The impact of a separation or divorce in cases of domestic violence on refugee status determination
This article seeks to outline the impact of a separation/divorce of a woman from her husband on refugee status determination (RSD) in cases where women have experienced violence by their husband in their country of origin and/or after arriving in the receiving country. An overview of case law of the Austrian Federal Administrative Court will be provided and in the second part main gaps in practice are summarized.
Women’s access to effective (legal) protection and realization of their rights
Women who seek to be separated from their husband due to domestic violence might have to overcome nearly insurmountable structural and/or legal barriers in many of their countries of origin. The concept of marriage as a bond or an institution ensuring social structure and stability(1) is well acknowledged and might support different purposes such as conflict resolution, clarification of ownership or property or the (expected) harmony of a community in many countries of origin of asylum seeking women, while women’s or girls’ consent to marry might have been subordinate or unimportant.(2)
The concept of marriage as a guarantee for social stability is often reflected in traditional norms, social norms and/or customary law which are deeply rooted in society in different countries or regions e.g. Kanun in Kosovo/Northern Albania, Adat in Chechnya or the Pashtunwali in Afghanistan, as well as religious laws such as Hanafi law or Shafi law in Sunni dominated Islamic countries or Ja’fari law in Shia dominated Islamic countries.
The wish of a woman to be separated or divorced from her husband therefore might have far-reaching implications on the families, communities and society in a given country. Serious problems between married partners such as domestic violence, or the wish for separation or divorce might be perceived as “family matters” and might therefore be referred to traditional and/or religious informal or quasi-formal instances in countries with plural legal systems aiming at re-establishing the balance within the community and/or family (Jirga courts in Afghanistan, Salish courts in Bangladesh, Xeer system in Somalia, etc.).(3) Differentiation between the private and the public sphere in a given society might make it even more difficult for women to realize their rights, given that “family matters” like a wish for separation or divorce due to domestic violence in many cultural and religious contexts belong to the “private sphere”.(4) In addition, women might face multiple structural barriers to even access formal or informal – mostly male dominated – legal systems. Legal consequences, such as maintenance for children and wife or inheritance might remain unresolved or discriminatory against women and children. Far-reaching sanctions of (attempted) separation/divorce such as honour-related violence, forced child removal, harmful traditional practices, etc. might result out of a woman’s wish for separation.
On the other hand, formal legal systems might be perceived as ineffective, corrupt or might entail similar discriminatory provisions or sanctions. According to the Afghan Criminal Code, for instance, a woman who ran away from her husband committed the crime of “Zina”, which might be sanctioned with death by stoning.(5)
RSD and the impact of a separation/divorce from the husband in cases of gender-based violence
Gender-based violence as persecution according to Art 1 Geneva Refugee Convention
Hathaway and Foster translate the concept of “being persecuted” according to Art 1 UN 1951 Geneva Refugee Convention (GRC) as the sustained or systematic denial of basic human rights demonstrative of a failure of state protection and consider that “persecution” comprises two elements: serious harm and failure of state protection, connecting it to the international human rights framework.(6) Case law of Austrian Courts shows that gender-based violence (GBV), such as domestic violence, is acknowledged as “persecution” according to Art 1 UN GRC(7), which is also in line with Art 60 of the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention).
Perpetrators as non-state actors
Understanding “persecution” as serious violation of human rights outlines the role of a state to ensure and secure the rights laid down in international human rights conventions to entail an obligation to protect individuals from violations of their rights in horizontal relationships – e.g. relationships to family members as “non-state actors”.(8) The EU Qualification Directive also recognizes that actors of persecution include non-state actors, where protection is unavailable(9).
