The international refugee law has been structured in a manner in which the claimants must belong to a particular social group through narrowly defined categories. The refugee claimants are often faced with the fear of persecution based on any of the following enumerated grounds, namely nationality, religion, political opinion, and membership of a particular social group. However, gender is not enumerated as one of the well-founded grounds that would result in the fear of persecution by the refugees or immigrants in a foreign land. In addition, gender is not included as one of the grounds for persecution with the particular regard to the recognition as a Convention refugee in the Convention on the Status of Refugees of 1951. Therefore, the purpose of this paper is to examine critically the two concepts of the grounds in the Convention of on the Status of Refugees, namely gender persecution and particular social group.
In the recent times, there has been an increase in sexual violence cases targeting women based on their gender. It has resulted in a high number of refugees, immigrants, and asylum seekers that resort to seeking membership in a given social group given that it is an unchangeable and innate characteristic. Consequently, it has led to the increase in cases of gender-based forms of persecution, especially given the fact that the refugee and immigration policy of the United States does not currently recognise gender-based forms of persecution. However, a number of countries have made positive changes in their immigration and refugee policies such as Canada. The significant changes in the Canadian immigration policy refer to the gender-based forms of persecution of convention refugees. In addition, the immigration changes also consider persecution that is based on gender as a form of persecution due to one’s membership to a particular social group.
The current global practice regarding immigration reforms ensures that the laws fall within the relevant definition of the Convention refugee, thus minimising the gender-based forms of persecution. Gender-based persecution has not been included in the immigration policies of the United States as a critical component of recognised abuse. The Convention on the Status of Refugees of 1951 lists five integral categories of known persecution that protect refugees, immigrants, and asylum seekers from any form of abuse based on their membership in a predefined group or class. The five categories that are listed include religion, race, political persecution, ethnic origin, and social group. According to Kandt & Kristin (2005), the inclusion of gender according to these five categories of persecution will make it an officially recognised form of persecution. In addition, Kandt & Kristin (2005) argue that the inclusion of gender as one of the grounds of persecution will make the claimants fall under the definition of a ‘Convention refugee.’
The gender-based forms of persecution have significantly been affected by the developments in international human rights laws, in which the Convention on the Status of Refugees of 1951 falls. According to O’Hare & Ursula (1999), violence against women based on their gender should be treated as a matter of human rights violation rather than a family matter or an individual case. The recent developments and best practices worldwide have substantially impacted on the recognition of violence against women as an act that contradicts the individual’s human rights. It has necessitated the increasing need to include gender as one of the grounds of persecution in the specific regard to the international refugee laws and immigration policies of several countries. O’Hare & Ursula (1999) argue that there has been an established precedent in the field of gender-based violence, especially against women refugees and asylum seekers. It, thus, provides an opportunity to other groups to challenge the existing human rights laws in order to ensure that the rights of any individual are strictly observed.
The human rights to which the international refugees are entitled are usually changing and not static. Thus, the inclusion of gender-based forms of persecution in the international human rights laws will be a decisive move. Consequently, tt will ensure that the international refugees have a sense of ownership of their human rights by moving the discussion of their rights into enforceable legal rights framework from an expression of moral outrage. According to O’Hare & Ursula (1999), a high number of women have been a target of gender-based forms of persecution, including violence against women. It has resulted in the increased feminist debate in regard to violence, especially given the fact that the women contribute positively to the evolution of human rights in the world. Based on the feminists’ debate regarding violence against women, it can be concluded that gender does not equate to belonging to a particular social group. Thus, any form of gender-based persecution does not fall under the international human rights law; subsequently, the victims of the violence do not fall under the definition of Convention refugees.
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According to the UN Refugee Agency Guidelines on International Protection, gender-related persecution has no legal meaning per se in the context of Article 1A(2) of the 1951 Convention. In the 1967 Protocol related to the status of refugees, the corresponding issue is adequately addressed, especially given the fact that it separates the meaning of the terms gender and sex. Gender-based persecution relates to the violence connected with the relationship between men and women in the society, which is based on culturally or socially constructed meaning over a given period. Thus, the gender-related forms of persecution claims can be lodged with the relevant human rights bodies by either men or women involving various acts of violence against them. These acts of violence may include but not limited to the following: coerced family planning, domestic violence, acts of sexual violence, and female genital mutilation (Farmer & Alice, 2014). In addition, other gender-related claims include discrimination is connected with the sexual orientation and punishment of individuals based on the transgression of social mores.
The sexual rights violation is considered as one of the fundamental violations of the international human rights which refer to the rights of refugees as enumerated in the 1951 Refugee Convention and the 1967 Protocol concerning the status of refugees. According to Farmer & Alice (2014), there have been increased cases of violence against men and women based on their sexual orientation (Miller, 2000). The high number of claims have been reported to the relevant authorities and forwarded by those individuals that have been discriminated due to their membership in the Gay, Lesbian, and Transgender community. It is important to recognise that the human right to sexuality is universal one (Donnelly, 2013). However, there exist a number of obstacles in regard to the adoption of the universal human right to sexuality in immigration laws. Greatbatch & Jaqueline (2009) argue that gender-based persecution should be included as one of the prohibited grounds of persecution, especially given the fact that there is much hostility towards lesbianism.
The high number of gender-based persecution is evident amongst women according to the relationship of those women with the state. It has become increasingly difficult to determine the nature of gender-based persecution, thus the increasing challenge of assessing the validity of gender-based refugee claims. According to Greatbatch & Jaqueline (2009), the enactment of a proper system to handle refugee claims will require the inclusion of a human right-based definition of persecution in the refugee laws. In addition, it will also require the recognition of women as the people who belong to a particular social group rather than as individuals or members of a family. It will also require the general and unrestricted access to full and fair hearings as well as the documentation regarding the gender-based oppression, including laws and customs. The adoption of a human rights-based definition of persecution in the international human rights laws is of critical importance towards recognising gender-based abuse as one of the prohibited forms of persecution.
The membership of a particular social group is one of the five grounds of prohibited persecution that are stated in the 1951 refugee Convention. According to Myslinska (2015), the membership of an individual in a particular social group is difficult to ascertain, especially given the fact that the definition of a convention refugee is based on the five grounds. It usually consists of an identifiable group of people with shared characteristics, such as similar background, social class, occupational groups, sexual orientation, or cultural background. It is worth noting that the United States and Canada have recognised gender-based persecution that has allowed a number of female asylum seekers to gain asylum in the United States (Cutlip-Mason, 2012). These women have been victims of severe cultural practices such as female genital mutilation, family violence, forced marriages, and Islamic dress code requirements. The membership of a particular social group is very difficult to define due to the absence of clear legal standards.
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The inclusion of a particular social group as one of the prohibited grounds of persecution against international refugees does not adequate legal protection for gender-based forms of abuse. This is due to the difficulty to ascertain the membership of a particular social class, especially given the fact that there is no legal protection provided for the victims of the abuse. In addition to the gender-based prohibition, there exist other forms of prohibition such as religion, nationality, political opinion, and membership of a social group. However, there has been increasing changes in the immigration policies of a number of countries, such as Canada and the US, which have granted a number of individuals, especially women gain asylum in the foreign territories.