Women and Justice: Keywords

Legislation

Schweizerisches Strafgesetzbuch/Swiss Penal Code, Article 66a: Mandatory expulsion of foreign nationals for female genital mutilation and certain other offenses (2019)

Female genital mutilation or female genital cutting, International law, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

Article 66a provides that a foreign national shall be expelled from Switzerland for a period of five to 15 years if they are convicted of, among other things, female genital mutilation (Penal Code Art. 124, para. 1), forced marriage or forced registered partnership (Penal Code Art. 181a), trafficking in human beings (Penal Art. 182), sexual acts with children (Penal Code Art. 187, para. 1), sexual coercion (Art. 189), rape (Art. 190), sexual acts with persons incapable of judgement or resistance (Art. 191), encouraging prostitution (Art. 195), aggravated pornography (Art. 197, para. 4, second sentence – pornography containing genuine sexual acts with minors), genocide (Art. 264), crimes against humanity (Art. 264a), serious violations of the Geneva Convention of 1949 (Art. 264c), and other war crimes (Art. 264d and 264h). Unofficial English translation available here. 



Law on Employment and Work of Foreigners (2015)

Employment discrimination, Gender discrimination, LGBTIQ

Article 4(6) of the Law on Employment and Work of Foreigners provides that when employing a foreigner, the employer must not put the job seeker in less favourable position due to race, color of skin, gender, age, health condition, that is, disability, religious, political or other convictions, trade union membership, national or social background, family status, property status, sexual orientation, or due to other personal circumstances. (English translation available from the ILO through the external link.)



Law establishing a federal Center for the analysis of the migratory flows, the protection of the fundamental rights of foreigners and the fight against trafficking in human beings (Amendments to the Law of 15 February 1993) (2013)

Employment discrimination, LGBTIQ, Trafficking in persons

The Law of 15 February 1993 created the Centre for Combating Discrimination and Racism. Over the years, the scope of the Centre's anti-discrimination work expanded to include other forms of discrimination, like sexual orientation discrimination. In 2013, it was renamed the Interfederal Centre for Equal Opportunities and its mandate formally included the rights of foreigners and their humane treatment. In 2015, Myria (the Federal Migration Centre) split off to focus on human trafficking and protecting the human rights of migrants and foreigners. The Interfederal Centre was renamed Unia in 2016 and continues to focus on anti-discrimination and equal opportunity advocacy. Unia can take legal action in instances of discrimination based on race, sexual orientation, disability, age, religion, and other criteria of discrimination (e.g., health, wealth, political beliefs, physical characteristics, etc.). Myria may also take legal action on instances of discrimination within its mandate. More information about Unia, its work, and anti-discrimination resources is available on its website (information available in English, Français, Nederlands, and Deutsch). More information about Myria, its work, and anti-discrimination resources is available on its website (also in En, Fr, Ne, and De).


Domestic Case Law

RRT Case No. 1101038 Refugee Review Tribunal (2011)

Female genital mutilation or female genital cutting, Forced and early marriage, Harmful traditional practices

The applicant appealed a decision denying her a protection visa. The applicant demonstrated evidence that if she returned to Uganda, she would be forced to undergo FGM.  The applicant was a member of the Sabiny tribe, meaning her father’s family had the right under Ugandan law to take her away from her mother and compel her to obey traditional practices, including FGM. She further testified that if she returned to Uganda there would be a risk of abuse as she was a Christian, which was not accepted in her family village. Furthermore, when she was 12, her family found a potential husband for her, a witchdoctor who believed in Satan and professed sacrificing people to achieve a particular objective. She was therefore afraid that if she returned to Uganda, she would be forced to marry this individual, who believed that sacrificing people could bring him power and money. The tribunal found that the applicant was a person to whom Australia owed protection obligations.



RRT Case No. 0808751 Refugee Review Tribunal (2009)

Female genital mutilation or female genital cutting, Harmful traditional practices

The applicant sought a review of a decision to refuse her a protection visa under s65 of the Migration Act 1958. The application was refused because the applicant was allegedly not a person to whom Australia had protection obligations arising out of the Refugees Convention. The tribunal investigated the history of the victim and her claims of substantial risk of being forced to undergo FGM if she returned to Uganda. The evidence presented included the fact that the process is not illegal in Uganda, that her father is relatively high-ranking in a tribe that finds FGM extremely important, and that she has in the past been abducted in order to be forced to undergo the process. She changed schools and stayed with relatives, but those means of escape have not worked as eventually her father and his tribe were always able to find her. As such, the tribunal concluded that there was a risk of serious harm if the applicant were forced to return to Uganda. It also concluded that she does satisfy the s36(2)(a) of the Migration Act and was therefore a person to whom Australia has protection obligations.



Bah v. Mukasey United States Court of Appeals for the Second Circuit (2008)

Female genital mutilation or female genital cutting, Gender-based violence in general, Harmful traditional practices, International law

Three plaintiffs from Guinea who underwent female genital mutilation (“FGM”) appealed decisions from the Board of Immigration Appeals (“BIA”), which had denied their claims for relief and withholding of removal under the Convention Against Torture based on FGM. An applicant who demonstrates past persecution benefits from the presumption that he or she faces future persecution, unless the government shows either a change of circumstances such that the applicant’s life or freedom would not be threatened upon return to his or her native country, or a reasonable possibility of internal relocation within the country. Here, the BIA found that the presumption was automatically rebutted because the FGM had already occurred. On appeal, the Second Circuit held that the fact that an applicant had already undergone FGM cannot, in and of itself, rebut the presumption that her life or freedom will be threatened in the future. In doing so, the Second Circuit found that the BIA had committed two significant errors in its analysis. First, it assumed that FGM is a one-time act without placing the burden on the government to show that the individuals in this case are not at risk of further mutilation. Second, to rebut the presumption, the government must show that changed conditions in the country obviate the risk to life or freedom related to the original claim; it is not enough that the particular act of persecution suffered by the victim in the past might not reoccur. The Second Circuit accordingly vacated the BIA decisions and remanded the cases.



