At the end of March 2004, the Home Office (HO) in the UK introduced gender guidance to its Asylum Policy Instructions (APIs) in a document entitled ‘gender issues in the asylum claim’. [1] This guidance sets out a number of instructions and considerations with regard to gender issues that the Home Office caseworkers should ‘take into account (…) when looking at the persecution experienced and whether there has been a failure of state protection’.

The introduction of the gender guidance in the APIs has been a welcome development in the context of recent changes to the asylum process in the UK but had been long awaited by stakeholders, not least RWLG and RWRP.

Why Gender Guidelines ?

For many years, advocates of gender guidelines have been pointing that the guidelines are crucial to ensure that women asylum claims fit in the Refugee Convention and are being dealt with in fairness. The application of the principles laid in the guidelines does not mean a woman’s claim for asylum will automatically lead to refugee status ; but it means that her claim will have been assessed taking into account a number of factors that are specific to her gender or to her experience of gender-related persecution. Thus the guidelines are about affirming anti-discrimination norms set in basic international human rights instrument, including the Refugee Convention. [2] They are also about recognising that many forms of violence against women are not private matters and are often perpetrated for one of the five Convention reasons. Thus women who are fleeing these forms of violence should be able to recourse to international protection successfully if state authorities in their countries of origin are unable or unwilling to address them. Lastly, gender guidelines are necessary to highlight procedural and evidential barriers that can undermine the fairness of decision-making on women’s claims.

Gender guidelines were first adopted by Canada in 1993, issued by the Immigration and Refugee Board, an independent administrative tribunal. The USA and Australia issued their own guidelines few years later. These experiences inspired directly the Refugee Women’s Legal Group to publish its own Gender Guidelines for the Determination of Asylum Claims in the UK in July 1998. [3] Refugee women activists in the UK played a key role in this outcome, leading to a series of consultation processes with refugee women that resulted in the production of the RWLG gender guidelines. [4] Few years ago RWLG entered a consultation process with the Home Office which resulted in the publication of the API on gender guidance.

RWRP research : background and methodology

In the context of all the above, RWRP was concerned at the start of the research that the Home Office’s Gender guidance had had little impact so far on the quality of decisions on gender-related issues. The fact that the Home Office did not publicise the introduction of this crucial API may have been an indicator of things to come. [5] But mainly anecdotal evidence pointed already to at very least a lack of consistent application of such guidance. RWRP was also keen to follow on a previous research survey undertaken in 2002/2003 which including a call for measuring what effect any Home Office Gender Guidelines would have when officially adopted. [6] Thus RWRP undertook its own research in the course of 2005/2006 in order to attempt to evaluate the use of the API on gender guidance by Home Office caseworkers, in the absence of a monitoring system within the Home Office itself.

The research was undertaken in the context of increasingly restrictive governmental asylum policies including radical policies of detention and deportation. But even more crucially, the research took place in the context of an asylum process marred by poor quality decision-making at first instance as revealed by the scrutiny of a number of studies conducted by organisations such as Asylum Aid, Amnesty International or the Medical Foundation for the Victims of Torture in the last decade alone. Not least amongst these were the reviews carried out by the Advisory Panel on Country Information (APCI) and the UNHCR. The APCI is an independent body set up under the Nationality Asylum and Immigration Act 2002, ‘to consider and make recommendations to the Secretary of State about the content of country information ;’ [7] such a review was called for in response to the poor quality of country information reports produced by the Home Office and on which many decisions on asylum claims by Home Office caseworkers rely. The UNHCR started its Quality Initiative Project in March 2004 and is still on-going to date.

The research was designed from the onset to identify examples of both good and poor practice. It was based on semi-structured interviews conducted with professionals in the field of asylum determination, and documentary analysis based on Asylum Aid’s case files and Home Office Reasons for Refusal Letters. The research findings as presented in the final report were also complemented with observations from secondary sources which had been published up to two years before the research started. Participants in the research were selected both randomly and using ‘chain sampling’. Case files on the other hand were selected using specific criteria to fit the purpose of the research (so asylum claim, refused at first instance and with a gender-related element).

RWRP Research findings

A few examples of good practice were identified but the overwhelming impression was one of a lack of awareness of gender issues and of the Guidance not being followed by decision-makers.

