The applicant was given refugee status and had successfully applied for permission for his second wife to join him in Ireland. The present case arose when he sought to have his first wife join him. In considering the legal consequences of a polygamous marriage entered into in another country, the Supreme Court ruled that, where a man had married two wives under the laws of Lebanon, the first marriage is valid under Irish law but the second is not. The appellant (husband) had married two women in a manner permissible under the laws of Lebanon (their previous state of domicile). He sought a declaration, pursuant to Section 29 of the Family Law Act 1995, that his marriage to his first wife was valid on the date of its inception. The High Court found the polygamous marriage entirely invalid. On appeal, the Supreme Court reasoned that: (a) rules of private international law require the State to recognize a marriage validly contracted under a foreign system of law unless such recognition is prohibited by public policy; (b) the Constitution and Irish public policy envisage a marriage as a union between two people based on the principles of equality and mutual commitment; (c) there is therefore no bar to recognizing a marriage “that is in fact monogamous, where the only objection is that the system of law under which the couple married would permit more than one marriage;” and (d) Irish law and the Irish Constitution preclude the recognition of a second or subsequent marriage while the first marriage is valid, although that does not mean that a subsequent marriage can never have legal consequences. The Court granted the declaration of the validity of the first marriage because it was valid when contracted and the husband’s subsequent marriage should not preclude that.
Women and Justice: Keywords
H.A.H v S.A.A and Others Supreme Court of Ireland (2017)
The appellant, a Somali girl, applied to the Austrian government for asylum and international protection due to her precarious situation in Yemen. The appellant’s family fled to Yemen when she was four years old because her family was discriminated against in Somalia due to their affiliation with a Madhibaan minority clan. The plaintiff’s brother and father were killed and no other family remained in Somalia. Further, female genital mutilation is a common practice in Somalia. The appellant’s application for asylum and international protection was rejected by the relevant asylum authorities and the Austrian Federal Administrative Court on the grounds that the nature of the persecution was found to be insufficiently intense or severe. It was further decided that the appellant’s genital mutilation had already happened , so the international protection against threatened genital mutilation could not apply. However, the Austrian Constitutional Court ultimately revoked this judgment, finding (among other conclusions) that the circumstances of this case were not given sufficient consideration, in particular, the disregard of the fact that women of minority clans in the relevant geographic areas were particularly vulnerable to risks of torture, rape, murder, and forced marriages. The lower court also failed to consider sufficiently the possibility of repeated genital mutilation. Finally, the Court referred to UNHCR’s finding that prior genital mutilation was an equally reasonable justification for the application for asylum and international protection because the victim suffered life-long physical and mental damages.
Die Beschwerdeführerin, ein somalisches Mädchen, beantragte bei der österreichischen Regierung Asyl und internationalen Schutz aufgrund ihrer prekären Situation im Jemen. Die Familie der Klägerin floh in den Jemen, als sie vier Jahre alt war, weil ihre Familie in Somalia aufgrund ihrer Zugehörigkeit zu einem Clan der Madhibaan-Minderheit diskriminiert wurde. Der Bruder und der Vater der Klägerin wurden getötet, und keine andere Familie blieb in Somalia. Außerdem ist die weibliche Genitalverstümmelung in Somalia eine gängige Praxis. Der Antrag der Klägerin auf Asyl und internationalen Schutz wurde von den zuständigen Asylbehörden und dem österreichischen Bundesverwaltungsgericht mit der Begründung abgelehnt, dass die Art der Verfolgung nicht ausreichend intensiv oder schwer sei. Außerdem wurde festgestellt, dass die Genitalverstümmelung der Beschwerdeführerin bereits stattgefunden hatte, so dass der internationale Schutz gegen drohende Genitalverstümmelung nicht zur Anwendung kommen konnte. Der österreichische Verfassungsgerichtshof hob dieses Urteil jedoch schließlich auf, da er (neben anderen Schlussfolgerungen) feststellte, dass die Umstände dieses Falles nicht ausreichend berücksichtigt wurden, insbesondere die Tatsache, dass Frauen von Minderheitenclans in den betreffenden geografischen Gebieten besonders gefährdet sind, gefoltert, vergewaltigt, ermordet und zwangsverheiratet werden. Die Vorinstanz hat auch die Möglichkeit wiederholter Genitalverstümmelung nicht ausreichend berücksichtigt. Schließlich verwies das Gericht auf die Feststellung des UNHCR, dass eine frühere Genitalverstümmelung eine ebenso angemessene Begründung für den Antrag auf Asyl und internationalen Schutz sei, da das Opfer lebenslange körperliche und seelische Schäden erleidet.
