A last resort? Women asylum seekers and the

Transcription

1 Refugee Women s Resource Project (RWRP) at Asylum Aid A last resort? Women asylum seekers and the Refugee Women s Resource Project UN Special Rapporteur on violence against women (RWRP) at Asylum Aid Debora Singer Asylum Aid, December 2006

2 A last resort? Women asylum seekers and the UN Special Rapporteur on violence against women Debora Singer, Refugee Women s Resource Project, Asylum Aid based on a dissertation written as part of an MA in Refugee Studies at University of East London Contents Executive Summary...4 Introduction Rationale for research Context Women and international human rights law Women seeking asylum The Special Rapporteur on violence against women Special Procedures Role of the Special Rapporteur on violence against women Special Rapporteur on violence against women and women seeking asylum 16 4 Research design Respondents UN expert and officials Advocates who contacted the SRVAW for asylum seeking women People who have approached Special Rapporteurs in other cases Lawyers who represent asylum seeking women Findings Women asylum seekers use of the mechanism Case of Nepalese woman in the United Kingdom Cases of Iranian women in Turkey Impact of the mechanism in these cases Use of the Special Procedures in the UK Cases involving the SRVAW Sur place claim How UK lawyers consider the Special Procedures...27

3 6 The Special Rapporteur s mechanism Confidentiality Follow up Understanding how the mechanism works Impact of the mechanism Promotion Discussion Remedies Legal remedies Sur place claims Country guidance Other cases Legal remedies in general Strategic remedies Discussion...40 Conclusion...44 Recommendations...46 Annex 1... Mandate of the UN Special Rapporteur on violence against women...48 Annex 2 Extract from SRVAW annual report - cases of Iranian women in Turkey...49 Annex 3 Cases of women asylum seekers reported by the Special Rapporteur on violence against women.51 Bibliography

4 Executive Summary This report considers whether the individual complaints mechanism of the United Nations Special Rapporteur on violence against women (SRVAW) might benefit women asylum seekers in the UK. It analyses the cases of those women asylum seekers in a number of countries who have already used this mechanism in relation to their asylum determination process. The report puts the research into the context of women and international human rights law and the United Nations Special Procedures, of which the SRVAW mechanism is one. The respondents interviewed for this research fell into four groups: the SRVAW and UN officials; the advocates who contacted the Special Rapporteur on behalf of women asylum seekers; others in the UK who have involved a Special Rapporteur, and lawyers in the UK who specialise in work with asylum seeking women. The mechanism had a positive effect in five of the eight cases of women asylum seekers who used it, but possibly had a detrimental effect in one. Its strong confidentiality rules and lack of follow up involving the government and/or the source limit its effectiveness; a number of recommendations are made in relation to this. The research also identifies a disparity for women asylum seekers in the UK between what the SRVAW could provide in terms of legal remedy and in strategic terms. In terms of a legal remedy, the positive effect of the mechanism was clearest for women asylum seekers in countries with a less developed judicial system than the UK. The only clear case where the SRVAW s mechanism could be useful in the UK is in creating a sur place claim where mention of a woman in the SRVAW s annual report would put her at risk if she were to return to her country of origin. In other cases in the UK, even if the SRVAW were to include more specific information or observations in her annual reports, it is unlikely that this would provide new evidence that would not have already been available to the woman and her lawyer and formed the basis of a fresh claim. Even with improvements to its workings, the SRVAW s mechanism would have limited use in providing a legal remedy for women asylum seekers in determining their asylum claims in the UK because the UK has an extensive judicial process which allows fresh claims to be considered. The SRVAW and Special Procedures branch staff should encourage the use of the SRVAW mechanism for women asylum seekers in countries where the judicial process is less extensive. 4

5 In terms of a political or strategic remedy for women asylum seekers in the UK, the benefit of the SRVAW s annual reports is limited both by the low number of cases referred to her and also by the lack of detailed observations or analysis provided. A very small catalogue of cases of women asylum seekers, with only one from the UK, cannot reveal any trends that could be used politically or strategically. An analysis of trends could be built on if more cases were communicated to the SRVAW or if a case was used strategically to raise awareness of a particular issue. However, with the mechanism unable to offer a definite legal remedy, women s legal representatives are unlikely to be motivated to approach the SRVAW about their clients. The SRVAW s reports are clearly useful in providing country research to support women s asylum claims. Legal representatives should be encouraged to consider information from the SRVAW s reports when preparing cases. The SRVAW could also produce her annual thematic report on the topic of women asylum seekers and refugees; NGOs could lobby for this. Finally, the regional consultation which the SRVAW is to hold in London in January 2007 offers a strategic opportunity to progress the issues which women asylum seekers face. Topics to be covered include asylum and immigration. The issues relating to asylum seeking women that fall within the SRVAW s mandate are: 1. Gender guidance 2. Fast track asylum determination procedure 3. Internal flight alternative (relocating to another part of country of origin) 4. Detention 5. Forced removal 6. Destitution The report concludes that even if the individual complaints mechanism of the Special Rapporteur on violence against women were improved, it would have little to add to the asylum determination process for women asylum seekers in the UK. However, the thematic reports and country/regional visits of the Special Rapporteur on violence against women could be used strategically to progress the policy issues raised by the situation of women asylum seekers. 5

6 Introduction for human rights ideas to be effective they need to be translated into local terms and situated within local contexts of power and meaning. 1 On a mission to the Netherlands in July 2006 the current SRVAW encouraged the use of the communications procedure, document your cases and communicate them with us. She pointed out that people assume that these [European] countries are problem free, that they have achieved high standards of human rights but problems in one part of the world are manifesting other types of problems here [in Europe] so only by constantly cataloguing these new problems and bringing them to the attention of authorities can we strive for improving conditions. 2 In 2005, Asylum Aid published research on how the individual complaints mechanisms of four international human rights mechanisms might be used to support the rights of women claiming asylum in the UK. 3 This covered the Optional Protocol to the Convention for the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention Against Torture (CAT), the Special Rapporteur on torture and the Special Rapporteur on violence against women. To discuss this, the Law Society co-hosted a seminar on 13 December 2005 which was attended by 30 people comprising lawyers, practitioners and academics. This was to test out the practicalities of using such mechanisms and the response was encouraging. This current report draws on that research and develops it in relation to the SRVAW. 1 S. Merry, Human rights and gender violence: translating international law into local justice (Chicago: University of Chicago Press, 2006), 1. 2 Y. Ertürk, speaking at a meeting in Amsterdam during her mission to the Netherlands, 2-11 July 2006, The Special Rapporteurs, part 3, BBC World Service, 13 September D. Singer, International human rights and women asylum seekers (London: Asylum Aid, 2005). 6