Kone v. Holder United States Court of Appeals for the Second Circuit (2010)

Female genital mutilation or female genital cutting, Harmful traditional practices, International law

The plaintiff, who was from Côte d'Ivoire, appealed a Board of Immigration Appeals (“BIA”) decision affirming the denial of her asylum application, withholding of removal, and protection under the Convention Against Torture. Her asylum claim was based on female genital mutilation (“FGM”) and her fear that her daughters would be subjected to FGM if she was removed. An applicant who demonstrates past persecution benefits from the presumption that he or she faces future persecution unless the government rebuts that presumption by showing that there is either a change of circumstances such that the applicant’s life or freedom would not be threatened upon return to his or her native country, or a reasonable possibility of internal relocation within the country. Here, the BIA found that the plaintiff’s several voluntary return trips to her native country prior to her application for asylum rebutted that presumption and undermined her credibility. The Second Circuit disagreed, finding that a safe return on one occasion does not preclude potential future harm and that the regulation does not require an applicant to show that she would immediately be persecuted upon return. Similarly, the Second Circuit also found that an applicant’s return trips are not sufficient to undermine an applicant’s credibility. The Second Circuit accordingly vacated the BIA decision and remanded the case, noting that the agency may wish to consider the application for “humanitarian asylum.”



Rreshpja v. Gonzalez United States Court of Appeals for the Sixth Circuit (2005)

International law, Sexual violence and rape, Trafficking in persons

The plaintiff-appellant, a citizen of Albania, arrived in the United States with a fraudulently obtained non-immigrant visa after a man attempted to abduct her in her home country. The Immigration and Nationalization Service initiated removal proceedings against her. During those proceedings the plaintiff requested either a grant of asylum or the withholding of removal and protection under the Convention Against Torture, arguing that she is at risk of being forced to work as a prostitute if she were to return to her home country. The immigration judge denied her application, as did the Board of Immigration Appeals. The Sixth Circuit affirmed the denial because the plaintiff was unable to show that she was a member of a particular social group that faced persecution in her home country.



Kalaj v. Holder United States Court of Appeals for the Sixth Circuit (2009)

Sexual violence and rape, Trafficking in persons

The plaintiff-appellant, an Albanian citizen who entered the United States on a non-immigrant visa, fled her home country after facing three attempted kidnappings that she believed would have led her into forced prostitution. After escaping the third attempt, her uncle arranged for her to obtain a fake passport to enter the United States. After she applied for asylum with the Immigration and Nationalization Service, she was notified that she was subject to removal as an alien not in possession of valid entry documents. Both an immigration judge and the Board of Immigration Appeals denied her application for asylum. The Sixth Circuit affirmed these denials, finding that the plaintiff was unable to demonstrate that she was a member of a persecuted social group and unable to show that the Albanian government was unwilling or unable to protect her.



Minister for Immigration and Citizenship v. SZMDS High Court of Australia (2010)

Gender-based violence in general, International law, LGBTIQ

The respondent, an allegedly homosexual citizen of Pakistan, arrived in Australia on a visitor visa in 2007 and applied for a protection visa. To be recognized as a refugee, the respondent had to show that he had a well-founded fear of being persecuted due to his race, religion, nationality, membership of a particular social group, or political opinion. The respondent argued that, as a homosexual man, he belonged to a particular social group that was persecuted and subject to harm in Pakistan. The respondent’s protection visa application was initially denied, and the Refugee Review Tribunal (Tribunal) affirmed this decision. The Tribunal found that while homosexuals in Pakistan constitute a protected group, the respondent was not actually a homosexual because he safely make a three-week visit to Pakistan before traveling to Australia and failed to seek asylum on a recent visit to the UK.  On appeal, the Federal Court found that the Tribunal’s decision was based on illogical reasoning. The Minister for Immigration and Citizenship appealed the Federal Court’s decision to the High Court. In a majority decision, the High Court overturned the Federal Court’s decision, finding that the Tribunal’s reasons for not believing the respondent was actually a homosexual were sound.



Appellant S395/2002 v. Minister of Immigration and Citizenship High Court of Australia (2003)

Gender-based violence in general, International law, LGBTIQ

The appellants, both homosexual male citizens of Bangladesh, arrived in Australia and applied for protection visas. To be recognized as refugees, the appellants had to show that they had a well-founded fear of being persecuted due to their race, religion, nationality, membership in a particular social group, or political opinion. The appellants argued that they belonged to a “particular social group” that was subject to discrimination and harm in Bangladesh by virtue of their homosexuality. A delegate of the Minister for Immigration and Citizenship initially determined that because the appellants had conducted their relationship in a discreet manner in Bangladesh, they would suffer no serious harm if they returned to Bangladesh and continued to keep their relationship secret. For this reason, appellants were initially denied protection visas, and the Refugee Review Tribunal affirmed this decision. The appellant’s appealed to the Federal Court for judicial review and the primary judge dismissed the application, agreeing with the delegate’s reasoning about the discreetness of the appellants’ relationship. Appellants appealed to the Full Federal Court, which also dismissed their appeal. Appellants then appealed to the High Court, which granted them special leave to appeal. The High Court considered whether the Tribunal had erred in requiring or expecting the appellants to behave discreetly in order to avoid persecution. In a four-to-three decision, the High Court found that the Tribunal had erred because it improperly split the social group of homosexual men into two groups, discreet and non-discreet. The High Court held that the expectation that a person take reasonable steps to avoid persecutory harm, does not include the need to be discreet about sexuality, especially given that the appellants may have only been acting discreetly due to the persecution of openly homosexual men in Bangladesh. The case was referred back to the Tribunal for redetermination.



