Joe Biden has promised to end Trump’s detrimental asylum policies, including those which aimed at preventing survivors of domestic violence from receiving asylum.
In 2018, Jeff Sessions as Attorney General under Trump “attempted to place a sweeping ban on domestic violence claims”, by reversing an immigration appeals court ruling that had granted asylum to a Salvadoran woman who claimed to have been sexually, emotionally and physically abused by her husband.
To qualify for refugee status under the 1951 Refugee Convention, a woman fleeing domestic violence must be able to demonstrate that the harm she faces amounts to persecution, and that she is being persecuted for one of the five Convention grounds. Sessions’ ruling had serious implications for how courts would be required to understand the terms of ‘persecution’ and ‘for reasons of’ within the Refugee Convention in relation to survivors of domestic abuse.
In 1999, the case of Islam and Shah established that the unwillingness of national authorities to intervene in the matter of domestic violence could be a significant indicator of a lack of state protection. In this way, if the perpetrators of violence (in this case, the husbands of the applicants) were able to abuse their wives in the knowledge that they would enjoy impunity from the State, then this could amount to persecution. In other words, lack of State protection amounts to persecution when it results in the effective protection of those who would abuse their wives. This view is supported in UNHCR Guidelines which state that “[i]f the State, as a matter of policy or practice, does not accord certain rights or protection from serious abuse, then the discrimination in extending protection, which results in serious harm inflicted with impunity, could amount to persecution.”
Sessions’ statement reversing the judgement in ‘Matter AB’ (a case dealing with the refugee application of a survivor of domestic abuse, named using the initials of the applicant) was also a rejection of the findings of ‘Matter ARCG’ (another, similar case), in which refugee status had been granted to a Guatemalan woman who had been the victim of ten years of domestic violence. Sessions argued that “[a]n applicant ...must show more than the government’s difficulty controlling private behavior [but] that the government condoned the private actions ...”. In Matter ARCG, however, the applicant had contacted the police several times to report her abuse, but was told that they would not interfere in a marital relationship. Surely the fact that the police told the applicant they were “not willing to interfere” demonstrates much more than “difficulty controlling private behaviour”, but indeed a condoning of the private actions through a deliberate failure to protect the victim? And, in this way, the applicant surely meets the test for establishing persecution as set out in the case of Islam and Shah.
‘For reasons of…’
The Board of Immigration Appeals found in 2016 that the applicant in Matter AB was part of a ‘particular social group’ because women in El Salvador are often unable to leave violent relationships and their government has not been able to protect them. This reading is confirmed by judgements in Islam and Shah, whereby the applicants were said to belong to a ‘particular social group’ simply defined as ‘being women in Pakistan’. Lord Hoffman stated in his judgment on the case that “the legal and social conditions [in Pakistan] which left [Mrs Islam] unprotected against violence by men were discriminatory against women.” According to Hoffman, a woman in Pakistan who is not beaten by her husband is no more protected from domestic violence than a woman who is, or indeed one who flees the violence. The crux is that the social and legal conditions which left the applicants unprotected would be the same for all women who found themselves in abusive relationships. This is confirmed by UNHCR, who have reasoned in ExCom Conclusion no. 39 (1985) that “women asylum-seekers who face harsh or inhuman treatment due to their having transgressed the social mores of the society in which they live may be considered as a ‘particular social group’.”
Sessions, however, attempted to narrow the scope for qualification as a ‘particular social group’, specifically to exclude those, as he put it, “pertaining to domestic violence or gang violence perpetrated by nongovernmental actors”. In this way, the ruling reversed previous developments in terms of how both ‘persecution’ and membership of a ‘particular social group’ should be understood with relation to survivors of domestic violence, thus excluding those who had previously qualified for protection.
In his first few weeks in office, Biden has already used the issue of immigration to win praise from human rights advocates and make headlines, by shutting down the wall project and promising a pathway to citizenship for the estimated 11 million people who lack legal status in the US. There is, however, a lot more to be done. Domestic violence has increased worldwide amid the coronavirus pandemic, with the number of women killed in Mexico up by 8 per cent over the same time period last year. Biden must urgently return to the interpretation of the Refugee Convention, supported by UNHCR statements and case law, which requires survivors of domestic abuse to be recognised as refugees when the state to which they belong refuses to protect them from violent partners.
Rose Bewick is currently studying for a masters in Refugee Protection and Forced Migration at the University of London. She is also training to become an immigration adviser, and has previously worked on the Syrian Resettlement Programme.