7 1 Rationale for research There are a number of reasons why it was thought timely to investigate the use of the SRVAW mechanism on behalf of women asylum seekers. Firstly, international human rights mechanisms are used less by people in the UK than by people in developing countries. Furthermore, of all the communications sent by the Special Procedures of the United Nations Office of the High Commissioner for Human Rights (OHCHR) in 2005, only 14% were about women. Secondly, the political environment in the UK is increasingly hostile to asylum seekers with reduced legal advice available to them. 4 The Home Office policy which should enable women s asylum claims to be fairly determined is not being implemented. 5 Given the barriers which women face in having their asylum claims determined fairly, the possibility that there might be other mechanisms that could help women s asylum claims, such as the SRVAW s, was considered worth exploring. Apart from Asylum Aid s research mentioned in the Introduction, the only other research that considers UN mechanisms in relation to refugees and in particular people seeking asylum, is that of Doerfel (2005) which looks at what protection the Convention Against Torture provides for them. He identifies some positive decisions that involve women asylum seekers. 6 However, his analysis finds that the number of cases which the Committee Against Torture has allowed has halved in the second five years of its existence despite increasing human rights violations and restrictive asylum practices, even though there have been more and better substantiated submissions to the CAT. He recommends that those working on behalf of asylum seekers do not waste their time on the CAT but instead concentrate your efforts on international mechanisms willing and able to intervene on behalf of persons who fear human rights violations on return, such as UN Special Rapporteurs who take action both in relation to individual cases as well as draw attention to general patterns of violations 4 Bail for Immigration Detainees and Asylum Aid, Justice Denied (London: Asylum Aid, April 2005). 5 S. Ceneda and C. Palmer, Lip service or implementation? Home Office Gender Guidance and Women Asylum Seekers (London: Asylum Aid, 2006). 6 For example, AS v Sweden: UN doc. CAT/C/25/D/149/1999, 15 February 2001 and Kisoki v Sweden: UN doc. CAT/C/16/D/41/1996, 8 May

8 against asylum seekers and refugees. 7 Finally, although the current work plan of the OHCHR includes the setting up of a unit to include evaluation 8, there has been limited evaluation of UN human rights mechanisms to date and there is no academic research on this. 7 J. Doerfel, The CAT and the protection of refugees (2005) 24, 2 Refugee Survey Quarterly 83-97, quote at UN General Assembly, In larger freedom: towards development, security and human rights for all : UN doc. A/59/2005/Add.3, 26 May 2005, para

9 2 Context 2.1 Women and international human rights law Despite discriminatory practices against women and the violation of their rights, women s rights are not commonly incorporated into the discourse of human rights. The narrow definition of human rights, recognized by many in the West as solely a matter of state violation of civil and political liberties, impedes consideration of women s rights. 9 As a result many States fail to discharge their obligations under customary international law to protect women s human rights. 10 The violations which women suffer are thus marginalised, reflecting women s subordinate position. 11 Practices such as bride payment, forced marriage, seclusion and veiling, female genital mutilation and polygamy were not perceived as human rights violations but as regrettable aspects of a situation where different customs prevailed. 12 Womanhood means a particular and universal vulnerability to diverse forms of physical and psychological violence ; such violence is tolerated or sanctioned by the state and community leaders. 13 Women experience persecution just because they are women. 14 The first SRVAW identified the family, the community and the state as the institutions where violence against women occurs and stated that such violence is a structural problem due to an imbalance of power between men and women rather than being random or circumstantial. 15 A major constraint in dealing with women s rights as human rights is that international law focuses on the public sphere whilst many violations of women s rights occur in the private sphere. 9 C. Bunch, Women s rights as human rights (1990) 12 Human Rights Quarterly at R. Cook, Accountability in international law for violations of women s rights by non-state actors in D.G. Dallmeyer (ed), Reconceiving reality: women and international law (Massuchussetts: The American Society of International Law, 1993), A. Callamard, A methodology for gender-sensitive research (Canada: Amnesty International and International Centre for Human Rights and Democratic Development, 1999), R. Eisler, Human rights: toward an integrated theory for action (1987) 9 Human Rights Quarterly, H. Charlesworth and C. Chinkin, The boundaries of international law: a feminist analysis (Manchester: Manchester Universtity Press, 2000), R. Haines, The importance of mainstreaming refugee claims by women in Gender-related persecution and refugees (2005) UNHCR Discussion Paper No. 1/2005, R. Coomeraswamy, Further promotion and encouragement of human rights and fundamental freedoms, including the question of the programme and methods of work of the Commission : UN doc. E/CN.4/1995/42, 22 November 1994, para