Detention Action v. Secretary of State for the Home Department (SSHD) High Court of the United Kingdom and Northern Ireland (2014)

Sexual violence and rape, Trafficking in persons

DFT, or Detained Fast Track, involves the placement of asylum seekers in detention while the outcome of their claim is determined. The claimants identified numerous issues in the DFT system with respect to female asylum-seekers and asserted that “the [DFT] system as operated created an unacceptable risk of unfairness for asylum seekers” and especially for vulnerable populations. These populations include pregnant women and trafficked women, who may find the detention period traumatic and who are likely to present complex cases. The Court held “that the DFT as operated carries with it too high a risk of unfair determinations for those that may be vulnerable applicants,” but emphasized that detention periods in and of themselves are not unlawful.



Claimant (on her own behalf and on behalf of her minor children) v. the Minister for Immigration and Asylum District Court of the Hague (2010)

Gender violence in conflict, Gender-based violence in general, Harmful traditional practices

The claimant, of Tajik descent, had a high school diploma, was an active member of a left-leaning political organization, and was a volunteer teacher for girls while she lived in Afghanistan. The Taliban arrested a friend of the claimant who worked for UNICEF and had also pressured the claimant’s family to provide details about her whereabouts. Once the Taliban occupied her village, she and her husband hid with a relative before traveling to the Netherlands. In 2008, the claimant filed an application on behalf of herself and her minor children (two daughters and a son) under the Aliens Act 2000, citing Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The claimant argued that they were subject to inhumane treatment if they were forced to return to Afghanistan. The District Court noted that the policy relied upon did not take into account the situation of Westernized women in Afghanistan, who were at risk just having lived in Westernized society. The District Court noted that the evidence showed that not only was security a risk to all in Afghanistan, but that treatment of women and girls had deteriorated even further since the rejection of the 2003 application. Finally, the District Court referred to reports submitted in the case, noting that women returning to Afghanistan from Europe or Iran are perceived as having violated religious and social norms and, as a result, are subject to honor crimes, domestic violence, isolation and other forms of punishment. The District Court found the claimant’s appeal to be well-founded, destroyed the contested decision, and ordered the government to issue a decision taking the District Court’s findings into consideration.



Claimant v. the Minister of Justice District Court of the Hague (2010)

Gender violence in conflict, Gender-based violence in general, Sexual violence and rape

The claimant was born in Somalia and left the country when her home was destroyed and four men attempted to rape her. The claimant sought residence in the Netherlands as a refugee under Immigration Act 2000. She argued that women in Central and Southern Somalia were systematically exposed to inhuman treatment. The claimant submitted reports that abuse and rape of women, by civilians and armed groups, was frequent, and that displaced women were particularly vulnerable during their flight. Gang rape was widespread, and victims (including young girls and boys) were selected at random. Further, rape is almost never prosecuted and the victims are discriminated against because they are seen as “unclean.” The report further stated that women in Somalia do not have access to justice and receive no protection from authorities. Human Rights Watch and UN reports also described women as suffering the brunt of abuse and repression cultivated by al-Shabaab’s decrees, including forced marriage, female genital mutilation (“FGM”) and gender-based violence. The District Court opined that women are in a vulnerable position in Central and Southern Somalia and, therefore, run the risk of suffering violence and human rights violations, and cannot obtain effective protection. They are therefore a group worthy of protection from inhuman treatment and torture.



Claimants (on their own behalf and on behalf of their minor children) v. the Secretary of State for Justice, Immigration and Naturalization Service District Court of the Hague (2010)

Domestic and intimate partner violence, Gender discrimination, Gender-based violence in general, Harmful traditional practices, Honor crimes (or honour crimes), Sexual violence and rape

The claimants, on behalf of themselves and their two minor daughters, sought residence permits under the Aliens Act 2000. The claimants stated that if they returned to Afghanistan, the mother and daughters would be subjected to inhuman treatment under Article 3 European Convention on Human Rights. The claimants noted that women were systematically disadvantaged and discriminated against in Afghanistan. Women were subject to violence throughout the country, including the claimants’ area of origin, and had no protection from the government (if they even had the opportunity of access to the courts). Women suffer domestic violence, sexual violence, honor crimes, and arranged marriage. Women do not have the same rights as men (even though the constitution states that men and women are equal), are seen as property, and have little to no access to education or health care. The District Court found the mother’s and daughters’ appeals well-founded and ordered the government to consider the applications.



Claimant (on her own behalf and on behalf of her minor children) v. the State Secretary of Justice District Court of the Hague (2008)

Female genital mutilation or female genital cutting, Harmful traditional practices

The government had denied three of the claimant’s applications for residence under the Aliens Act 2000. The appeal stemmed from the dispute about whether the claimant’s minor daughter was at risk for inhuman treatment (specifically, FGM) in Chad under the European Convention on Human Rights. The claimant argued that her daughter was, as a Hadjarai woman, “very strongly” at risk of FGM, and she herself had been circumcised. The government denied that FGM is a matter of tradition, ethnicity, and religion and claimed that the claimant’s story was inconsistent with what was known about FGM in Chad. The District Court found that the government’s decision was subject to review referring to a U.S. Department of State report that stated that though violence against women and FGM were prohibited by law in Chad, FGM was widespread, deeply rooted in tradition and rarely prosecuted. Further, 93% of Hadjarari women were circumcised. The District Court ordered the government to decide the claimant’s application in light of the Court’s findings.



