECHR, 16 June 2016).
R.H. v. Sweden App no 4601/14 (ECHR, 10 September 2015).
R.W. and others v. Sweden (dec.) App no 35745/11 (ECHR, 10 April 2012).
Salah Sheekh v. the Netherlands App no 1948/04 (ECHR, 11 January 2007).
Sow v. Belgium App no 27081/13 (ECHR, 19 January 2016).
Steendam S. (2014). M.E. v. Sweden: Back to the closet. https://strasbourgobservers.com. Accessed 6 March 2019.
UN Women. (2017). Report on the legal rights of women and girl asylum seekers in the European Union, Istanbul.
UN. (2006). 2004 World Survey on the role of women in development, Women and international migration.
UNHCR. (2002).Guidelines on International Protection: 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.
UNHCR. (2012).Guidelines on International Protection No 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1 A(2) of the Convention and/or its 1967 Protocol relating to the Status of Refugees.
Yogyakarta Principles. (2007). Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2020 Springer Nature Switzerland AG
About this chapter
Cite this chapter
Petropoulou, A. (2020). Gender, Migration and Human Rights in the Case Law of the European Court of Human Rights. In: Jacobsen, M., Berhanu Gebre, E., Župarić-Iljić, D. (eds) Cosmopolitanism, Migration and Universal Human Rights. Springer, Cham. https://doi.org/10.1007/978-3-030-50645-2_12
Download citation
DOI: https://doi.org/10.1007/978-3-030-50645-2_12
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-030-50644-5
Online ISBN: 978-3-030-50645-2
eBook Packages: Social SciencesSocial Sciences (R0)