10 To address this constraint, the United Nations has put in place international human rights mechanisms to recognise and protect women s rights. These mechanisms include the Convention for the Elimination of All Forms of Discrimination against Women (CEDAW) 16, adopted by the UN General Assembly in 1979 and ratified by the UK in 1986, and the UN Declaration on the Elimination of Violence Against Women 17 which emerged from the UN Vienna World Conference for Human Rights in The Declaration adopted the concept of due diligence, which means that even if the state was not compliant in violations of human rights it is obliged to exercise due diligence to prevent, investigate and punish such violations by private individuals. 18 In 2006 the UN produced the first in-depth study on all forms and manifestations of violence against women. It covers the scale, causes, consequences and costs of violence against women and identifies examples of best practice for eliminating it. It recognises that addressing violence against women as a human rights issue empowers women, positioning them not as passive recipients of discretionary benefits but as active rights holders Women seeking asylum When women attempt to gain protection from human rights violations such as those described above by seeking asylum in a foreign country, they face new problems. They flee persecution constituting sexual violence or other genderrelated persecution 20 and refugee women are frequently persecuted for reasons which are similar to their male counterparts. Many are targeted because they are political activists 21 However, the right to asylum defined in the Refugee Convention was limited to those experiencing forms of persecution associated with the formal politics typically conducted by men, and excluded most activities in which women might be key actors economic and social life and the private sphere in general. 22 In interpreting the Refugee Convention women s experiences have been marginalised Convention on the Elimination of all forms of Discrimination against Women, United Nations General Assembly resolution 34/180, 18 December Declaration on the Elimination of Violence against Women, UN General Assembly resolution 48/104, 20 December R. Cook, Accountability in international law for violations of women s rights by non-state actors in D.G. Dallmeyer (ed), Reconceiving reality: women and international law (Massuchussetts: The American Society of International Law, 1993), UN General Assembly, In-depth study on all forms of violence against women : UN doc. A/61/122/Add.1, 6 July 2006, Report of the Fourth World Conference on Women, held in Beijing from 4-15 September 1995 : UN doc. A/CONF. 177/20, 17 October 1995, para H. Crawley, Refugees and gender: law and process (Bristol: Jordan, 2001), P. Marfleet, Refugees in a global era, (Basingstoke: Palgrave Macmillan, 2006), H. Crawley, Refugees and gender: law and process (Bristol: Jordan, 2001), 5. 10

11 Despite women suffering human rights violations because of their gender 24, the Refugee Convention does not include gender as one of the grounds on which an individual can claim asylum. It is a sad irony that the Refugee Convention, a human rights treaty based on the principle of non-discrimination, is so commonly applied to exclude the legitimate claims to refugee status by women. 25 The United Nations first specifically recognised the plight of women refugees in 1979 when the General Assembly added an item on the situation of women refugees to the provisional agenda for the World Conference of the UN Decade of Women. 26 More recently the Beijing Platform for Action included a strategic objective on providing protection for refugee women. 27 This objective focuses mainly on women living in refugee camps. It also includes three paragraphs about refugee determination procedures, stating that women and men should have equal access to and treatment under refugee determination procedures. It urges states to recognise as refugees women whose claim is based on genderrelated persecution, to promote efforts by states to develop gender guidance, and to disseminate and implement the gender guidance of the United Nations High Commissioner for Refugees (UNHCR). 28 In its 2006 in-depth study on violence against women, the UN General Assembly recommends that states adopt a gender-sensitive approach to the granting of asylum. 29 The UK 30, Canada 31, the United States of America 32 and Australia 33 all have similar guidelines to the UNHCR s. These guidelines recognise as persecution 24 Gender refers to cultural definitions of masculinity and femininity, whereas sex refers to the transcultural biological division of the human species into masculine and feminine classes E. Faithorn, Gender bias and sex bias: removing our cultural blinders in the field in T. Whitehead and M. Conaway (eds), Self, sex and gender in cross-cultural fieldwork (Illinois: University of Illinois Press, 1986), R. Haines, The importance of mainstreaming refugee claims by women in Gender-related persecution and refugees, UNHCR Discussion Paper No. 1/2005, 2005, UN doc. A/RES/34/161, 17 December 1979 cited in United Nations, The United Nations and the advancement of women, (New York: United Nations, 1996), Beijing Declaration and Platform for Action : UN doc. A/CONF. 177/20, 17 October 1995, Strategic Objective E. 5, paras 147h, 147i and 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 : UN doc. HCR/GIP/02/01, 7 May UN General Assembly, In-depth study on all forms of violence against women : UN doc. A/61/122/Add.1, 6 July 2006, Asylum Policy Instruction Gender issues in the asylum claim (London: Home Office, March 2004) um.pdf?view=binary accessed 14 September 2006 and N. Berkowitz and C. Jarvis, Asylum gender guidelines (Immigration Appellate Authority, 2000). 31 Guidelines for women refugee claimants fearing gender-related persecution, (Canadian Immigration and Refugee Board, 1993). 11

12 violations such as sexual abuse, forced abortion, forced marriage and female genital mutilation, and suggest the use of Particular Social Group as a ground in gender-based asylum claims. Using this ground partially fills the gap left by the absence of gender in the five grounds in the Refugee Convention. 34 The guidelines emphasise the need for sensitive interviewing particularly in relation to sexual violence. They state that women should be allowed to request female interviewers to make the hearing process less intimidating. They recommend that the authorities consider risk of return and country of origin information in relation to women. They are administrative directives rather than being binding in law, but they provide decision-makers with a method of interpreting or applying international refugee definitions in a gender-sensitive manner. 35 However, no European country apart from the UK and Sweden has gender guidance to refer to. 36 It is not sufficient just to have such guidance in principle. In the UK, gender guidance was incorporated into Home Office policy in March , but research published two years later demonstrated that this guidance was rarely implemented. 38 In consequence, Asylum Aid launched a campaign to persuade the Home Office to implement its own gender guidance US gender guidelines, consideration for asylum officers adjudicating asylum claims from women, (United States Immigration and Naturalization Service, Office of International Affairs, May 1995). 33 Refugee and humanitarian visa applicants: guidelines on gender issues for decision makers, (Australian Department of Immigration and Multicultural Affairs, 1996). 34 J.Fitzpatrick, The use of international human rights norms to combat violence against women in R. Cook (ed), Human rights of women: national and international perspectives (Philadelphia: University of Pennsylvania, 1994), at A. Macklin, A comparative analysis of the Canadian, United States and Australian directives on gender persecution and refugee status in D. Indra (ed), Engendering forced migration: theory and practice (Oxford: Berghahn Books, 1999), at H. Crawley and T. Lester, Comparative analysis of gender-related persecution in national asylum legislation and practice in Europe (Geneva: UNHCR, 2004). 37 Asylum Policy Instruction Gender issues in the asylum claim (London: Home Office, March 2004) um.pdf?view=binary accessed 14 September S. Ceneda and C. Palmer, Lip service or implementation? Home Office Gender Guidance and Women Asylum Seekers (London: Asylum Aid, 2006). 39 Gender Guidance campaign 12