In re A-T United States Executive Office for Immigration Review (EOIR) (2011)

Female genital mutilation or female genital cutting, Forced and early marriage, Gender discrimination, Harmful traditional practices, International law, Sexual violence and rape

After over six years in immigration court, an immigration judge reversed his previous judgment to give a woman from Mali asylum protection in the United States. As a child in Mali, the woman was subjected to female genital mutilation (FGM). She studied in the United States; her father then ordered her back to Mali to marry her first cousin, despite the fact that she already had three children in the U.S. Fearing forcible marriage and rape for herself and forced FGM for her daughters, the woman applied for asylum. The immigration court denied her request initially in 2004. On appeal, the Board of Immigration Appeals reasoned that FGM is a one-time occurrence, making future persecution unlikely. However, in 2008, the Attorney General intervened, pointing to the interconnectedness of sexual violence and the possibility of future persecution. The Attorney General directed that the case be reconsidered, and after a new trial, the judge granted the woman asylum, indicating that the threat of spousal rape alone was enough to constitute persecution. The case is important for asylum applicants, because violent acts like FGM are no longer to be considered isolated events unlikely to lead to further persecution.



Erdogu v. Canada Federal Court of Canada (2008)

Gender-based violence in general, Honor crimes (or honour crimes)

Ms. Erdogu, a Turkish national, fled to Canada and filed a claim for refugee protection to escape persecution for her political and religious activity in Turkey. Because she was both an ethnic and religious minority (Kurdish/Alevi), she was arrested in Turkey on a number of occasions, during which she was detained, interrogated, beaten, and sexually molested. Further, she claimed to be at risk because a violent ex-boyfriend had informed her father of the former couple’s sexual relationship, leading her father to declare his intent to kill her in order to preserve the family’s honor. Ms. Erdogu’s application was denied, and she applied for judicial review of that decision. The judge noted that the documentary evidence clearly demonstrated continuing problems with the Turkish government’s efforts to address the issue of honor killings, finding that the officer who had made the initial decision on Ms. Erdogu’s case had failed to consider such evidence. Because of the high risk of honor killing that Ms. Erdogu faced, and due to the officer’s failure to justify his denial of her initial application for protection, the judge ruled that judicial review would be allowed, and that the decision on Ms. Erdogu’s application was to be set aside and redetermined by another officer.



Perdomo v. Holder United States Court of Appeals for the Ninth Circuit (2010)

Femicide

In 1991 Lesly Yajayra Perdomo (“Perdomo”), a citizen and native of Guatemala, joined her mother in the United States. In April 2003 the Immigration and Naturalization Service charged her as removable because she unlawfully entered the United States in 1991. Perdomo conceded removability but requested asylum, withholding of removal, and relief under the United Nations Convention Against Torture. Perdomo sought asylum because of her fear of future persecution as a member of a particular social group of “women in Guatemala between the ages of fourteen and forty.” Perdomo explained she was fearful because of: (1) the large number of women killed in Guatemala; (2) the failure of the Guatemalan government to respond appropriately; and (3) the lack of explanation for the killings. The immigration judge denied Perdomo’s requests. The Board of Immigration Appeals (the “BIA”) affirmed the denials and rejected the particular social group definition, “women in Guatemala between the ages of fourteen and forty” and Perdomo’s revised group definition, “all women in Guatemala,” as too broad to qualify for protection. The Ninth Circuit granted Perdomo’s petition for review and held that prior case law established that, “women in a particular country, regardless of ethnicity or clan membership, could form a particular social group.” The court noted that the size and breadth of the group, “all women in Guatemala,” did not preclude it from qualifying as a protected social group and that the BIA erred when it held to the contrary. The court remanded the case to the BIA to determine whether “all women in Guatemala” is a particular social group and, if so, whether Perdomo qualified for asylum.



M.Z. (Rape, Stigma, UNHCR Advice) Kosovo UK Asylum and Immigration Tribunal (2002)

Sexual violence and rape

The applicant arrived in the UK in January 2000, claiming asylum on arrival, and appealed a decision to have her removed to Kosovo following the refusal of her claim to asylum after she was raped by a Serbian soldier.  The Tribunal acknowledged that adequate facilities for rape victims exist in Kosovo but in light of the stigma attached to rape victims and the applicant's very real fear that her husband would leave her on finding out about the rape, granted her request for asylum.



R. v. Immigration Appeal Tribunal and Another Ex Parte Shah (A.P.) House of Lords (1999)

Domestic and intimate partner violence

The two conjoined appeals both involve married Pakistani women who were forced by their husbands to leave their homes and seek asylum in the UK as refugees on the grounds that they fear being falsely accused of adultery and thus in danger of flogging or being stoned to death on being returned to Pakistan.   The Lords granted the appeals, giving the appellants refugee status, on the ground that the appellants are part of the particular group as women in Pakistan who fear being accused of adultery.