In der Beschwerdesache der A (In the Matter of A.) [E 1043/2020-10] Österreichischer Verfassungsgerichtshof (Austrian Constitutional Court) (2020)
The appellant, a 22-year-old Somali woman, applied to the Austrian government for asylum and international protection, stating that she was abducted by the Al-Shabaab Militia and her uncle arranged a forced marriage for her. Her application for asylum and international protection was rejected by the relevant asylum authorities and the Austrian Federal Administrative Court on the grounds that the reasons stated by the appellant were not credible, too vague, and contradictory. In addition, the fact that she still had family (including her uncle) in Somalia was deemed as sufficient proof that she could lead a life without undue hardship. However, the Austrian Constitutional Court ultimately revoked this judgment, finding (among other conclusions) that the circumstances of this case were not given sufficient consideration, particularly, the fact that it would be unreasonable for the plaintiff to return to her family. The court did not sufficiently investigate and consider that the appellant’s uncle appeared to have beaten her several times, robbed her, locked her up, forced genital mutilation upon her and arranged for a forced wedding. The Court found the appellant’s right to equal treatment violated.
Die Beschwerdeführerin, eine 22-jährige Somalierin, beantragte bei der österreichischen Regierung Asyl und internationalen Schutz mit der Begründung, sie sei von der Al-Shabaab-Miliz entführt und von ihrem Onkel zwangsverheiratet worden. Ihr Antrag auf Asyl und internationalen Schutz wurde von den zuständigen Asylbehörden und dem österreichischen Bundesverwaltungsgericht mit der Begründung abgelehnt, die von der Beschwerdeführerin angegebenen Gründe seien nicht glaubwürdig, zu vage und widersprüchlich. Darüber hinaus wurde die Tatsache, dass sie noch Familie (einschließlich ihres Onkels) in Somalia hatte, als ausreichender Beweis dafür angesehen, dass sie ein Leben ohne unzumutbare Härten führen konnte. Der österreichische Verfassungsgerichtshof hob dieses Urteil jedoch schließlich auf, weil er (neben anderen Schlussfolgerungen) feststellte, dass die Umstände dieses Falles nicht ausreichend berücksichtigt worden waren, insbesondere die Tatsache, dass es für die Klägerin unzumutbar wäre, zu ihrer Familie zurückzukehren. Das Gericht hat nicht ausreichend untersucht und berücksichtigt, dass der Onkel der Rechtsmittelführerin sie offenbar mehrfach geschlagen, ausgeraubt, eingesperrt, ihr eine Genitalverstümmelung aufgezwungen und eine Zwangshochzeit arrangiert hat. Das Gericht stellte fest, dass das Recht der Beschwerdeführerin auf Gleichbehandlung verletzt wurde.
In der Beschwerdesache der A (In the Matter of A.) [E 1689/2020-5] Österreichischer Verfassungsgerichtshof (Austrian Constitutional Court) (2020)
The 90-year-old female appellant (an Iraqi national) applied to the Austrian government for asylum and international protection, stating that due to the war in Iraq, she feared for her life and for her family. She stated that she had been threatened by various battle groups. It appeared that the appellant was confined to a wheelchair and suffered from various illnesses including labyrinthine deafness, arterial hypertonia, kidney cysts, and dementia with behavioral disorder. Her application for international protection was rejected by the relevant asylum authorities and the Austrian Federal Administrative Court on the grounds that she did not meet the criteria for asylum or international protection. Among other reasons, her medical conditions were found to be insufficiently serious and of a nature that could be treated in Iraq. In addition, the fact that she still had family in Iraq to support her was found to be sufficient proof that she could lead a life without undue hardship. However, the Constitutional Court ultimately revoked this judgment, finding (among other conclusions) that the circumstances of the case were not sufficiently considered, especially the appellant’s age, serious medical condition, unreasonable difficulty accessing medical treatment in Iraq. Therefore, the Court found (1) the appellant’s rights of Article 3 European Human Rights Convention to be violated, and (2) the lower court’s decision arbitrary.