Case law of the Inter-American Court of Human Rights(10) as well as the European Court of Human Rights (ECHR)(11) strongly contributed to the evolution of the Due Diligence Principle and thus led to an increased acknowledgment of positive obligations of states to protect, prevent and prosecute individuals from (severe) violations by non-state actors. In consideration of the Due Diligence Principle, Hathaway and Foster however emphasize that the ultimate question in refugee law is not whether the home state has satisfied any particular standard(12) – but if the state is in fact able to protect against a risk of serious harm(13), such as domestic violence in spousal relationships. In line with this reasoning, the EU Qualification Directive provides that protection against persecution or serious harm must be effective.(14) According to Hathaway and Foster, the Due Diligence Principle is rather only of evidentiary value in assessing the willingness and capacity of the state to protect.(15) This approach goes along with the UNHCR Handbook, according to which a denial of protection by a given state may confirm or strengthen the applicant’s fear of persecution, and may, indeed, be an element of persecution.(16) It can be concluded that in cases with a reasonable likelihood that the woman who seeks separation or divorce due to domestic violence would face serious harm for a convention ground, refugee status ought to be recognized.(17)
Nexus to convention grounds according to Art 1 UN 1951 Geneva Refugee Convention
A divorced woman or a woman who seeks to be divorced might have a specific role in the society of the country of origin – resulting, for instance, from traditional values, social or religious norms. If a separated woman is perceived e.g. as a “woman who breaches social, traditional or religious values” or a “woman outside society” due to her specific social role, a nexus to one of the “convention-grounds” might be established and thus persecution due to one of the grounds mentioned in Art 1 GRC might be established.
The evolution of the concept of membership of a “particular social group” (PSG) as one of the five grounds enumerated in Art 1A (2) of the 1951 UN Refugee Convention has advanced the understanding of the definition of “refugee” as a whole. Two different approaches have been developed on how to determine what constitutes a PSG within the meaning of the 1951 GRC: The “protected characteristics” approach examines whether a group is united by an immutable characteristic or by a characteristic that is so fundamental to human dignity that a person should not be compelled to forsake it. The “social perception” approach examines whether or not a group shares a common characteristic which makes them a cognizable group or sets them apart from society at large. According to the UNHCR Guidelines No. 2, the two approaches ought to be reconciled.(18)
Along with the wish to divorce, there might be a political and religious dimension of a woman’s decision to leave and/or file for divorce from her husband. It might be perceived as a violation of traditional values, social or religious norms in her country of origin. Political and religious ideologies of states might be notoriously reflected, particularly in family law, civil law or criminal law.(19) Therefore, a nexus to religiously and/or politically motivated persecution could be established, which is also reflected in case law of the Austrian Administrative Court.
Overview of case law of the Austrian Federal Administrative Court
Case law of the Austrian Federal Administrative Court shows that a nexus to the convention ground “membership to a social group” could be established, in the cases of women who filed for divorce due to domestic violence – cases where state protection was considered ineffective to protect from (honour-related) violence in case of (a) return to the home country.
After a remittal from the Higher Administrative Court(20) , the Federal Administrative Court granted asylum in L511 1246498-1, decision of 27.05.2014 – the case of a women from Turkey who was re-unified with her husband in Germany after an arranged marriage in Turkey. The husband was abusive and violent, and the woman filed for a divorce in Germany. Her family in Turkey threatened to kill her, as the woman’s wish for divorce was perceived to be in breach of family honour. In this case, the Court clearly outlines that domestic violence amounts to persecution, if there are reasonable grounds to believe that the given state does not provide effective protection from the feared harm of the woman (honour-related violence by the family) due to the divorce she filed in Germany.(21)
In the case W135 1431607-1, decision of 24.11.2014, a woman fled from Chechnya after facing serious violence by her brothers who considered that she violated social and traditional norms and dishonoured the family due to her divorce from her husband who, according to her statement, treated her like a slave. Her daughter was forcibly taken away from her by the family of the ex-husband. The Court finally ruled that domestic violence amounts to persecution according to Art 1 GRC and in addition outlined that „returning women without family support and without support by male relatives” − as a particular social group − are at real risk of facing serious harm in case of return. Asylum was granted.