International Case Law

A.Sh., et al. v. Switzerland Committee Against Torture (2018)

Custodial violence, International law, Sexual violence and rape

A.Sh., his wife Z.H. and their children, ethnic Chechens of the Muslim faith with Russian citizenship were residing in Switzerland and awaiting deportation to the Russian Federation.  A.Sh.’s brother-in-law was a leader of a Chechen insurgent group who went into hiding.  A.Sh. helped his sister and was arrested and beaten for collaborating with insurgents.  He left the Russian Federation with his eldest son for Switzerland.  When the police searched for him, they interrogated Z.H. about his whereabouts and then closed his shop and would not allow her to re-open it, stating it was her husband’s.  The police came to her house, searched it, and took her passport, after which the commanding officer raped Z.H.  She and her traumatize younger son went to live with her parents, and then left the Russian Federation illegally by car for Switzerland, where the complainants’ request for asylum was denied.  The Committee considered complainants’ claim that, if they were returned to the Russian Federation, they would be exposed to torture, and Switzerland would be in violation of article 3 of the Convention.  The Swiss authorities questioned complainants’ credibility and argued that the possibility they could settle in another region of the Russian Federation, other than Chechnya, meant they were not likely to be exposed to serious risk of treatment contrary to the Convention in case of return.  The Committee addressed the claim that because Z.H.’s rape was not raised at the time of the first asylum procedure, the complainants lacked credibility, stating that Z.H. and her husband had been subjected to torture and suffered post-traumatic stress disorder according to the medical reports issued by Swiss psychiatrists and psychologists.  Accordingly, since complete accuracy is seldom to be expected from victims of torture, the delay in reporting the sexual abuse did not undermine Z.H.’s credibility.  In this connection, the Committee recalled prior its prior holdings that rape constitutes “infliction of severe pain and suffering perpetrated for a number of impermissible purposes, including interrogation, intimidation, punishment, retaliation, humiliation and discrimination based on gender”, and that in other cases it has found that “sexual abuse by the police … constitutes torture” even when it is perpetrated outside of formal detention facilities.”  The Committee also rejected the Swiss authorities’ reliance on “internal flight,” citing the Russian requirement that Russian nationals must register within 90 days of arriving in a new place of residence and that this information will be accessible to Chechen authorities.  By rejecting the asylum application based on the assumption of the availability of an internal flight alternative and without giving sufficient weight to whether they could be at risk of persecution, the Committee determined that Switzerland failed its obligations under article 3 of the Convention.  It concluded that Switzerland could not forcibly return complainants to the Russian Federation or any country where there was a risk they could be returned to the Russian Federation.  Switzerland was given 90 days to respond with the steps it planned to take.



M.P. v. Denmark Human Rights Committee (ICCPR) (2017)

Domestic and intimate partner violence, International law

M.P. originally was from Sri Lanka, and of Tamil ethnicity and the Hindu faith.  She claimed her family had strong ties with the Liberation Tigers of Tamil Eelam (“LTTE”).  Her father was killed and several of her brothers were subjected to violence due to the connection.  To gain protection, M.P. illegally entered Switzerland where she met her former husband and father of her two children.  Her husband was violent and abusive, and was convicted of domestic violence against her for which he was sentenced to three years imprisonment.  He was to be expelled to Sri Lanka upon his release, but forced M.P. and the children to accompany him to Denmark and make false statements to seek asylum.  M.P. was afraid of her husband, who physically assaulted her and the children and threatened to kill her and take their children away if she did no support his false version of reasons for seeking asylum.  He claimed he had been detained by the military and that M.P. had been sexually abused by the Sri Lankan army.  Danish authorities denied the family’s asylum request finding that M.P.’s husband had limited associations with LTTE.  He was returned to Sri Lanka after he assaulted another person in Denmark.  After he left, M.P. felt she could safely present the true grounds for seeking asylum in Denmark.  However, her application was rejected.  The Committee considered M.P.’s claim that forcibly removing her and her children would violate Denmark’s obligations under article 7 of the Covenant because she would be detained by authorities and beaten, raped and tortured due to her family’s alleged affiliation with LTTE.  The Committee noted its jurisprudence that the State’s role is to review and evaluate facts and evidence to determine whether a risk exists, unless the evaluation was clearly arbitrary or amounted to a denial of justice.  It then noted the findings of the Danish authorities that M.P. had not raised her family’s affiliation with LTTE before the Swiss authorities when seeking residence.  Further, it noted the finding that current background material on Sri Lanka provided no basis for believing that Tamils such as M.P. with no affiliation with LTTE whose family members had not been high-profile members of LTTE would risk persecution or abuse justifying asylum merely based on ethnicity.  Regarding claims by M.P. of alleged risk of harm by her former husband in Sri Lanka, the Committee noted that M.P. merely took issue with Denmark’s conclusions that she could seek protection if needed from her husband from Sri Lankan authorities.  The Committee concluded that the information provided did not demonstrate that M.P. would face a real and personal risk of treatment contrary to article 7 if she were deported to Sri Lanka.



D.T. v. Canada Human Rights Committee (ICCPR) (2017)

Harmful traditional practices, Honor crimes (or honour crimes), International law

D.T., a Christian born in Nigeria, married a Muslim.  Her parents were against the marriage, and when she was pregnant, they threatened to kill the baby.  After her husband died, she was forced to drink the water used to bathe his corpse and to sleep in the room with the corpse for three days.  With help, she escaped and traveled to Canada where she gave birth to her son.  Her son suffers from conditions, including a heart murmur, malformation of his meniscus and attention deficit hyperactivity disorder (ADHD).  D.T. applied for asylum, but Canada denied her application because it found that she failed to provide materials or documentation establishing her identity and her claims.  Canada dismissed her application for judicial review and ordered her to leave Canada with her seven-year-old son.  To the Committee, D.T. argued that Canada’s decision violated articles 17 and 23(1) of the Covenant, that her son is also the victim of a violation of article 24(1), and that they face a risk of irreparable harm if deported to Nigeria, which has education and health care facilities inadequate to meet her son’s needs.  Further, if her son remained in Canada as a citizen, it would result in family separation from his sole caregiver.  The Committee concluded that given that there was no evidence that that the child had any alternative adult support network in Canada, it was foreseeable that D.T. would take her son to Nigeria.  Therefore, Canada did not adequately explain why its legitimate objective in upholding its immigration policy should have outweighed the best interests of the D.T.’s child nor how that objective could justify the degree of hardship that confronted the family because of the decision to deport the mother.  Acting under article 5(4) of the Optional Protocol, the Committee found the removal resulted in arbitrary interference with the right to family life in breach of article 17(1) and article 23(1) of the covenant with respect to D.T. and her son, and that it violated article 24 due to a failure to provide her son with the necessary measures of protection owed to him by Canada.  Canada was ordered to provide D.T. with an effective re-evaluation of her claims, based on an assessment of the best interests of the child, including his health and educational needs, and to provide her with adequate compensation.  The Committee stated that Canada also is under an obligation to avoid similar violations in the future and to publish the Views and have them widely disseminated in Canada in French and English. 