Die 90-jährige Beschwerdeführerin (eine irakische Staatsangehörige) beantragte bei der österreichischen Regierung Asyl und internationalen Schutz mit der Begründung, dass sie aufgrund des Krieges im Irak um ihr Leben und ihre Familie fürchte. Sie gab an, dass sie von verschiedenen Kampfgruppen bedroht worden sei. Es stellte sich heraus, dass die Beschwerdeführerin an einen Rollstuhl gefesselt war und an verschiedenen Krankheiten litt, darunter labyrinthische Taubheit, arterielle Hypertonie, Nierenzysten und Demenz mit Verhaltensstörungen. Ihr Antrag auf internationalen Schutz wurde von den zuständigen Asylbehörden und dem österreichischen Bundesverwaltungsgericht mit der Begründung abgelehnt, sie erfülle nicht die Kriterien für Asyl oder internationalen Schutz. Unter anderem wurde ihr Gesundheitszustand als nicht so schwerwiegend eingestuft, sodass dieser auch im Irak behandelt werden könne. Außerdem wurde die Tatsache, dass sie noch Familie im Irak hat, die sie unterstützen könnte, als ausreichender Beweis dafür angesehen, dass sie ein Leben ohne unzumutbare Härten führen kann. Das Verfassungsgericht hob dieses Urteil jedoch schließlich auf und stellte (neben anderen Schlussfolgerungen) fest, dass die Umstände des Falles nicht ausreichend berücksichtigt wurden, insbesondere das Alter der Beschwerdeführerin, ihr schwerer Gesundheitszustand und die unzumutbaren Schwierigkeiten beim Zugang zu medizinischer Behandlung im Irak. Daher stellte das Gericht fest, dass (1) die Rechte des Beschwerdeführers aus Artikel 3 der Europäischen Menschenrechtskonvention verletzt wurden und (2) die Entscheidung der unteren Instanz willkürlich war.
RRT Case No. 1101038 Refugee Review Tribunal (2011)
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)
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)
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)
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)
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)
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)
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)
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.
A gg. Bundesasylamt (A. v. Federal Asylum Agency) [C16 427.465-1/2012] Asylgerichtshof (Asylum Court) (2012)
The minor applicant, a member of the Hazara ethnic group, illegally immigrated to Austria with her parents and four minor siblings from Afghanistan when she was approximately nine years old. The Federal Asylum Agency of Austria (“FAAA”) denied her and her family’s petitions for asylum. The Asylum Court reversed the denial, finding that the FAAA erred in summarily denying asylum based on the applicant’s statements without considering outside credible reports or sources relevant to the applicant’s asylum claim. The Asylum Court found that the applicant belonged to a particular social group based on her gender, age, and cultural and religious origins, and that she would have to live in accordance with the family’s conservative values if she returned to Afghanistan. As such, the applicant would not have the opportunity to pursue any goals outside the religion and customs of her community nor would she be able to protect herself against violence or undesired restrictions. Furthermore, a return would mean that the applicant would be raised to be a homemaker and married to a man chosen by her father and grandfather. The Court concluded that, if returned to Afghanistan, the applicant would find herself in a situation of permanent latent threats, structural violence, and immediate restrictions that would practically make it impossible for her to exercise her human rights. In granting the applicant’s asylum claim, the Court considered both gender-specific and child-specific factors that were not brought forth by the applicant, but rather gathered from credible investigative sources.
Die minderjährige Beschwerdeführerin ist afghanische Staatsbürgerin und Angehörige der Volksgruppe der Hazara. Sie wanderte gemeinsam mit ihren Eltern und vier minderjährigen Geschwistern illegal nach Österreich ein, als sie ungefähr neun Jahre alt war. Das Österreichische Bundesasylamt lehnte ihren Asylantrag und den ihrer Familie ab. Der Asylgerichtshof hat der Beschwerde der Beschwerdeführerin stattgegeben und ihr den Status einer Asylberechtigten zuerkannt. Nach Auffassung des Asylgerichtshofs lehnte das Bundesasylamt fehlerhaft den Antrag aufgrund der Angaben der Beschwerdeführerin ab, ohne weitere externe Berichte oder sonstige Quellen in Betracht zu ziehen, die ebenso relevant für die Beurteilung des entsprechenden Asylantrags sind. Der Asylgerichtshof stellte fest, dass die Beschwerdeführerin einer bestimmten sozialen Gruppe aufgrund ihres Geschlechts, Alters und kultureller oder religiöser Herkunft angehört, sodass sie in Übereinstimmung mit den konservativen Werten ihrer Familie leben müsste, sollte sie nach Afghanistan zurückkehren. Unter diesen Umständen würde ihr das Verfolgen von Zielen außerhalb der Religion und den Gepflogenheiten ihrer Gemeinschaft verwehrt. Sie wäre des Weiteren nicht in der Lage, sich gegen Gewalt oder ungewollte Restriktionen zu wehren. Außerdem würde eine Rückkehr für sie bedeuten, als Hausfrau und Mutter erzogen zu werden, bis sie an einen Mann verheiratet würde, den entweder Vater oder Großvater für sie aussuchen. Der Gerichtshof hat daher festgestellt, dass die Beschwerdeführerin, sollte sie nach Afghanistan zurückkehren, sich in einem Klima ständiger latenter Gefahr, struktureller Gewalt und unmittelbarer Einschränkungen wiederfinden würde, die es ihrer praktisch unmöglich machen, ihre Menschenrechte auszuüben. Indem der Gerichtshof, dem Antrag der Beschwerdeführerin stattgab, hat er sowohl geschlechtsspezifische und kind-spezifische Faktoren erwogen, die nicht von der Beschwerdeführerin vorgebracht wurden, allerdings aus glaubwürdigen investigativen Quellen stammen.