In the case W166 2007805, decision of 18.11.2014, a woman from Chechnya was cast away by her husband’s family as they wanted to hinder her claim for inheritance for herself and on behalf of her son. The woman filed for divorce after she and her son faced serious violence by her husband. The Court granted asylum and found that there are reasonable grounds to believe that the woman, as a “divorced woman without family support”, would not get effective protection from further harm in case of return.(22)
In the case W268 2127664-1, decision of 10.04.2017, the Federal Administrative Court granted asylum to a woman from Iraq who was forcibly married as a minor and faced constant violence by her husband as well as other family members. The Court found that she would not have effective protection in case of (a) return considering her situation as “separated woman without family support.”(23)
In the case L506 1438704-1, decision of 10.03.2015, the Federal Administrative Court found that an Iranian woman and her minor daughter might face honour-related violence from the husband of the woman, because both – woman and daughter – opposed the will of the husband to forcibly marry the daughter. The woman together with her daughter finally left the husband. In the legal reasoning, the Court referred to the likeliness of honour-related killing and found that the woman belongs to the particular social group of a „family member” referring to insufficient, ineffective protection in case of a return. Asylum was granted.(24)
There is well established case law of the Austrian Federal Administrative Court dealing with cases of women from Afghanistan who ran away from their husbands, acknowledging that the wish for (a) separation or divorce has a political and/or religious dimension as well.(25) Furthermore, in this context the Austrian Federal Administrative Court often followed the approach to investigate the “mindset” of the woman, specifically whether the woman has “internalized” so called “Western values” based on gender equality and the right to self-determination of a woman and other fundamental rights in order to establish the nexus to a PSG of “Westernized women.”(26)
Conclusions and gaps:
Assessing the willingness and ability to protect of the country of origin
Decision-makers often fail to recognize the social, cultural, economic and psychological dynamics of domestic abuse as well as the impact of a woman’s wish for separation or divorce in a given society as legally relevant for their assessment of state protection. There is a striking failure on this account when it comes to determining if it was reasonable to expect the woman to seek state protection. Furthermore, decision-makers might often focus on a formalistic assessment of a state’s ability and willingness to protect without properly taking into account that the state’s ability and willingness to protect is rather of evidentiary value.
However, information available on the country of origin is often scarce, given that particular traditional, religious or social norms are strongly rooted in the society of the country of origin. Furthermore, evidence assessment might be challenging as claimants are often not able to provide decision-makers with “hard facts”. Hence, assessing the credibility of the claim becomes even more important, considering that women might be traumatized, feel shame, fear, stigmatization or face reprisal.(27) Case law of the ECHR provides guidance on a shared burden of proof as soon as the claim might be substantiated enough.(28)
Contrary to UNHCRs’ position that there is no requirement to prove well-foundedness of the claim conclusively beyond doubt(29), case law shows that applicants who claim they are victims of gender-based violence often have to meet a particularly high threshold to prove the reasonableness of the claim and the plausibility of risks in case of (a) return to the country of origin.
Lack of awareness of judges, related state-authorities on possible impact of divorce
The UN 1951 Refugee Convention does not distinguish between persons who flee their country in order to avoid the prospect of being persecuted and those who believe they cannot safely return, when engaging in certain activities. For example, filing for divorce in the receiving country might result in serious (honour-related) violence in case of (a) return to the country of origin.
It is important to raise awareness on the impact of evidence and/or outcomes of court-procedures (family court, criminal court, etc.) and police investigations on RSD. Hence, legal expertise of decision-makers and legal advisors, inter alia about different standards of proof (e.g. “in dubio pro reo principle” in criminal procedures versus “analysis of probabilities” in asylum procedures) but also on complex legal questions related to divorce procedures (e.g. in cases of conflict of laws) as well as on cultural norms and stereotypes is important.