R.R. v. Denmark Human Rights Committee (ICCPR) (2017)

Domestic and intimate partner violence, International law

R.R., an Iranian national, had left Iran for Italy with her husband and children due to her husband’s activities for the Kurdish Komeleh party.  While in Italy, they lived in an asylum center and then were provided with a dwelling.  They had difficulty paying rent as they could not find steady employment and her husband became addicted to narcotics.  Her husband subjected her and the children to domestic violence and she was forced into prostitution by her husband.  She left her husband and took her children.  She was diagnosed with bipolar disorder, depression, and cervical cancer, and received help from friends to pay for surgery.  Her youngest son suffered from heart disease.  She and her children left Italy and sought asylum in Denmark.  Danish authorities rejected her asylum application, finding that Italy should serve as her first country of asylum.  R.R. claimed that by forcibly returning her and her two children to Italy, Denmark would violate its rights under article 7 of the Covenant.  She stated that her family unit were particularly vulnerable as she was a single mother, she and her son required medical attention, and they risked facing inhuman and degrading treatment upon return to Italy, including a risk of homelessness and destitution, with limited access to the necessary medical care.  The Committee, acting under article 5(4) of the Optional Protocol, decided that the deportation of R.R. and her two children to Italy without proper assurances from Italy that it would renew her residence permit and issue permits for her children and that it would receive her family in conditions appropriate for her children’s age and the family’s vulnerable status to enable them to remain in Italy, would violate their rights under article 7 of the Covenant.  The Committee required Denmark to review her claim in consideration of its obligations under the Covenant and the need to obtain proper assurances from Italy.  While considering her request for asylum, the Committee requested that Denmark not deport her and her children.



Hashi v. Denmark Human Rights Committee (ICCPR) (2017)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Gender discrimination, Gender violence in conflict, International law

Hibaq Said Hashi left Somalia for fear of persecution by Al-Shabaab.  She was divorced from one man and married to a second man, but her former husband claimed they were not divorced and she was having sexual relations with another man, which caused Al-Shabaab to call for her to be stoned.  Her father helped her leave Somalia and then he was killed, and her current husband was sentenced to death.  She traveled to Italy by boat, was registered and determined she was pregnant, but she faced poor conditions in Italy so she left for Sweden to have her baby.  When she learned Swedish authorities planned to send her back to Italy, she and her son moved to Denmark where she applied for asylum.  She claimed that if she returned to Somalia she would be persecuted and if she returned to Italy she would face harsh living conditions and would not be able to provide for her son’s basic needs.  She was ordered to leave Denmark to return to Italy, which Denmark considered her first country of asylum.  Upon appeal, the Committee, acting under article 5(4) of the Optional Protocol, decided that the removal of Hibaq Said Hashi and her son to Italy without any assurances from Italy that it would receive her and her son in conditions suitable for her child’s age and family’s vulnerable status would violate their rights under article 7 of the Covenant.  The Committee required Denmark to review her claim in consideration of its obligations under the Covenant and the need to obtain effective assurances from Italy.  While considering her request for asylum, the Committee requested that Denmark not deport her and her son.



S.F.A. v. Denmark CEDAW Committee (2018)

Abortion and reproductive health rights, Female genital mutilation or female genital cutting, Forced and early marriage

S.F.A., a Somali national, applied for asylum in Denmark for herself and her son born in 2013.  She was subjected to female genital mutilation as a child and her father wanted to marry her forcibly to an older man.  She had a relationship against her family’s wishes with H., became pregnant and had an abortion.  Her father learned about the abortion and her brothers threatened to hand her over to Al-Shabaab.  She left Somalia and ended up in Italy.  H. traveled to Italy, they got married and she became pregnant and H. died.  S.F.A. and her baby traveled to Denmark without documents and she applied for asylum.  Denmark rejected her asylum application and dismissed her claim.  She filed a complaint with CEDAW claiming that, if she and her son were deported to Somalia she would be personally exposed to serious forms of gender-based violence, as defined under articles 2, 12, 15 and 16 of the Convention.  The Committee noted that the Danish authorities found that S.F.A.’s account lacked credibility due to factual inconsistencies and lack of substantiation and that they considered the general situation in Somalia.  The Committee rejected her claim that the fact she is a single woman constitutes a supplementary risk factor in Somalia, finding that she has several close relatives in Somalia.  Based on the record, the Commission deemed the communication inadmissible under article 4(2)(c) of the Optional Protocol, finding that it was not able to conclude that the Danish authorities failed to give sufficient consideration to the application or that consideration of her case suffered from any procedural defect.



