Asylum and gender
Gender-based persecution
As far as the international protection of asylum is concerned, persecution can be defined as the serious or sustained or systematic violation of human rights. Discrimination or less favourable treatment may even amount to persecution and require international protection.We talk about gender-based persecution when these human rights violations are linked to the role that someone is allocated on account of their gender identity (female, male, trans, or others) or due to their sexual preferences.
Women and people with non-normative gender –those whose identity or sexuality do not match the standard norms- suffer discrimination and persecution, especially through control of their sexuality, their reproductive capacity and their bodies. Although many people do not identify with this acronym, so as to be able to name and analyse them, in this guide we will talk about women and LGTTBI people (lesbians, gays, transsexuals, transgender, bisexuals and intersexuals).
The right to asylum from a gender perspective
After the first normative reference included in the Universal Declaration of Human Rights[1], the 1951 Geneva Convention on the Status of Refugees[2] (hereinafter Geneva Convention) and the 1967 New York Protocol, along with other tools, have gradually formed the international right to protection for refugees, on which national laws have been based.
Spain ratified the Geneva Convention in 1979, and in 1984 it adopted the first Law regulating the right to asylum and the status of refugees, which went through several changes before being replaced in 2009 by fresh legislation.
The current Asylum Law (Law 12/2009, of the 30th of October, that regulates the right to asylum and subsidiary protection) includes persecution based on gender or sexual orientation, as grounds for asylum[3]. This formal recognition represents a step forward with regard to previous legislation and a quite significant advance towards equality between men and women and towards the recognition of the violence suffered by the LGTTBI population.
Main setbacks
Prevailing circumstances in the country of origin
However, unlike what happens with the other causes of persecution -race, religion, nationality, social group and political opinions-, The Asylum Law states that gender and sexual orientation cannot lead to persecution by themselves, but that this will depend on the prevailing circumstances in the country of origin[4].
For someone to be recognised as a refugee they must have experienced a justified fear and prove it. In Spain, the competent body for conducting asylum requests is the Asylum and Refugee Office (ARO, attached to the Home Office). There must be circumstances in their surroundings that justify their fear. However, these facts do not necessarily have to be the prevailing circumstances in their country of origin.
Human rights organisations and social collectives in many regions also state the problems they have to gather reliable information on certain violations of human rights that are still not fully recognised, are covered up by state and non-state entities, and where investigating to find out what happened and bring to trial the perpetrators means accepting the risk of persecution.
Exclusion of EU citizens and those from ‘safe’ countries
It is worrying that EU citizens are excluded from the right to ask for asylum in Spain. The Asylum Law deprives them of the possibility of asking for protection. It also excludes people from a country considered to besafe[5]. Their requests can be ruled out without an individualised examination of their case, as the Geneva Convention requires.
These restrictions affect all refugees that manage to reach the Spanish state in search of asylum, but have a special impact on women and the LGTTBI population. The latter undergo persecution and discrimination in the European Union and in other democratic countries, where governments cannot or will not always protect them. Many women who are victims of being trafficked for sexual exploitation come from countries in the European Union. On many occasions, gender-based violence also occurs in the private, family or community sphere and doesn’t appear in human rights reports that analyse the social and political contexts in the countries of origin.
At CEAR-Euskadi we consider that the progress made in equality between men and women and the recognition of rights for the LGTTBI population that have occurred in many countries in the last few decades, help to create greater respect for freedom and dignity but are not enough to safeguard them. We cannot get around the huge gap between having rights and the possibility of enjoying them.
In Europe we are witnessing a dismantling of the Welfare State that will entail more reductions in basic rights, including sexual and reproductive rights, as is now occurring in Spain.
Requests for asylum by diplomatic channels
Since 2009 the possibility of requesting asylum in Spanish Diplomatic Missions and Consular Offices has also disappeared. This channel could only be used if the person was outside their country of origin, and had hardly any practical effects. However it was a very important tool providing access to protection, especially when the European Union has placed the supervision of its borders in the hands of soldiers, private companies and third countries where human rights are not respected.
The Spanish government has removed this possibility from the Law in view of the requests for protection presented by Iraqi refugees at the Spanish embassy in Egypt, displaced by a war that it took an active part in. This is an unfair and unjustified measure that also has specific consequences for women and the LGTTBI population.
Women flee countries in conditions that are different to those in which men do. They run the risk of being physically and sexually abused by the authorities that they come across on their way and by the men that flee with them. Many are captured during their journey by trafficking networks to be exploited sexually or professionally. The LGTTBI population also experiences a high degree of vulnerability and discrimination as they are forced to pass through or stay in countries where they are pointed out and persecuted. In addition, most trans-people have no documents that show their identity, which enormously increases the problems they have to move around and the risk of being abused by the authorities.