The adoption of the guidance itself was viewed positively but this view was soon qualified by a number of criticisms related to the content itself. One of the major shortcoming outlined was the lack of details with reference to issues mentioned in the guidance, such as sexual trauma ; or concepts which relate specifically to women’s rights issues : for instance the definitions of political opinion, legal provision to protect women’s rights and failure of state protection were found to be unclear and too narrow to be meaningful. Respondents viewed the guidance’s lack of details and comprehensiveness as a reflection of the Home Office’s lack of commitment to see the guidance implemented throughout the asylum process. Lastly on the issue of the text itself, some questioned the need to have a separate guidance when in the UK and internationally comprehensive guidelines have been published already : In particular the then Immigration Appellate Authority Asylum Gender Guidelines published in November 2005 and the UNHCR guidelines.

Worryingly the research also revealed that, in the view of respondents, there was generally a poor understanding by decision-makers of the Refugee Convention both in general and in relation to women’s experiences. This finding is supported by UNHCR’s own finding that the Convention and principles contained in the UNHCR Handbook on procedures and criteria for determining Refugee Status were ‘often incorrectly interpreted and misapplied’ and that many caseworkers, including senior caseworkers at the Home Office, ‘incorrectly interpret key refugee law concepts.’ [8]

In addition, respondents thought that some decision-makers at the Home Office perceived the gender guidance as a way to give some advantage to women’s claims.

RWRP highlighted a number of examples where gender-specific and gender-related persecution were dismissed as not being for Convention reasons despite the facts in the case demonstrating otherwise and despite examples of such cases being mentioned in the gender guidance. For example, one of our respondents - working for a project funded by the Home Office dealing with trafficked women for sexual exploitation - cited a lack of recognition of the risks faced by victims of trafficking and sexual violence on return and doubts about the credibility of applicants as the main problems with the Home Office’s approach.

Respondents identified credibility as a major issue in the context of a wider culture of disbelief at the Home Office, which, when combined with ignorance or bias against women, had a particularly severe impact on fair decision-making. Home Office caseworkers were often found not to take into account the effects of trauma on recounting events – even though this was outlined in the gender guidance - and occasionally used discrepancies in account against claimants.

There was also a lack of knowledge of women’s situation and status in countries of origin, which was exacerbated by the generally poor quality of country information provided by the Home Office to its decision-makers on women’s issues. RWRP has been campaigning for years on this issue and has also produced a number of reports to highlight gaps in such information and also challenge policies that have set lists of ‘safe’ countries leading to the fast-processing of asylum claims whilst applicants are being held in detention awaiting removal. Following the publication of this research, RWRP has been invited to train Home Office caseworkers on women’s rights in countries of origin information. At the same time the Home Office has agreed to incorporate the categories RWRP has identified relating to women’s rights issues in the Home Office country of origin information reports.

In terms of procedures instrumental to a fair assessment of women’s asylum cases, the gender guidance mentions the efforts that the Home Office will make in order to provide female interviewers and interpreters. Despite this, many problems were identified by our respondents with interviewing procedures including lack of provision of female interviewers and interpreters. This had a serious impact on the ability of women to tell their stories in full, especially when they had experienced sexual violence.

Respondents said that women’s claims in the fast-track system were dealt with inappropriately, openly in breach of the gender guidance, as it is not designed for complex claims. In particular, there was not sufficient time therefore to investigate their claims in-depth.

Respondents also described general problems with poor-quality decision-making and recommended changes in management and training of caseworkers.

The Home Office recently agreed to various changes in its decision-making procedures, mainly in response to consultations with UNHCR. RWRP research suggested additional actions to be considered by the Home Office in order to facilitate fairer treatment of women’s asylum claims in the UK, and ensure that the UK Government meets its obligations regarding the protection needs of women fleeing persecution.

So what has happened since ?

RWRP campaign : three strands

As a result of the research it became very clear that RWRP needed to campaign to get the Gender API implemented. So RWRP took the opportunity to launch its new campaign at the same time the research report was launched at a public meeting in March 2006.

The campaign has three strands as we believe that to have any chance of success, the approach needs to have a number of targets. Clearly the Home Office needs to be targeted as it is their policy which is not being implemented. However, knowing the difficulties of making operational change in a large bureaucracy, we decided that we need to help such change along by providing a push from the bottom up. We identified two agents that would be able to do this, the legal representatives involved in women’s cases and the women themselves. We cover these three strands in turn below.