Mrs. X v. Ministerio dell'interno Tribunale di Cagliari (2013)
The applicant, a Nigerian-born woman, was granted refugee status based on the absence of protection for violence against women generally in Nigeria, as well as her specific experience with gender-based violence. In 2010, the applicant was, without her consent, taken to Libya where she was subject to forced prostitution and violent attacks that included removal of applicant’s nails and hair. The applicant was then transferred to Italy where she applied to the Territorial Commission for international protection. Her application was denied and she appealed to the Tribunal of Cagliari to overturn the Territorial Commission’s decision. The Tribunal of Cagliari found that the applicant’s subjective credibility should have been considered, along with the objective facts available regarding the dire situation for women in Nigeria, and that the Territorial Commission’s findings were invalid because her application for international protection was not translated to a language that she was able to understand.
La ricorrente, nata in Nigeria, ottenne lo status di rifugiato sulla base dell’assenza di protezione per la violenza contro le donne in Nigeria, nonché della propria esperienza con la violenza di genere. In particolare, nel 2010, la ricorrente è stata, senza il suo consenso, portata in Libia, dove è stata soggetta a prostituzione forzata e ad abusi violenti che comprendevano la rimozione di unghie e capelli. La ricorrente è stata quindi trasferita in Italia dove ha richiesto alla Commissione Territoriale la protezione internazionale. La sua domanda venne respinta e quindi presentava ricorso al Tribunale di Cagliari per ribaltare la decisione della Commissione Territoriale. Il Tribunale di Cagliari ha ritenuto che si dovesse prendere in considerazione la credibilità soggettiva della ricorrente, unitamente ai dati oggettivi disponibili in merito alla terribile situazione delle donne in Nigeria, e che le conclusioni della Commissione Territoriale non erano valide perché la domanda di protezione internazionale non era stata tradotta in una lingua che la ricorrente era in grado di comprendere.
Detention Action v. Secretary of State for the Home Department (SSHD) High Court of the United Kingdom and Northern Ireland (2014)
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)
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)
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.
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)
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)
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)
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)
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)
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)
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.
O. gg. Österreich (O. v. Austria) European Court of Human Rights (Europäischer Gerichtshof für Menschenrechte) (2011)
The applicant, a Nigerian woman, fled to avoid female genital mutilation (“FGM”) and sought asylum in Austria. Austria rejected her application for asylum and she appealed, arguing under Article 3 of the Convention that she ran the risk of being forced to undergo FGM if she expelled to Nigeria. The Federal Asylum Office and the Asylum Court rejected her application. They reasoned that she could have sought the state’s protection and due to her age (she was born in 1973), education, and work experience she should have been able to live safely in other parts of Nigeria on her own. The European Court of Human Rights rejected the complaint of applicant and essentially repeated the reasoning of the Asylum Office and the Asylum Court. It further stated that the circumstances of the applicant’s life in Austria would be more favorable than in Nigeria, but that is not a determinative factor in Article 3 complaints.