A.S. v. Denmark CEDAW Committee (2018)

International law, LGBTIQ

A.S., a Uganda national, applied for asylum in Denmark.  She claimed she was wanted in Uganda and at risk of being killed there because she was a lesbian.  She was forced to marry a man and have three children, and when he died, she made a living working in a bar frequented by lesbians.  Three men made advances to her in the bar, she turned them down, and they became aggressive.  Her home was ransacked and burned, her belongings were stolen, and the police looked for her, including at her mother’s house.  She left Rwanda traveling with a visa obtained in Kampala.  Danish authorities rejected the asylum application, noting the visa contained the wrong name.  A.S. filed a complaint with CEDAW claiming that, deportation to Uganda would violate her rights under articles 1-3 of the Convention because her life would be in danger at the hands of the police and ordinary people due to her sexual orientation.  She claimed that her case was not properly investigated by the Refugee Appeals Board.  The Committee noted that the Danish authorities found A.S.’ account lacked credibility due to factual inconsistencies and lack of support related to her claim to be a lesbian and her account of the bar incident.  The Committee also noted that the authorities considered the situation of gay people in Uganda, and found that, notwithstanding the fact homosexuality is prohibited under the Penal Code, the ban has not been enforced and gay people are not targeted.  The Committee deemed the communication inadmissible under article 4 (2)(c) concluding that A.S. failed to support that the lack of reference to the Convention in the asylum decision or the refusal to call a witness stemmed from any gender-based discrimination.  It also did not find any procedural defect or arbitrariness in the decision-making process or any breach of the Convention as a result of the initial error related to A.S.’ name.



Omeredo v. Austria European Court of Human Rights (2011)

Female genital mutilation or female genital cutting

The applicant is a Nigerian national who fled due to not wanting to undergo female genital mutilation (FGM) and sought asylum in Austria. Austria rejected her application for asylum and she appealed, complaining under Article 3 of the Convention that she runs the risk of being forced to undergo FGM if she is expelled to Nigeria. The Court rejects her application because they reasoned that due to her age and work experience she should have been able to live in Nigeria on her own.



L.R. v. United Kingdom European Court of Human Rights (2014)

Sexual violence and rape, Trafficking in persons

The applicant is an Albanian national who was abducted and brought into the UK where she was forced to work as a prostitute. She escaped and requested asylum for fear of retribution from her abductor if she returned to Albania. Her request for asylum was rejected by the UK government and she complained that her removal was in violation of Articles 2, 3, 4, and 8 of the Convention. The UK did grant her application though, so the issue was resolved without having to consider whether there was a violation of the Convention.



W.H. v. Sweden European Court of Human Rights (2014)

Gender discrimination

A woman seeking asylum in Sweden was denied asylum by the Swedish Migration Board, the Migration Court, and denied an appeal of the previous decisions by the Migration Court of Appeals. The migration courts found that although the applicant belonged to a minority (Mandaean) in Iraq, the one threat she had received several years ago was not based on her minority beliefs but on her marital status (as she was divorced) and therefore her return to Iraq could not be deemed unsafe. The courts also found that the situation in Iraq did not constitute grounds for asylum nor that she was still being searched for in Iraq. Swedish law (the Aliens Act (Utlänningslagen, 2005:716)) states that “an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden.” Moreover, the Aliens Act continues, “if a residence permit cannot be granted on the above grounds, such a permit may be issued to an alien if, after an overall assessment of his or her situation, there are such particularly distressing circumstances (synnerligen ömmande omständigheter) to allow him or her to remain in Sweden (Chapter 5, section 6).” The applicant brought this suit complaining that her return to Iraq would constitute a violation of Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”) The applicant lost this suit as well, as the court held that her circumstances would not prevent her from settling safely and reasonably in the Kurdistan Region of Iraq once deported from Sweden. The evidence did not show that the applicant would face a risk of treatment prohibited by Article 3 in the Kurdistan Region. The Court looked at precedent holding that the general situation in Iraq was not so serious as to cause, by itself, a violation of Article 3 of the Convention in the event of a person’s return to that country (F.H. v. Sweden (no. 32621/06, § 93, 20 January 2009)). Taking into account the international and national reports available at the time of the decision, the Court saw no reason to alter the position taken four years before. The Court gave deference to the Swedish Migration Court’s decision and found no violation of Article 3. According to the Court, “Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens.”



C.T. v. Sweden CAT Committee (2006)

Sexual violence and rape

C. T., a Hutu citizen of Rwanda and a member of the PDR-Ubuyanja party, was arrested for her political affiliations and incarcerated in a Kigali prison. While incarcerated, she was repeatedly raped, under the threat of execution if she did not comply, and become pregnant. C. T. escaped to Sweden and requested asylum for herself and her son; her request was denied by the Migration Board for lack of credibility. She filed a complaint with the Committee Against Torture, arguing that her forced return to Rwanda would subject her to further human rights violations and possibly result in her death. The Committee Against Torture held that C. T.’s removal to Rwanda would constitute a violation of article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), which obligates state parties not to expel or return a person to another state where there are substantial grounds for believing that he or she would be in danger of being subjected to torture. Addressing the issue of C. T.’s credibility, the Committee invoked its prior holding that victims of torture cannot be held to a standard of complete accuracy when recalling the facts of their experience, and held that domestic authorities erred in ignoring medical reports appended to the complaint which substantiated C. T.’s claims of rape and torture. The Committee concluded that given the continued state of ethnic tension in Rwanda and C. T.’s past victimization, return to Rwanda presented a foreseeable, real, and personal risk of danger for C. T. and her son.