13 3 The Special Rapporteur on violence against women 3.1 Special Procedures The SRVAW is one of a number of mandates created by the UN to monitor human rights. The UN Commission on Human Rights establishes mechanisms to examine, monitor and publicly report on human rights situations in specific countries or according to particular themes. These mechanisms are collectively known as Special Procedures. They consist of individual experts and working groups which are mandated to investigate and respond quickly to situations of human rights abuse in all parts of the world, irrespective of whether a particular government is a party to any of the relevant human rights treaties. There are currently 28 thematic and 13 country-specific mandates. 40 Many of the individual experts are given the title of Special Rapporteur. The Special Rapporteurs activities cover: submitting thematic reports to the Commission on Human Rights (replaced by the Human Rights Council in March ), undertaking country visits and reporting on these, sending communications on alleged violations of human rights to the governments concerned, and issuing press releases on specific matters of grave concern. They are thus able to intervene directly with governments requesting clarification of allegations, although this cannot replace a judicial procedure. The identity of the source of the information is kept confidential. 42 Making a complaint does not require the exhaustion of domestic remedies and does not preclude taking appropriate judicial measures at the national level. 43 According to the OHCHR, whose role is to facilitate and support the work of the experts, 44 the strengths of the Special Procedures include their independence, concerted focus on an issue or situation, ability to engage directly through country visits, ongoing accessibility to victims and their advocacy role in identifying implementation gaps. 45 The OHCHR s 2005 Plan of Action suggests reform and rationalisation, particularly to address problems of coordination, overlapping mandates and lack 40 Manual of the United Nations Human Rights Special Procedures, Draft, June 2006, 3, para Human Rights Council, UN General Assembly resolution A/RES/60/251, 3 April OHCHR, Special procedures of the Commission on Human Rights: Urgent appeals and letters of allegation on human rights violations (Geneva: United Nations, November 2004). 43 Manual of the United Nations Human Rights Special Procedures, Draft, June 2006, 11, para Manual of the United Nations Human Rights Special Procedures, Draft, June 2006, 24, para UN General Assembly, In larger freedom: towards development, security and human rights for all, UN doc. A/59/2005/Add.3, 26 May 2005, para

14 of resources. 46 This plan emphasises strengthening the OHCHR s follow up work and its efforts to assess its impact and achievements. A recurring theme is that more resources are needed to provide additional support to the Special Procedures. 47 On its creation in March 2006 the new Human Rights Council called for the maintenance of the system of Special Procedures and a process of review over the forthcoming year. 48 In September 2006 the mandate-holders published the draft Manual of the UN Human Rights Special Procedures (the Manual), 49 described as a living document to reflect the evolving practice of special procedures Role of the Special Rapporteur on violence against women The Commission on Human Rights resolved to appoint a Special Rapporteur on violence against women, its causes and consequences in Her role is to seek and receive information on violence against women from a range of organisations and to recommend measures to eliminate violence against women and its causes and to remedy its consequences. 51 The UN defines violence against women as any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life, and including domestic violence, crimes committed in the name of honour, crimes committed in the name of passion, trafficking in women and girls, traditional practices harmful to women, including female genital mutilation, early and forced marriages, female infanticide, dowry-related violence and deaths, acid attacks and 46 UN General Assembly, In larger freedom: towards development, security and human rights for all, UN doc. A/59/2005/Add.3, 26 May 2005, para UN General Assembly, In larger freedom: towards development, security and human rights for all : UN doc. A/59/2005/Add.3, 26 May 2005, para UN General Assembly, Human Rights Council, UN resolution A/RES/60/251, 3 April Manual of the United Nations Human Rights Special Procedures, Draft, June 2006, 50 G. McDougall, Report of the thirteenth meeting of Special Rapporteurs/Representatives, independent experts and chairpersons of working groups of the Special Procedures of the Commission on Human Rights and of the Advisory Services Programme, Geneva, June 2006, United Nations Commission on Human Rights, Question of integrating the rights of women into the human rights mechanisms of the United Nations and the elimination of violence against women, UN Resolution 1994/45, 4 March 1994, para 6, 7(a) (b). 14

15 violence related to commercial sexual exploitation as well as economic exploitation. 52 As part of her mandate, the SRVAW is able to receive individual complaints (see annex 1 for a summary of her mandate). When she receives reliable and credible information regarding alleged cases of violence against women, she transmits allegation letters requiring the Government concerned to clarify the substance of the allegation received. If there is an imminent threat or fear of threat to the right to personal integrity or the life of a woman, she submits instead an urgent appeal to the Government concerned appealing to them to ensure effective protection for the woman. She can process cases only where the alleged violence or threats of violence are directed against women because of their sex. 53 Governments are asked to respond to letters of allegation within two months 54 and to urgent appeals within thirty days. 55 The dialogue established with governments does not imply an accusation but rather a request for clarification to ensure the effective protection, investigation and punishment of acts of violence against women and compensation for victims of such violence. 56 Since 2000, the SRVAW has provided a standard reporting form for individual complaints which asks for information concerning the alleged incident, perpetrators, what complaints have been filed or why they have not and any investigations that have ensued. Such information may clarify whether the government failed to exercise due diligence to prevent, investigate, punish or ensure compensation if the perpetrators were private individuals (rather than government officials). 57 Because questions of state responsibility for abuses need not be addressed in a judgemental way, the Special Rapporteur s role is to stop abuses without necessarily casting blame. She can thus combine a humanitarian role of seeking redress for individual victims with an analytic exploration of the nature of violence 52 Declaration on the Elimination of Violence against Women, UN General Assembly resolution 48/104, 20 December OHCHR website: Special Rapporteur on violence against women, its causes and consequences: Individual complaints accessed 14 September Manual of the United Nations Human Rights Special Procedures, Draft, June 2006, 11, para Manual of the United Nations Human Rights Special Procedures, Draft, June 2006, 12, para OHCHR website: Special Rapporteur on violence against women, its causes and consequences: Individual complaints accessed 14 September R. Coomaraswamy, Integration of the human rights of women and the gender perspective: violence against women : UN doc. E/CN.4/2000/68/Add.1, Annex, 27 January 2000; form available at accessed 14 September