Getting the Home Office to implement its own policy :

Firstly we need to persuade the Immigration and Nationality Directorate (IND) to implement its own policy. A senior member of IND’s staff attended the launch of the research and the campaign as a member of the audience. Our next dialogue with the Home Office was more fortuitous. We were invited to explain our campaign on national radio on a popular morning programme, Radio 4’s “Woman’s Hour” at the end of March. The Immigration Minister, Tony McNulty, was also invited to be interviewed on the programme. This meant that our first policy discussion on our new research was not only with an extremely senior person but also live on air ! We deduced that the fact that the Minister chose to spend time discussing this issue with us on the radio suggests that the Home Office is taking our research seriously.

During the programme, the Minister said that they would consider all the recommendations in the report. We were asked what we thought should happen as a result of our research findings and said that the Gender Guidance should be made compulsory. The Minister stated that the API’s are, in essence, compulsory. In this case, we believe that Home Office caseworkers should be following them meticulously and their supervisors should be monitoring how they have taken the Gender Guidance into account for every decision where this is relevant. We expect to use the fact that the Minister has said that the API is compulsory in our subsequent campaigning.

In May we met with one of the Assistant Directors at the IND, Jeremy Oppenheim, and the meeting proved very productive.

Jeremy Oppenheim said the Home Office had looked at our report ‘with enormous care’. He completely accepted our conclusion that the implementation of the Gender API was the key. He thought our recommendations were very constructive and hoped to work with us on them. The timing of our report was advantageous as the IND were bringing in the New Asylum Model (NAM), a new process for refugee status determination with a single case owner responsible for an asylum seeker throughout the process.

There were a range of actions which were discussed at our meeting. The Assistant Director, IND, reiterated that the Gender API is compulsory and that caseworkers were bound to take them into account in making their decisions. He said caseworkers’ decisions were monitored by sampling by senior caseworkers, by the UNHCR and by the Treasury Solicitors. He said he would discuss with other managers whether it would be possible to include the Gender API in the caseworkers’ annual performance reviews. He encouraged us to let him know when individual cases of non-implementation occurred so that they could follow this up with the individual caseworker.

Although they were not intending to do a major review of the Gender API at this stage, they would consider specific ideas for improvement at this stage. He agreed that we could help to scope the current 15 day training for staff working on the NAM to ascertain that gender issues are covered sufficiently, and to us providing relevant workshops. Jeremy Oppenheim said he would talk with senior colleagues about our suggestion of having someone at senior management level responsible for gender issues. He agreed that all new policies should be considered in relation to gender but was unsure how to do this given the mindset within the Immigration and Nationality Department (thus recognising implicitly a major issue often described as the Home Office ‘culture’ which is often a culture of disbelief of asylum applicants). He recognised that the new Gender Equality Duty coming into force in April 2007 was relevant to ensuring that all policies complied with the needs of women and men. [9]

Jeremy Oppenheim concluded by saying that he would want to review progress on our recommendations in six months. Our impression was very positive and we are optimistic that there will be some movement on some of our suggestions.

In addition, as already mentioned, the Home Office has already agreed to work with RWRP collaboratively to improve the Home Office understanding and coverage of women’s rights issues in country of origin information reports.

Raising awareness of gender guidance amongst immigration lawyers

The second strand of the campaign is to raise awareness of the Gender API amongst immigration lawyers. Lack of understanding of gender issues will in many cases constitute poor legal representation and is as detrimental to a fair assessment of women’s asylum claims as the Home Office’s own shortcomings. Our campaign, supported by our report, is an opportunity for lawyers to be informed, sometimes for the first time, or get to know more about the issues and principles outlined in the gender guidance, with illustrative examples of how these principles are not being pursued.

Also, we believe that, as a client’s legal representative, immigration and asylum lawyers are in a good position to remind IND caseworkers to follow the API and to raise any lack of implementation at appeal. We believe this to be an important part of their advocacy role on behalf of women asylum seekers. To raise awareness, we are circulating our report or its executive summary and campaign information to the major NGOs and law firms that work in this sector. We are also placing articles in relevant journals and in-house newsletters.