A.S. v. Sweden CAT Committee (2000)

Domestic and intimate partner violence, Gender discrimination

A.S.’s husband was mysteriously killed during training with the Iranian Air Force, and the Iranian government subsequently declared him to be a martyr. As the widow of a martyr, A.S. was required to submit to the rigid rules of the Bonyad-e Shahid Islamic society, a foundation which supported and supervised the families of martyrs. In accordance with the aims of Bonyad-e Shahid, a high-ranking leader forced A.S. to be his wife in a sigheh marriage, a temporary marital arrangement that requires no registration or witnesses and is used as a measure to prevent women from being sexually active outside of marriage. A.S. was forced to live with her sigheh husband and perform sexual services for him at his command. A.S. later fell in love with a Christian man, and when the two were discovered together by the Iranian Revolutionary Guards, A.S. was taken into custody at the Ozghol police station in Tehran. A.S. was severely beaten by her sigheh husband for five to six hours. A.S. managed to obtain a visa to visit her sister in Sweden, and upon her arrival she applied for asylum; her application was rejected by both the Swedish Immigration Board and the Aliens Appeal Board. Since her departure from Iran, A.S. had been sentenced to death by stoning for adultery. In her complaint to the Committee, A.S. alleged that her forced return to Iran would constitute a violation of Sweden’s article 3 obligation not to expel or return a person to another state where there are substantial grounds for believing that he or she would be in danger of being subjected to torture. The Committee referred to the report of the Special Representative of the Commission on Human Rights on the situation of human rights in Iran which confirmed that Iran had recently sentenced several married women to death by stoning for adultery. Considering that A.S.’s account of events was consistent with the Committee’s knowledge about present human rights violations in Iran, the Committee held that in accordance with article 3 of the Convention, Sweden should refrain from forcing A.S. to return to Iran.



V.L. v. Switzerland CAT Committee (2006)

Sexual violence and rape

V.L. and her husband left Belarus for Switzerland after V.L.’s husband criticized the president of Belarus in a public newspaper. They first applied for asylum to the Swiss Federal Office for Refugees (BFF), which rejected the application and ordered V.L. and her husband to leave the country. Afterwards, V.L. revealed to her husband that she was the victim of several episodes of sexual abuse conducted by the Miliz, Belarus’ police force, who were seeking information about her husband’s whereabouts. Her husband reacted with violent insults and forbid V.L. from recounting the instances of sexual abuse to the Swiss authorities. When the Swiss Asylum Review Board (ARK) requested further information about V.L.’s reasons for seeking asylum, V.L. stated that she was raped once by three police officers, and again by these same officers after she had reported the incident to the head of the Miliz. When asked why she did not include the sexual abuse in her first application to the BFF, V.L. admitted that it was because of her husband’s psychological pressure not to report the rapes. The ARK considered V.L.’s rape claims implausible because she did not at least mention them in her first application for asylum, expressing suspicion about V.L.’s “sudden ability … to provide details about the alleged rape.” When V.L. submitted supporting medical reports to the ARK, the ARK replied that her case was closed and ordered her to return to Belarus. The Committee took note of several official documents illustrating the high incidence of violence against women in Belarus, including the Special Rapporteur on the situation of human rights in Belarus, the Special Rapporteur on Violence against Women, and the Ministry of Interior’s report of a 17% increase in reports of rape from the year prior to V.L.’s complaint. The Committee concluded that V.L.’s delay in reporting the sexual abuse was due to the reasonable fear of her husband’s shaming and rejection that can be common among female rape victims. In light of her past experiences with the Miliz and the Committee’s substantial doubt that the authorities in Belarus would take necessary measures to protect V.L. from further harm should be return, the Committee held that V.L.’s forced return to Belarus would violate Switzerland’s obligations under article 3 not to expel or return a person to another state where there are substantial grounds for believing that he or she would be in danger of being subjected to torture or inhuman treatment.



N.S.F. v. United Kingdom CEDAW Committee (2007)

Divorce and dissolution of marriage, Domestic and intimate partner violence

N. S. F., a Pakistani national, experienced repeated ill-treatment from her husband, including marital rape, until they divorced in 2002. Although N. S. F.’s husband continued to harass her after she moved to a nearby village, the police did not offer her any protection. When her ex-husband came to her new home with other armed men and threatened to kill her, N. S. F. fled to the United Kingdom and applied for asylum, claiming that her forced return to Pakistan would constitute violations of the 1951 Convention on the Status of Refugees and article 3 of the European Convention on Human Rights and Fundamental Freedoms. N. S. F. appealed the dismissal of her application for asylum by the Immigration and Nationality Directorate of the Home Office, and on appeal the Adjudicator denied N. S. F.’s application on the grounds that N. S. F. could relocate further away from her husband within the country, and that she would receive protection in Pakistan on account of her being divorced from her husband. The Immigration Appeal Tribunal rejected N. S. F.’s application for permission to appeal, and the High Court of Justice, Queens Bench Division, Administrative Court affirmed the decision upon challenge. Her complaint alleged that the asylum and human rights-based procedures were not fair, and that if deported back to Pakistan, N. S. F.’s husband would kill her and put her children’s education at risk. Although the Committee found the complaint inadmissible because N. S. F. did not exhaust all domestic remedies, the Committee noted that the complaint raised concern for women who have fled their country because of fear of domestic violence. It recalled its General Recommendation No. 19 on violence against women, and concluded that Pakistan’s assertion that N. S. F.’s claims do not amount to an allegation of sex discrimination needed to be reconsidered in light of this Recommendation. The Committee suggested that N. S. F. apply to the High Court for judicial review of her application for asylum, and that the Court take her allegations of sex discrimination under consideration.



Zhen Zhen Zheng v. The Netherlands CEDAW Committee (2007)

Trafficking in persons

Petitioner was trafficked into the Netherlands and request for asylum was denied because she could not give details about her trip from China and did not have identity documents.  Although the Committee held complaint to be inadmissible for non-exhaustion of domestic remedies, the dissent found that due to vulnerable situation of victims of trafficking, the complaint should be admissible and that the State did not act with due diligence in failing to recognize that Ms. Zheng may have been victim of trafficking.