16 against women; she can also examine the country situation through her visits and can add visibility to the previously neglected question of violence against women. 58 The creation of the role of the SRVAW provides opportunities to pressure governments to accept the seriousness of violence against women and contributes to standard setting and raising awareness. 59 A strength of the mechanism is that NGOs can use it to support their concerns. During the most recent complete year (2005) the SRVAW sent 89 communications regarding 130 victims to 34 countries amounting to 8% of the communications sent by all the Special Procedures. 11% were allegation letters, 50% were joint allegation letters and 39% were joint urgent appeals (meaning jointly with other Special Rapporteurs). The SRVAW received replies from governments in 26% of cases. In 14% of cases further information was received from the source of the complaint and in 10% of cases the Special Rapporteur made some form of follow up Special Rapporteur on violence against women and women seeking asylum The SRVAW has acknowledged women seeking asylum as being within her remit. Her first report in 1994 included a final section on refugees concentrating on refugee women in camps and abuses they suffer there or in flight. She notes that many women flee because of rape. The report also points out that there are extensive evidentiary hurdles to overcome for those who reach a country in which they can claim asylum. She discusses using the Particular Social Group ground of the Refugee Convention for gender-related persecution including persecution for transgressing social mores. 61 In 2000 the SRVAW reiterated that government bodies must adopt and implement guidelines recognising gender-related persecution as a basis for women to claim refugee status. 62 One of the resolutions renewing the Special Rapporteur s three yearly mandate in J. Fitzpatrick, The use of international human rights norms to combat violence against women in R. Cook (ed), Human rights of women: national and international perspectives (Philadelphia: University of Pennsylvania Press, 1994), at A. Satkunanathan, The UN SRVAW: creating space for feminist intervention or perpetrating the notion of the universal subject? (2004) 14 INTERIGHTS Bulletin Y. Ertürk, Integration of the human rights perspective of women and a gender perspective: violence against women, Communications to and from Governments : UN doc. E/CN.4/2006/61/Add.1, 27 March 2006, R. Coomaraswamy, Preliminary Report of the SRVAW to the Commission on Human Rights : UN doc. E/CN.4/1995/42, 22 November R. Coomaraswamy, Integration of the human rights of women and the gender perspective, violence against women : UN doc. E/CN.4/2000/68, 29 February 2000, para 122(f). 16

17 further urges States to mainstream a gender perspective into national immigration and asylum policies, regulations and practices, as appropriate, in order to promote and protect the rights of all women, including the consideration of steps to recognize gender-related persecution and violence when assessing grounds for granting refugee status and asylum. 63 Refugee women are often viewed in a passive role instead of being regarded as actively shaping their lives. 64 Female applicants often have no voice in the asylum process and their lawyers can be seen as constructing their role, as trying to fit them into one of two stereotypes: the classic dissident or the victim needing protection. 65 In addition, women face gender specific barriers to legal remedies, including lack of legal literacy and capacity to initiate legal action, as well as less access to economic resources than men. 66 To overcome such barriers, use of the SRVAW s mechanism may provide opportunities for women facing human rights violations because it is an accessible procedure and cheap to use. 67 The previous two sections demonstrate a gap in protection for women afforded by international human rights law as well as a gap in the effectiveness of the Special Procedures set up to provide such protection. 63 OHCHR, Elimination of violence against women, Commission on Human Rights resolution 2003/45, 23 April 2003, para W. Giles, Aid recipients or citizens? Canada s role in managing the gender relations of forced migration in W. Giles, H. Moussa and P. Van Esterik (eds), Development and diaspora: gender and the refugee experience (Ontario: Artemis Enterprises, 1996), T. Spijkerboer, Gender and refugee status, (Aldershot: Dartmouth Publishing, 2000), A. Callamard, A methodology for gender-sensitive research (Canada: Amnesty International and International Centre for Human Rights and Democratic Development, 1999), A. Byrnes, Toward more effective enforcement of women s human rights through the use of international human rights law and procedures in R. Cook (ed), Human rights of women: national and international perspectives (Philadelphia: University of Pennsylvania, 1994), at

18 4 Research design Purposive sampling was used to identify subjects. The people interviewed were identified either by their professional role, as in the cases of the UN expert and officials, or by the contact they had had with the SRVAW regarding women asylum seekers, or by their involvement with a Special Rapporteur on other issues. Snowball sampling was used to identify lawyers with experience of representing women asylum seekers. Semi-structured interviews were used. All five of the interviews in the UK were face to face and the three with respondents abroad were by phone. This research focused on the women s advocates instead of approaching the women asylum seekers themselves. This was for two reasons. Firstly, the advocates were expected to understand how the mechanism of the SRVAW worked and what effect its use might have on women s asylum claims. They were also likely to have records of what happened to their clients. Secondly, given that the women were likely to only be able to provide limited information, it was considered unethical to trace them to ask questions about a difficult and potentially traumatic process that they went through a few years ago. For confidentiality purposes, professional titles or initials are used throughout this report. In the Special Rapporteur s reports the names of some of the asylum seeking women are provided in full, and their initials are used for the remainder. To maintain confidentiality, only their initials are used here. This research was qualitative, in that experiences and opinions were obtained from respondents and themes were then identified from their responses which were interpreted. In terms of quantitative research, the number of respondents in this study was too small to derive any significant results. The Advisory Committee of Asylum Aid s Refugee Women s Resource Project served as the steering group for this research. 4.1 Respondents UN expert and officials The Special Rapporteur on violence against women, who is based in Turkey, was interviewed along with the Associate Human Rights Officer (HRO) who works directly for her, and another HRO who had expressed interest in the topic of evaluation of the Special Procedures. Both are based at the OHCHR office in Geneva. 18

19 4.1.2 Advocates who contacted the SRVAW for asylum seeking women Each year the SRVAW submits a report to the Commission on Human Rights of her communications to and from governments. From all these reports to date (1997 to 2006) eight women asylum seekers who used this mechanism were identified along with all the communications sent by the SRVAW on their behalf and any government responses in relation to their cases. Most used it to try to prevent themselves being deported to their country of origin where they claimed they would be at risk of violence (for an example, see annex 2). 68 The cases are detailed below. Table 1: women asylum seekers mentioned in SRVAW s reports Date of report Name Country of origin Country of destination 2000 JW Thailand Canada 2001 AI Pakistan Canada 2002 No cases 2003 MAG Iran Sweden 2004 No cases FA 2. NMHZ 3. SP 4. RM 5. NK 2006 No cases 1-4. Iran 5. Nepal 1-4. Turkey 5. UK Despite contact with the OHCHR and using international networks, I was only able to trace the source of one communication to the SRVAW, NK s barrister, but I also obtained information about the Iranian women in Turkey directly from the SRVAW. 68 This is termed refoulement. Article 33(1) of the Refugee Convention states No Contracting State shall expel or return ( refouler ) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 19