Empowering women asylum seekers by knowing about their rights during the asylum process

Finally we believe that women asylum seekers themselves should be empowered to campaign for their own rights in relation to their asylum claims. As women who have travelled long distances to seek protection from human rights abuses, we think they will have the courage to demand their rights. But they cannot do this unless they know what these rights are. We are producing multilingual leaflets summarising the Gender API which we will distribute widely, particularly through the one stop shop agencies that exist for people when they first arrive. We hope having such a leaflet, in their first language and in English, will enable women to raise any relevant issues with their legal representatives and/or with IND caseworkers. We are also hoping to produce a CD that explains their rights in a dramatic form and distribute this to community radio networks.

This work demonstrates the link which the RWRP at Asylum Aid is able to make between the three functions of casework, research and campaigning. The experience we gain from casework with women claiming asylum is used to determine research/campaigning projects. This casework experience is also incorporated into the research to provide hard evidence of the difficulties women asylum seekers face. The research highlights the needs and demonstrates why change is required, as well as making recommendations outlining what measures should be taken to overcome the deficiencies shown up by the research. At that point our campaigning arm swings into action, using the research as the evidence base, and using a range of mechanisms to influence the appropriate people to implement the recommendations. This virtuous circle is one of the key features of RWRP’s work and so far has proved very effective in this latest campaign on improving the use of gender guidelines at various levels of the asylum process.

appendix : list of references and online resources

Advisory Panel on Country Information (APCI), Fifth meeting 8 September 2005, APCI.5.M : Minutes, available online at
www.apci.org.uk/PDF/apci5m.pdf.

Amnesty International, Get It Right : How Home Office Decision Making Fails Refugees, Amnesty International UK : London, February 2004, online at www.amnesty.org.uk/action/camp/refugees/getitright.shtml.

Asylum Aid, No Reason At All, Asylum Aid : London, 1995.

Asylum Aid, Still No Reason At All, Asylum Aid : London, 1999.

Back, L., Farrell, B. and Vandermass, E., Report on the South London Citizen’s Enquiry into Service Provision by the Immigration and Nationality Directorate at Lunar House, South London Citizens : London, 2005.

Baldaccini, A., Providing Protection in the 21st century, Refugee Rights at the heart of UK asylum policy, ARC : London, 2004.

Berkowitz, N., and Jarvis, C., Asylum Gender Guidelines, IAA : London, 2000.

Bail for Immigration Detainees (BID) and Asylum Aid, Justice Denied : Asylum and Immigration Legal Aid – a System in Crisis, BID/Asylum Aid : London, 2005, online at www.asylumaid.org.uk.

Bögner, Diana, ‘What prevents refugees and asylum seekers exposed to violence from disclosing trauma’, Doctoral Thesis in Clinical Psychology (UCL), 2005, extract on file.

Ceneda, S., Women Asylum Seekers in the UK : a Gender Perspective – Some Facts and Figures, RWRP, Asylum Aid : London, 2003.

Ceneda, S., Cutler, S., ‘They took me away’, Women’s experiences of immigration detention in the UK, Asylum Aid : London, 2004, online at www.asylumaid.org.uk.

Fraser, June, ‘Review of case law on Particular Social Group from 1999 to 2005’, Women’s Unit, Refugee Legal Project (Legal Services Agency) : Glasgow, 2005.

Home Office API, Assessing the claim, online at
Home Office API, Gender issues in the asylum claim, online at : www.ind.homeoffice.gov.uk/ind/en/home/laws___policy/policy_instructions/apis/gender_issues_in_the.html.

Home Office API, Gender issues in the asylum claim, online at
www.ind.homeoffice.gov.uk/ind/en/home/laws___policy/policy_instructions/apis/gender_issues_in_the.html.

Home Office API, Membership of a particular social group, online at : www.ind.homeoffice.gov.uk/ind/en/home/laws___policy/policy_instructions/apis/membership_of_a_particular.html.

Home Office, Operational Enforcement Manual, Home Office Immigration and Nationality Directorate, on file.

Immigration Advisory Service (IAS), Home Office Country Information Analysis, online at
www.iasuk.org/C2B/document_tree/ViewADocument.asp ?ID=259&CatID=60

Immigration and Nationality Directorate (IND), Fast Track Processes Suitability List, November 2004, on file.

Immigration and Nationality Directorate (IND), Detained Fast Track Processes Operational Instruction : Flexibility in the fast track process, April 2005, at
www.ind.homeoffice.gov.uk/ind/en/home/0/detained_fast_track.Maincontent.0001.file.tmp/Flexibilitydocument.pdf.