Right to private-life and the right to a family Art 8 ECHR
According to Art 34 para. 2 Austrian Asylum Act, asylum can be derived from a family member if the family member hasn’t been charged for a crime in Austria, if a continuation of a “family life” according to Art 8 ECHR is not possible in a safe third country and if no withdrawal procedure (against the holder of asylum) is pending. In cases of experienced domestic violence in Austria, practice shows that decision-makers tend to argue that asylum cannot be derived from the (ex-)husband as a family member as soon as a filed divorce has the force of law in Austria. Gaps prevail in cases where a divorce is not (yet) filed, not yet having the force of law.
By Marie-Luise Möller, PhD Candidate University of Vienna
Photo by Fancy Crave on unsplash.com
(1) Young, P. (1998), Individual Strategy and Social Structure: An Evolutionary Theory of Institutions, Princeton University Press.
(2) UN General Assembly, Report of the Office of the UN High Commissioner for Human Rights, 2. April 2014, A/HRC/26/22, Preventing and Eliminating Child, Early and Forced Marriage.
(3) Forsynth, M. (2007): A Typology of Relationships Between State and Non-State Justice Systems. In: Journal of Legal Pluralism and Unofficial Law vol. 56, pp. 67 – 112 (56), S. 67–112; Tamanaha, Brian Z., Understanding Legal Pluralism: Past to Present, Local to Global. Sydney Law Review, Vol. 29, 2007; St. John’s Legal Studies Research Paper No. 07-0080. Available at SSRN: https://ssrn.com/abstract=1010105.
(4) UNDP (2012), Informal justice systems – charting a course for human rights-based engagement, available at: http://www.undp.org/content/undp/en/home/librarypage/democratic-governance/access_to_justiceandruleoflaw/informal-justice-systems.html.
(5) UNAMA (2010), Harmful Traditional Practices and Implementation of the Law on Elimination of Violence against Women in Afghanistan, available at: https://unama.unmissions.org/sites/default/files/harmful_traditional_practices_english.pdf.
(6) Hathaway, J. C.; Foster, M. (2014): The law of refugee status. Second edition. Oxford University Press, p. 313-315.
Grahl-Madsen proposed the notion of “unendurability” in order to correctly interpret the concept of persecution (Grahl-Madsen, A., The Status of Refugees in International Law: Refugee character, A. W. Sijthoff, 1966); Art 9 para 2 EU Qualification Directive 2011/95/EU provides a non-exhaustive set of examples and connects the interpretation of persecution to the human rights framework. General Recommendation No. 19, the Declaration on the Elimination of Violence against Women and the Vienna Declaration and Programme of Action and the Beijing Declaration and Platform of Action contributed to recognizing that women are particularly vulnerable to violence in the private sphere at the hands of private actors; see also: Meyersfeld, B. (2012): Domestic violence and international law. Oxford, Portland: Hart.
(7)Higher Administrative Court, 13.11.2014, Ra 2014/18/0011 (legal reasoning on the acknowledgement of gender-based violence as persecution according to UN 1951 Refugee Convention; Higher Administrative Court (Verwaltungsgerichtshof), 24.03.2011, 2008/23/0176, Higher Administrative Court, 15.12.2015, Ra 2014/18/0118.
(8) Bailliet, Cecilia M. (2012): Persecution in the Home Persecution in the Home – Applying the Due Diligence Standard to Harmful Traditional Practices within Human Rights and Refugee Law. In: Nordic Journal of Human Rights 30 (1), S. 36–62.; Hasselbacher, Lee (2010): State Obligations Regarding Domestic Violence: The European Court of Human Rights, Due Diligence, And International Legal Minimums of Protection. In: Northwestern Journal of International Human Rights 8 (3), S. 190–215; Nykänen, Eeva (2012): Fragmented state power and forced migration. A study on non-state actors in refugee law. Leiden [Holland], Boston: Martinus Nijhoff Publishers.
(9) Art 6 EU Qualification Directive
(10) Inter-American Court of Human Rights: Velasquez Rodriguez v Honduras (1988); Maria da Penha v Brazil (2001).
(11) ECHR, Opuz v. Turkey, Appl No. 33401/02, decision of 09.09.2009; ECHR Bevacqua and S. v. Bulgaria, Appl.No. 71127/01, decision of 12.06.2008.