20 4.1.3 People who have approached Special Rapporteurs in other cases Two people based in the UK who had been involved in cases involving a Special Rapporteur were identified and interviewed. One was a women s rights activist who had approached the SRVAW concerning women in Iraq. Another was a caseworker who used the fact that his client had approached a Special Rapporteur to create a sur place claim Lawyers who represent asylum seeking women Lawyers known for their expertise on women s asylum issues in the UK were interviewed on whether they had used the mechanism and what they thought about it in order to see whether the mechanism would be beneficial for asylum seeking women in the UK. They were not a representative sample so these interviews cannot be generalised. A summary showing the people interviewed for this research is given below. Table 2: interviewees for research Role Relevance Code used Special Rapporteur on UN expert SRVAW Violence Against Women Associate Human Rights Assists SRVAW Associate HRO Officer Human Rights Officer Interest in evaluation of HRO Special Procedures Barrister Referred case of woman NK s barrister asylum seeker in the UK to SRVAW Women s rights activist in Referred case of Iraqi HL UK women to SRVAW Caseworker Used TB s involvement TB s caseworker with Special Procedures as sur place claim Lawyer Represents women KC asylum seekers Lawyer Represents women asylum seekers ED 20

21 5 Findings 5.1 Women asylum seekers use of the mechanism The communications to and from governments referring to the eight women asylum seekers were identified using all the SRVAW s annual reports ( ). The annual reports dated , and each mention one case of an asylum seeking women, whilst the report of 2005 includes five cases (three of which were submitted together). 72 See annex 3 for a table detailing each woman s case: her country of origin and destination country, the situation leading to her asylum claim, the situation when she approached the SRVAW and the response from and action by her government. At the time of the interview with the Associate HRO in August 2006, no asylum seekers had used the mandate during Case of Nepalese woman in the United Kingdom NK was a Maoist from Nepal. Having failed in her asylum claim and appeals, she was being detained at Heathrow airport at risk of immediate deportation from the UK when her solicitor contacted a barrister to ask whether anything else could be done on her behalf as she was at risk of gender specific human rights violations in Nepal, but he could not take her case any further. NK s barrister knew of the Special Procedures as he had previously worked for three years as a research assistant for the Special Rapporteur on torture. He thought that NK s case had exceptional facts and that lots of Special Rapporteurs could intervene because she was at risk of deportation and also facing human rights abuses on return. The barrister looked at each Special Rapporteur s mandate and picked out five Special Rapporteurs: on torture, arbitrary detention, freedom of expression, human rights defenders and violence against women who he thought would be most likely to act. He made it clear to the Special Rapporteurs that the case 69 R. Coomaraswamy, Integration of the human rights of women and the gender perspective, violence against women, communications to and from governments : UN doc. E/CN.4/2000/68/Add.1, 27 January 2000, R. Coomaraswamy, Integration of the human rights of women and the gender perspective, violence against women, communications to and from governments : UN doc. E/CN.4/2001/73/Add.1, 13 February 2001, R. Coomaraswamy, Integration of the human rights of women and the gender perspective, violence against women, communications to and from governments : UN doc. E/CN.4/2003/75/Add.2, 14 January 2003, Y. Ertürk, Integration of the human rights of women and the gender perspective, violence against women, communications to and from governments : UN doc. E/CN.4/2005/72/Add.1, 18 March 2005,

22 related to their mandates, and sent his appeal direct to each of them rather than going through the central mechanism. In this way he was able to decide for himself which Special Rapporteurs should be involved rather than leaving it for a central administrator to determine. He felt this approach was definitely a last resort for NK. Most of the Special Rapporteurs sent a joint appeal to the UK government which responded stating that they would reconsider her case as a result of the urgent appeal. The government also reported that no action would be taken to remove NK pending the results of her application to remain in the UK on the basis of a relationship to a settled person Cases of Iranian women in Turkey In the cases of FA, NMHZ and SP, three Iranian women in Turkey, the SRVAW explained that the women approached her directly by phone, shortly after her appointment as SRVAW. She guessed they must have read about her in the newspaper. There are no NGOs working on refugee rights in Turkey and mainstream human rights organisations do not deal with asylum seekers in Turkey, so they felt this was one door to knock. The three women had been refused refugee status by UNHCR; after their initial approach to the SRVAW they received deportation orders from the government of Turkey. The SRVAW then had strong grounds for action. The women had come to Turkey with their husbands, not as political refugees themselves, but in the course of time they got divorced from their husbands and had become involved in political activity in Turkey so if they were deported there was the risk that they would face family and public violence. Through the OHCHR office and jointly with other Special Rapporteurs, a joint appeal was sent to the Turkish government via their representative in Geneva. The Special Rapporteur followed this up herself as she was in Ankara. She called the Foreign Ministry and found out that the letter had been sent to the UNHCR and National Security but as she was not able to reach the right people in the latter she was unable to have an effective discussion. However, the SRVAW had useful contact with the UNHCR office which undertakes the refugee status determination process in Turkey. At meetings with UNHCR she suggested that where an asylum seeker resides in a second country for a prolonged period, their case should be reviewed intermittently as the situation may change in the course of time. As a result of the SRVAW s letter, the deportation order was lifted and the UNHCR opened the three files again. The UNHCR granted FA and SP refugee status and they were resettled in a third country, but NMHZ was not recognised as a refugee. 22