Immigration and Nationality Directorate (IND), Asylum Claimants Suitable for Detained Fast Track Process, Immigration Service Operational Instruction, February 2006, on file.

Legal Action for Women, Black Women’s Rape Action Project, Women Against Rape, A “Bleak House” for Our Times : An investigation into women’s rights violations at Yarl’s Wood Removal Centre, Crossroad Books : London, 2005.

Legal Services Commission, Immigration Services Team Newsletter, London, 20 June 2005.

Migrationsverket, Gender-based persecution : Guidelines for investigation and evaluation of the needs of women for protection, 28 March 2001, online at www.migrationsverket.se/pdffiler/vemfar/kvinnoen.pdf.
Morgan, B. et al., Home Office Research Study 271, Country of origin information : a user and content evaluation, Home Office Research, Development and Statistics Directorate : London, 2003.

National Audit Office (NAO), Improving the speed and quality of asylum decisions, NAO : London, June 2004.

Refugee Women’s Legal Group (RWLG), Gender Guidelines for the Determination of Asylum Claims in the UK, RWLG : London, July 1998.

Refugee Women’s Resource Project (RWRP), Gender issues in assessing asylum claims : spreading good practice across the European Union, briefing tabled by the UK Government at the Intergovernmental Committee Asylum Working Group meeting in Geneva on 15/16 November 2005, available at www.asylumaid.org.uk.

Richards, S., Singer, D. & Steel, M., Hope Betrayed : Victims of Trafficking and their claims for asylum, Poppy Project and RWRP : London, 2006, available online at www.asylumaid.org.uk.

Smith, E., Right First Time ?, Medical Foundation for the Care of Victims of Torture : London, 19 February 2004. See synopsis and conclusions at
www.torturecare.org.uk/publications/reportHomeOffice.htm.

UNHCR, Guidelines on the Protection of Refugee Women, UNHCR : Geneva, 1991, online at
www.unhcr.org/cgi-bin/texis/vtx/publ/opendoc.pdf ?tbl=PUBL&id=3d4f915e4.

UNHCR, Guidelines on International Protection : Gender-Related Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, HCR/GIP/02/01, 7 May 2002 online at
www.unhcr.org/cgi-bin/texis/vtx/publ/opendoc.pdf ?tbl=PUBL&id=3d58ddef4.

UNHCR, Quality Initiative Project, 1st Report to the Minister, (undated).

UNHCR, Quality Initiative Project, 2nd Report to the Minister, (undated, prob. Autumn 2005).

UNHCR QI reports and responses from the Minister available via the Home Office weblink at
www.ind.homeoffice.gov.uk/ind/en/home/about_us/reports.html.

[1] The API on gender guidance can be found online at : www.ind.homeoffice.gov.uk/in... (accessed in March 2006).

[2] Guidelines rather than new legislated measures are favoured precisely because protection from gender-based persecution is already provided for in the law. See Canadian Council for Refugees, International Conference on Refugee Women Fleeing Gender-Based Persecution : Conference Proceedings, Montreal, Canada, 4-6 May 2001, p. 28-29.

[3] RWLG’s Gender Guidelines can be found online at www.rwlg.org.

[4] Ibid., p. 29.

[5] Reference to the new API was included in point 14 of the notes to editors of a press release on the Female Genital Mutilation Act. Home Office, Press Release, 3 March 2004.

[6] Ceneda, S. Women asylum seekers in the UK : A gender perspective. Some facts and figures, RWRP : London, February 2003. See in particular pp. 157-163.

[7] See APCI, www.apci.org.uk/

[8] UNHCR assessed 438 initial decisions between March 2004 and August 2005. See UNHCR Quality Initiative Project, Second Report to the Minister, pp. 6 and 11 available online at www.ind.homeoffice.gov.uk/in....

[9] The Gender Equality Duty, was brought in by the Equality Act 2006 in February 2006. The Act introduces a general duty to eliminate unlawful sex discrimination and promote equality of opportunity for women and men. The Gender Equality Duty applies to all public authorities and provides a positive obligation on the them to identify issues for sex equality in their services, employment and policy making. We believe that the Gender API is one way of ensuring the different needs of women asylum seekers are met.