Die Antragstellerin, eine nigerianische Frau, floh nach Österreich, wo sie Asyl beantragte, um der weiblichen Genitalverstümmelung in ihrem Land zu entkommen. Ihr Asylantrag wurde zurückgewiesen, wogegen sie Beschwerde einlegte. Sie brachte vor, dass ihr eine Gefahr i.S.v. Artikel 3 der Europäischen Menschenrechtskonvention drohe, eine aufgezwungene weibliche Genitalverstümmelung, wenn sie nach Nigeria ausgewiesen würde. Das Bundesasylamt und der Asylgerichtshof haben ihren Antrag zurückgewiesen. Diese Entscheidung begründeten sie damit, dass die Antragstellerin den Schutz des Staates hätte suchen können und aufgrund ihres Alters (Geburtsjahr 1973), ihrer Bildung und Arbeitserfahrung hätte sie in anderen Teilen des Landes sicher leben können. Diese Argumentation übernahm der EGMR und wies die Beschwerde der Antragstellerin entsprechend zurück. Er argumentierte weiterhin, dass die Lebensumstände der Antragstellerin in Österreich wohl zwar angenehmer sein können als in Nigeria, dies allerdings nicht der entscheidende Faktor für eine Beschwerde unter Artikel 3 der Menschenrechtskonvention sein könne.
A.Sh., et al. v. Switzerland Committee Against Torture (2018)
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)
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)
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)
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)
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)
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)
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.
Seferovic v. Italy European Court of Human Rights (2011)
The detention pending deportation of a woman who had recently given birth found to be unlawful and violated Article 5 §1(f) and Article 5 §5 (right to liberty and security) of the European Convention on Human Rights. In September 2000, the applicant, a woman from Bosnia and Herzegovina, applied to the Italian authorities for refugee status. The application was not forwarded to the competent commission because it contained formal defects. On September 26, 2003, the applicant gave birth to a child, who died a few days later at the hospital. Then, on November 11, 2003, the police served her with a deportation order and transferred her to a holding center. The European Court of Human Rights declared that the deportation order and the applicant's detention were in breach of Italian immigration law no. 286 of 1998, which provided that her deportation should have been suspended until six months after she had given birth (March 26, 2004), regardless of the fact that the baby had died. In March 2006, the Rome Civil Court granted the applicant refugee status. In addition, by way of just satisfaction, the government was required to pay the applicant 7,500 euros (EUR) for non-pecuniary damage for her unlawful detention as there was no redress available under Italian law.
La detenzione di una donna che aveva da poco partorito, in attesa della sua deportazione, è stata ritenuta illegale e in violazione dell’articolo 5 § 1 (f) e dell’articolo 5 § 5 (diritto alla libertà e alla sicurezza) della Convenzione europea dei diritti dell’uomo. Nel settembre del 2000, la ricorrente, una donna della Bosnia-Erzegovina, richiedeva alle autorità italiane lo status di rifugiato. La richiesta non veniva inoltrata alla commissione competente in quanto conteneva delle irregolarità formali. Il 26 settembre 2003, la ricorrente dava alla luce un figlio, che moriva pochi giorni dopo in ospedale. In seguito, l’11 novembre 2003, la polizia emetteva nei confronti della donna un decreto di espulsione e la trasferiva in un centro di soggiorno temporaneo. La Corte europea dei diritti dell’uomo dichiarava che il decreto di espulsione e la detenzione fossero stati emessi in violazione della legge italiana n. 286 del 1998, che prevede che l’espulsione avrebbe dovuto essere stata sospesa fino a sei mesi dopo il parto (26 marzo 2004), indipendentemente dal fatto che il figlio fosse morto. Nel marzo 2006, il Tribunale civile di Roma accordava alla Sig.ra Seferovic lo status di rifugiato. Inoltre, come giusta compensazione, poiché la legge italiana non prevedeva alcun risarcimento, al Governo veniva imposto di pagare alla ricorrente 7,500 euro come danno non patrimoniale per la sua detenzione illegale.
L.R. v. United Kingdom European Court of Human Rights (2014)
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)
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)
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)
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)
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)
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)
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.
The Human Trafficking Prevention Act (the “HTPA”) was enacted to prevent human trafficking and to safeguard the rights of victims. The HTPA defines “human trafficking” and related offenses, including “improper debt bondage,” specifies the responsibilities of the competent authorities at the central government, city, county, and municipal levels (including for cooperation among such competent authorities and with international governmental bodies and NGOs to eradicate human trafficking). It also governs matters including the prevention and identification of offenses; the protection and sheltering of victims as well as protection of witnesses; the treatment of victims who are not Taiwanese citizens and do not have valid resident or visitor permits (including the issuance of temporary visitor permits as well as the timing and conditions for repatriation); the confidentiality of victims’ identities (with financial penalties for unauthorized disclosures); and criminal procedure (including use as evidence of victim statements made outside of judicial proceedings). Persons found to have committed criminal offenses under the HTPA are subject to imprisonment for up to seven years or (for certain offenses) for periods in excess of seven years as well as to fines up to N.T. seven million, depending on the nature of the offense. The HTPA further provides that any property or profit from assets acquired from human trafficking is to be confiscated regardless of its ownership except the part to be returned to victims. Additionally, the HTPA provides for suspension or revocation of the licensing of any Taiwanese vessel, aircraft or other means of transportation whose owner, operator, captain, pilot, or driver has been engaged in transporting trafficked persons, as well as revocation of the professional licenses or qualifications of the captain, pilot or driver. The HTPA applies on an extraterritorial basis outside of Taiwan for the crimes specified in the legislation. English translation available here.