Some advances
We don’t want to ignore, despite all this, certain advances that the law has brought with it, as well as the recognition itself -with restrictions- of the right to asylum for people persecuted on account of their gender. The Spanish state has gradually agreed to examine cases of people who fled from violence that had not been carried out by agents of the State, but by the community, the family, etc. In 2009, the Asylum Law expressly mentions non-state agents among the so-called agents of persecution or originators of serious harm. This step is extremely important for those who are persecuted in the private sphere.
As far as asylum is concerned it is vital to know the role played by the country of origin in the persecution that has occurred. The Spanish State has an obligation to protect refugees when their own state carries out or encourages persecution, but also when it tolerates this and when it is unwilling or unable to stop it.
It is also extremely important to discern the characteristics that persecutors attribute to their victims. Homophobic groups don’t just persecute someone because they are gay: they also do so because they look like that; because of the characteristic features that they attribute to them as such, regardless of what their sexual identity or preference really is. Persecutors are driven by perceptions that are not always real. In many contexts women are perceived as forming a different, inferior, marketable, subordinate group.
The law also envisages that the Administration will adopt the measures required to ensure that in the asylum interview, when appropriate, they are treated differently on account of their sex; and states that the specific situations faced by applicants for or beneficiaries of international protection who are at risk will be taken into account and includes, among these, pregnant women and people who have undergone torture, rape or other serious kinds of psychological or physical or sexual violence and victims of human trafficking.
It also envisages the possibility of those people who have received protection status being able to extend this to other members of their family so that it recognises the spouse or the person linked to them by a similar emotional relationship and partnership. This also represents a basic nuance for LGTTBI people who are often deprived in their countries of origin of the right to marry.
Homophobia that goes unnoticed
In any case, we are struck by the fact that the people who have drawn up the Law have considered it to be relevant or have felt obliged to ‘clarify’ exactly that under no circumstances can conduct defined as a crime in the Spanish legal code be considered to be sexual orientation: a tactlessly homophobic statement with no practical consequences but with an impact on popular stereotypes. Once again they are helping to identify homosexuality with criminal or delinquent conduct. The law also now includes a clause to prevent anyone who has committed a serious crime in their country of origin from receiving protection.
The reality of the situation
However this brief analysis, which aims to provide a speedy interpretation of the legislation on asylum from a gender-based perspective, with its advances and setbacks, its guarantees and limitations, cannot reveal the disheartening reality surrounding its practical application: most refugees that reach Spain do not receive any protection and more than half of the cases are dismissed without even being examined.
Discretion requirement
As far as LGTTBI people are concerned, the use of what is known as the discretion requirement for rejecting and turning down their applications for asylum is especially worrying. This is based on the idea that someone is safe from being persecuted if they keep their sexual orientation or their gender identity hidden. This requirement is a practice that is contrary to the Geneva Convention, to European regulations and to the guidelines of the UNHCR itself; and it is a violation of the right to live freely according to your sexual orientation or gender identity.
By acting in this way, Spanish asylum procedures are, in actual fact, working in favour of the homophobic and trans-phobic attitudes that these people are fleeing from.
The internal flight alternative
Although it is not included by the Geneva Convention, the Spanish government usually refers to what is known as the internal flight alternative when it comes to rejecting requests for international protection, regardless of whether the country involved is well known for its homophobia or trans-phobia.
Protection must be effective, which rules out the use of internal protection as an alternative in countries where sexual orientation and gender identity are criminalised as well as in cases where ‘discretion’ is required to avoid future problems.
Trafficking for the purpose of sexual exploitation
The Spanish government systematically denies the right to asylum for female victims of trafficking for the purpose of sexual exploitation thereby contravening the recommendations made by the UNHCR and standard practice in neighbouring countries.
Despite the fact that according to the United Nations Organisation (UNO) Spain appears among the main destinations for trafficking networks for the purpose of sexual exploitation, the Asylum and Refugee Office (ARO[6]) considers that this type of persecution does not fall within the framework of the Geneva Convention because the persecuting agent is not the State, nor does the latter tolerate this violence; as the exploitation takes place in a third country, such as Morocco or Spain itself, not in the country of origin; and finally, because trafficking is considered to be criminal conduct, not a form of persecution aimed at a specific group.