23 The SRVAW received a second complaint which came in written form on behalf of RM. Although the SRVAW thought an Iranian organisation based in Turkey or outside was probably the source, the HRO, who had access to the files, said that the SRVAW was contacted by the UNHCR Office. It would seem unusual for the UNHCR to contact the SRVAW directly in these circumstances as they are the organisation making the refugee status determination decisions. This uncertainty demonstrates the confusion over the source of communications. Because of the suggestion that UNHCR was the source, the Senior Protection Officer at UNHCR in Ankara was contacted and asked for more information on RM s case. He responded that their strict confidentiality guidelines did not allow him to disclose any information concerning an individual without their consent. However, he stated that a durable solution was found for the person and the case was solved in a satisfactory manner. A durable solution usually means that a refugee has been resettled in a third country. In her report dated 2005, after detailing the cases in Turkey, the SRVAW expressed satisfaction at the cooperation developed with UNHCR in connection with some of the cases. The increase in numbers of women asylum seekers in the 2005 report appears to be due to women in Turkey hearing of the appointment of a new SRVAW who is a Turkish national and contacting her Impact of the mechanism in these cases The cases of women asylum seekers were analysed to determine whether there was a link between the intervention of the SRVAW and the resulting action by government. In one case this link was clearly stated. The UK government s reply in NK s case says that she was detained in the belief that she would be removed These arrangements were cancelled following representations to your office and submission of a further application to remain in the United Kingdom. NK s barrister said, If there had been no intervention, they would have deported her then and there. He felt that at least the intervention led to the stay of the deportation and a review of her case. This provided only a temporary delay in her deportation as eventually the Home Office refused NK s application for leave to remain on the basis of marriage because her partner was already married. It would be interesting to know what would have happened in a case where there had been no new application and the only change in the situation had been the intervention of the Special Rapporteur. In the cases of FA and SP from Iran, the SRVAW herself stated that the deportation orders were lifted and these cases were reopened as a direct result 23

24 of her intervention and she believed that the resettlement of RM was also due to her intervention. Her intervention resulted in permanent solutions for these women. For the remaining three cases (JW, AI and MAG), the dates of the communications from the SRVAW and the response by governments were examined. In the case of JW from Thailand, the SRVAW wrote to the Canadian government on 6 th August 1999 raising concerns that she had been detained for a long time. Four days later, on 10 th August 1999, the government made the decision to refuse her refugee status. Three weeks later, she was deported. 73 This case is striking as the complaint did not raise concerns that she was at risk of being deported, merely that the lengthy detention was having a detrimental effect on her health. This suggests that the Special Rapporteur s letter may have brought JW to the notice of the authorities who then decided to deport her. In AI s case from Pakistan, the SRVAW wrote to the Canadian Government on 9 th August 2000 and they recognised her as a refugee on 14 th February It is not clear what purpose the complaint served unless it was to put pressure on the Canadian Government to make a positive decision. It is quite possible that they would have come to this decision regardless of the Special Rapporteur s intervention. In the case of MAG, from Iran, the SRVAW sent an urgent appeal on her behalf on 19 th April The Swedish Government s reply stated that on 23 rd April the Aliens Appeal Board decided to stay the plan to deport her until the Board had made its decision on her appeal. 75 Whilst it is not stated that there was any causal link between the Special Rapporteur s letter and this decision by the Aliens Appeal Board, the fact the decision was made four days after the appeal was sent suggests there might be. In summary, in five of the cases (MAG, FA, SP, RM, NK) the intervention of the SRVAW has had a positive effect in that it prevented the women being deported at that stage. In one case (JW) her intervention appears to have had a negative effect in that it may have hastened the deportation. In two cases (AI and NMHZ) it had no effect one woman received a positive outcome to her asylum claim and one a negative one, but this appears to be despite the SRVAW s 73 R. Coomaraswamy, Integration of the human rights of women and the gender perspective, violence against women, communications to and from governments : UN doc. E/CN.4/2001/73/Add.1, 13 February 2001, R. Coomaraswamy, Integration of the human rights of women and the gender perspective, violence against women, communications to and from governments : UN doc. E/CN.4/2002/83/Add.1, 28 January 2002, R. Coomaraswamy, Integration of the human rights of women and the gender perspective, violence against women, communications to and from governments : UN doc. E/CN.4/2003/75/Add.2, 14 January 2003,

25 intervention, rather than because of it. To have a positive effect in five out of eight cases is worth noting, even though the low number of cases means it is not possible to draw any wider conclusions. 5.2 Use of the Special Procedures in the UK Cases involving the SRVAW The complaints mechanism of the SRVAW is rarely used in the UK. Since the mandate was created, there have been only three communications regarding the UK. One was the case of NK already referred to above. In the 2000 report there was a communication in respect of sexual exploitation of women in prison in Bermuda as one of the UK s overseas territories. 76 In the 2006 report there was a communication to the UK government concerning children trafficked to and abused in the United Kingdom and the alleged failure of the social and immigration services in protecting vulnerable children. 77 Neither the OHCHR nor Antislavery International were able to identify the source of this communication. Another complaint from the UK was identified which did not result in inclusion in the Special Rapporteur s annual report, but the complainant, HL (a woman s rights activist) was interviewed for this research. HL was encouraged to use the mechanism when she attended a meeting at London Metropolitan University at the end of 2004 addressed by the newly appointed SRVAW. Being aware of an escalation of violence taking a gender dimension in Iraq she told the SRVAW Now I know what your role is, I am going to encourage my Iraqi colleagues to use your mechanism. She contacted the SRVAW asking whether it would be a good idea to take up this issue. The Special Rapporteur replied, asking her to send specific complaints of individuals facing discrimination, intimidation or violence or about the general environment of violence and discrimination against women. This would allow her to address the Iraqi government and also issue press statements. It would also enable her to refer to the situation in Iraq in her annual report to the Human Rights Commission. HL wrote enthusiastically to her contacts in Iraq encouraging them to provide her with specific cases. HL obtained detailed cases from Iraqi women s rights activists of acid attacks against women for not wearing the veil and abaya (all-enveloping black garment) and threats and assassinations of women s human rights activists with 76 R. Coomaraswamy, Integration of the human rights of women and the gender perspective: violence against women : UN doc. E/CN.4/2000/68/Add.1, 27 January 2000, Y. Ertürk, Integration of the human rights of women and the gender perspective, violence against women, communications to and from governments : UN doc E/CN.4/2006/61/Add.1, 27 March 2006,