(12) Hathaway, J. C.; Foster, M. (2014): The law of refugee status, p. 313-315.
(13) Hathaway, J. C.; Foster, M. (2014): The law of refugee status, p. 314.
(14) Art 7 para 2 EU Qualification Directive.
(15) Hathaway, J. C.; Foster, M. (2014): The law of refugee status, p. 314.
(16) UN High Commissioner for Refugees (UNHCR), Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, December 2011, HCR/1P/4/ENG/REV. 3, para 98, available at: http://www.refworld.org/docid/4f33c8d92.html.
(17) Hathaway, J. C.; Foster, M. (2014): The law of refugee status, p. 318.
(18) UN High Commissioner for Refugees (UNHCR), Guidelines on International Protection No. 2: “Membership of a Particular Social Group” 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/02/02, para. 10, available at: http://www.refworld.org/docid/3d36f23f4.html.
(19) Amor, Abdelfattah (2009): Civil and Political Rights including the question of religious intolerance. Study on freedom of religion or belief and the status of women. E/CN.4/2002/73/Add.2, 24.04.2009 /CN.4/2002/73/Add.2).
Cumper, P. (2014): Multiculturalism, Human Rights and the Accommodation of Sharia Law. In: Human Rights Law Review 14 (1), S. 31–57. DOI: 10.1093/hrlr/ngt043.
(20) Higher Administrative Court, 2008/23/0176, decision of 24.03.2011.
(21) Federal Administrative Court, L511 1246498-1, decision of 27.05.2014.
(22) Federal Administrative Court, W166 2007805, decision of 18.11.2014.
(23) Federal Administrative Court, W268 2127664-1, decision of 10.04.2017.
(24) Federal Administrative Court, L506 1438704-1, decision of 10.03.2015.
(25) Federal Administrative Court, Decision of 11.06.2014, case nos. W178 1425310-1/13E, W178 1425311-1/11E, W178 1425312-1/12E, W178 1425313-1/8E; Higher Administrative Court 06.07.2011, 2008/19/0994, et al.
(26) Higher Administrative Court, decision of 28. 4. 2015, case no. Ra 2014/18/0141, Higher Administrative Court, decision of 22.03.2000, case no 99/01/0256, Higher Administrative Court, decision of 14.05.2002, case no 2001/01/0140; Higher Administrative Court, decision of 24.05.2005, case no 2004/01/0576, Higher Administrative Court, decision of 26.02.2002, case no 99/20/0509, Higher Administrative Court, decision of 17.09.2003, case no 99/20/0126, Higher Administrative Court, decision of 24.04.2003, case no 2000/20/0278.
(27) Constitutional Court 19.09.2014, U1327/2012 et al (considering traumatization while being interviewed, Chechnya);
see also: UN High Commissioner for Refugees (UNHCR), Beyond Proof, Credibility Assessment in EU Asylum Systems: Summary, May 2013, online accessible: http://www.refworld.org/docid/51a704244.html and Hungarian Helsinki Committee, Credibility Assessment in Asylum Procedures – A Multidisciplinary Training Manual , 2013, Volume 1, online accessible: http://www.refworld.org/docid/5253bd9a4.html.
(28) ECHR, FG v. Sweden, application no. 43611/11, decision of 23.03.2016.
(29) UN High Commissioner for Refugees (UNHCR), Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, December 2011, HCR/1P/4/ENG/REV; online accessible: http://www.refworld.org/docid/4f33c8d92.html: according to para 196 of the UNHCR Handbook, the possibility of a shift of the burden of proof to the state is emphasized: “if the applicant’s account appears credible, he [or she] should, unless there are good reasons to the contrary, be given the benefit of the doubt.”.
see also: UN High Commissioner for Refugees (UNHCR), Note on Burden and Standard of Proof in Refugee Claims, 16 December 1998, accessible online: http://www.refworld.org/docid/3ae6b3338.html