It also considers that the protection mechanism is established by article 59A of the Immigration Laws[7]. Within this framework, protection of victims is conditional on them denouncing the networks that exploit them and collaborating with the authorities to dismantle these.
Neither of these two instruments is being applied effectively, and in practice, these women are vulnerable and run the risk of being sent back to their countries of origin.
Women who are victims of trafficking for the purpose of sexual exploitation can be recognised as refugees for various reasons:
- Trafficking, as it is extremely serious and because of the conditions in which women are exploited, represents a form of persecution.
- Women, because of their characteristics, are perceived by agents of persecution as being a specific social group and this leads to the persecution they face.
- Persecution is carried out by state and non-state agents. The State, through its structures, is directly or indirectly involved in the activities of these networks or is unable to counteract this reality and protect the victims.
- The serious risks for their lives and their safety that they face if they are sent back to their countries of origin.
The principleof non-refoulement
The first step towards being able to enjoy the protection of asylum is to get to a safe country. This means leaving your own country, crossing militarised frontiers, getting through discriminatory procedures or surviving the desert, the sea and wire fences. Achieving this nowadays is like winning a trial of strength with an entire union of countries that have invested embarrassing amounts of human, material and military resources into carrying out an insane policy that aims to prevent people from being able to leave their countries of origin. And if they do leave, to ensuring that they remain in transit, and if they do arrive, to making sure they are sent back.
International law forbids States from expelling or sending back someone to the territory of any country in which their life or freedom is threatened, or in which they may undergo torture, inhuman or degrading treatment or other violations of their human rights.
The ban on sending back refugees is included in article 33.1 of the Geneva Convention as a vital guarantee of the exercise of the right to asylum. However it is also a basic element in the customary ban on torture and cruel, inhuman or degrading treatment or punishment. The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) (art.3) states that no one shall be subject to torture or inhuman or degrading treatment or punishment, and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (art. 3.1) forbids the States party from expelling, sending back or extraditing anyone to another state whenever there are justified reasons to believe that they would be in danger of being subjected to torture.
In this respect, the European Court of Human Rights has declared (Soering case) that the ban provided by art. 3 of the European Convention against mistreatment is also absolute as far as expulsion is concerned.
The UNHCR, on the basis of these and other instruments for the protection of human rights (such as article 7 of the International Pact on Civil and Political Rights, article 5 of the Banjul Charter, and article 5.2 of the American Convention of Human Rights), has repeated that expelling or sending someone back to a country where there are substantial reasons to believe that they will face a real risk of torture, inhuman or degrading treatment or punishment fall within the scope of the ban on these acts. This also applies to expelling or sending someone back to a country from which they could successively be expelled or returned to a third country where they would face a real risk of such treatment.
The failure to comply with this principle leaves refugees without any guarantees of receiving international protection. It is binding in the territory of the State, in international waters and in countries in transit, whenever the Civil Guard or other public servants act, or transport or security companies, etc. do so on their behalf.
[1] Article 14: Everyone has the right to seek, and to enjoy in any other country, asylum from persecution. [2] Hereinafter 1951 Geneva Convention. [3] Preliminary title, Article 3: Definition of a refugee. Anyone is recognised as having refugee status who, due to justified fears of being persecuted on the grounds of their race, religion, nationality, political opinions, membership of a specific social group, gender or sexual orientation, is outside their national country and cannot, or because of these fears, will not accept the protection of this country, Stateless people who, have no nationality and are outside the country where they were previously usually resident, and for the same reasons, cannot, or because of these fears, will not return there, and are not subject to any of the reasons for being excluded in article 8 or to the reasons for denying or revoking their status in article 9 are also recognised as having refugee status. [4] Title I, Article 7: Depending on the prevailing circumstances in the country of origin, the concept of a specific social group includes a group based on a common characteristic regarding their sexual orientation or identity, and, or, age, without these aspects by themselves giving rise to the application of this article (…). Depending on the prevailing circumstances in the country of origin, people are also included who flee from their countries of origin on account of justified fears of suffering persecution on the grounds of gender and, or, age, without these aspects by themselves giving rise to the application of this article. [5] (…) in accordance with those established in article 27 of the Directive 2005/85/EC of the Council, and where appropriate, with the list prepared by the European Union (…).[6] The Asylum and Refugee Office (ARO), attached to the Home Office is responsible for hearing requests for asylum presented in Spain. [7] Organic Law 2/2009, of the 11th of December, that reforms Organic Law 4/2000, of the 11th of January, regarding the rights and freedoms of foreigners in Spain and their social integration.
doms of foreigners in Spain and their social integration.