This law sets the procedure for granting refugee status; the status of subsidiary protection; cessation and revocation of a refugee status and the status of subsidiary protection; temporary protection, identification documents; the rights and obligations of asylum-seekers, refugees, and aliens under subsidiary protection; and other issues related to asylum in BiH. Article 9 of the Law on Asylum enhances the protection of women as it prohibits the discrimination of aliens on all grounds stipulated in the Law on the Prohibition of Discrimination, including sex, sexual orientation, gender identity, and sexual characteristics. English translation available through RefWorld External URL.
This act contains relevant provisions regarding marriage recognition. In 2004, major restrictions were adopted in relation to child marriages and forced marriages that have been entered into abroad to discourage circumvention of Swedish law in cases of strong Swedish affiliation. According to the act, a marriage that has been entered into under foreign law is not recognized in Sweden:if, at the time of the marriage, any of the parties was under the age of 18 if, at the time of the marriage, there would have been any other issue with the marriage under Swedish law, and at least one of the parties was at the time a Swedish citizen or was domiciled in Sweden if it is likely that the marriage was forced, or if the parties were not present at the same time during the marriage and at least one of them was at the time a Swedish citizen or was domiciled in Sweden.
The above does not apply if both parties are over the age of 18 and there are special reasons to recognize the marriage.
An amendment to the Swedish Aliens Act allows for the potential issuance of residence permits to victims of human trafficking crimes. The permit is issued for the duration of the investigation or hearing into the crime. During the duration of the permit the victims are eligible for health care, financial aid, and medical attention.
The law identifies and provides certain protections for vulnerable groups of migrants, including pregnant women, single mothers, and victims of domestic violence, rape, and human trafficking. The act also contains temporary residence provisions for victims of trafficking or individuals who are victims of serious criminal offenses. Victims of trafficking may be granted residence for a period of one year, whereas victims of serious criminal offenses may be eligible to stay for a minimum of six months and a maximum of one year, though this can be extended if the factors that the temporary residence was based on are still continuing. The act includes provisions to grant such individuals safe accommodation, psychological and material assistance, counseling, and access to education for minors. (English translation available here.)
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.
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.)
Trafficking in Persons Act (2005)
This act defines human trafficking and provides punishment for and methods of preventing human trafficking. §1.100-§1.102 of the act define human trafficking as including recruitment, transportation, and retention of a person by force or coercion for the purpose of slavery, forced labor, keeping a person in a state of servitude, prostitution, other commercial sexual exploitation, and removal of human organs. §3 provides that a person that commits trafficking must pay restitution to the victim. §7 provides that the Court shall sentence a person convicted of human trafficking to prison for at least one year, and that the offender can be sentenced to prison for longer periods under different situations. §8 provides that the fact that the victim was old enough to consent to sex shall not serve as a defense to the human trafficking offense. While §9 provides that the victim is immune from the prostitution or other criminal offenses caused by human trafficking. Art. II, §1 provides that the President shall implement a National Plan to prevent human trafficking and shall appoint members to a task force on implementation, which shall be led by the Minister of Labor. The Law also provides that a victim has a right to restitution including damages to compensate for costs of medical treatment, rehabilitation, transportation costs, lost income, legal fees, and general compensation for distress and pain as well as any other loss suffered. Compensation is paid by the defendant directly to the victim upon conviction. The right to restitution is not affected by the victim returning to his or her home country or by the victim not being present in Liberia. Section 9 provides immunity to any immigration offence that may have been committed as a direct result of being trafficked. Additionally, under Section 8, the Law confirms that consent to sex is not a valid defence to trafficking when violence is used to commit the crime. The Law also imposes corporate liability on international transport companies that fail to verify that passengers in company vehicles which enter other countries have the requisite travel documentation. A company may be fined for failing to comply. Additionally, a company that knowingly facilitates trafficking is liable for the cost of accommodating and providing meals to the victim and any dependent.
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)