26 nine reports of specific women (some anonymous) and general information about others. She sent the letter including the cases by to the SRVAW and also to the OHCHR Human Rights Officer assisting her on 28th July HL described the letter as being about the voice of women being silenced by violence so women are losing their champions in civil society to stand up for them. The Special Rapporteur s report dated 2006 does have a long entry about Iraq but this does not correspond with the information or cases in HL s letter. The only common topic is about women and girls being subjected to acid attacks for not wearing the veil or abaya. 78 It is not known whether HL s letter was acted on or why it was not included in the annual report Sur place claim TB was an asylum seeker in the UK who used the Special Procedures mechanism to attempt to overturn a decision to remove him from the UK saying there were concerns about risk of torture if he was forcibly removed to his country of origin. His caseworker was interviewed as the involvement of a Special Rapporteur was used as the basis of a sur place claim. A sur place refugee refers to someone whose protection needs arise after they have left their own country of origin. The UNHCR Handbook states: A person may become a refugee sur place as a result of his own actions, such as associating with refugees already recognized, or expressing his political views in his country of residence Regard should be had in particular to whether such actions may have come to the notice of the authorities of the person s country of origin and how they are likely to be viewed by those authorities. 79 The Special Rapporteur concerned responded by sending an urgent appeal to the UK government. The UK government s response states that the Government has in place well-established procedures for the assessment of applications involving asylum and human rights issues and that TB s case was carefully considered in the light of the domestic and international obligations of the United Kingdom, including the Convention relating to the Status of Refugees and the Convention for the Protection of Human Rights and Fundamental Freedoms [European Convention on Human Rights]. The government response goes on to 78 Y. Ertürk, Integration of the human rights perspective of women and a gender perspective, violence against women, Communications to and from Governments : UN doc. E/CN.4/2006/61/Add.1, 27 March 2006, UNHCR, Handbook on procedures and criteria for determining refugee status under the 1951 Convention and the 1967 Protocol relating to the status of refugees : UN doc. HCR/IP/4/Eng/REV.1, Geneva, 1979, reedited 1992, para

27 list all the appeal processes TB has been through and states that he does not face persecution or a risk of detention or torture or inhuman and degrading treatment if he were to be returned so there is no compelling or compassionate reason to reverse the asylum decision. TB s caseworker appealed for reconsideration to the Asylum and Immigration Tribunal giving as grounds that TB was at risk because of his political activities in the UK, because TB was mentioned in the annual report of the Special Rapporteur and because of errors in the response to the original application. The immigration judge allowed the appeal (albeit barely) saying that the previous judge had erred in his assessment of the evidence, had failed to give proper consideration to the documentary evidence and had failed to give proper consideration to the sur place claim (created by TB s continuing political activities and his being mentioned in the Special Rapporteur s reports). 5.3 How UK lawyers consider the Special Procedures The two lawyers (ED and KC, one of whom is also an Immigration Judge) who represent asylum seeking women had heard of the SRVAW but knew very little about the mechanism. Both use the reports of the SRVAW as a source of the country information which they provide to the tribunal or court to support the asylum claims of women whom they are representing. KC spoke of a case that she believed illustrated where human rights mechanisms and literature ought to have been fed into the court earlier. 80 KC felt that the Asylum and Immigration Tribunal is dismissive of UNHCR information saying it is just about humanitarian return but thought the Tribunal was more responsive to other UN reports as they detail systemic violence against women and lack of effective protection in some countries which is relevant and highly persuasive. Indeed in the case KC mentioned, the subsequent determination by the Asylum and Immigration Tribunal does quote part of a report by the SRVAW Fornah v SSHD (2005) EWCA Civ 680, 9 June SSHD v K and Fornah v SSHD (2006) UKHL 46, 18 July para 8. 27

28 6 The Special Rapporteur s mechanism 6.1 Confidentiality The theme which came up most strongly throughout the interviews was that of confidentiality. According to the Associate HRO, the confidential nature of the procedure is a major drawback. It is frustrating for NGOs as they receive only an acknowledgement of their correspondence. He said that with a nudge and a wink [he] signals taking some action. However NGOs will not see the letter to the government or the response and they have to wait for the report of the communications (to which they are alerted in the acknowledgement) which could take up to a year. He said NGOs operate in real time but with the UN you have to wait for 14 months. NGOs want to see the outcome but they submit their complaints to a big black hole and nothing appears to happen. The HRO explained that the mechanism needed to be confidential in order to get States agreement to it. Allegations are not necessarily facts, so governments need to be given the opportunity to reply before they are made public. For the mechanism to be effective, you need a back and forth communication between the source, the government and the Special Rapporteur. The HRO said The principle of confidentiality is conflicting to this dialogue. However, she thought the issue of confidentiality could be revisited. In principle staff should not even inform the source that they have approached the government. In practice, if the source asks, the staff do inform them of whether action has been taken or not but this is not systematic. The Manual of the UN Human Rights Special Procedures is ambiguous on this point, stating: Mandate-holders are not required to inform those who provide information about any subsequent measures they have taken. They may, however, choose to provide some information, but this would normally not involve disclosure of the specific contents of communications with Governments, unless an issue has been definitively dealt with by the government in question. 82 The HRO pointed out that providing feedback does not necessarily conflict with confidentiality as the communication is not made public. The risk is that a source could publicise that the UN is investigating its case. This may discredit the mechanism and States are reluctant to accept public shaming as part of the Special Procedures. NK s barrister told me how he had found out that the Special Rapporteurs had sent an urgent appeal on NK s behalf. When he sent his communication, he contacted the UK embassy in Geneva and the embassy told him they had 82 Manual of the United Nations Human Rights Special Procedures, Draft, June 2006, 8, para

29 received an urgent appeal. He felt the UK embassy was helpful because it was unusual for them to receive an urgent appeal and they wanted to cooperate. After sending her letter of concern regarding women in Iraq in July 2005, HL received no reply so in September she contacted the SRVAW. Her HRO replied that that when they received information that could form the basis of a communication to governments, that communication remained confidential until the time that the Special Rapporteur submitted her report to the Commission on Human Rights when any response from the government would also be published. At the time of writing she was not permitted to indicate whether the case had been taken up with the government. HL said that she thought that was stupid as the OHCHR should be able to tell her whether they were proceeding with it. She said the Iraqi women were incredibly dismayed and disappointed; they thought it was ridiculous and were surer now that the UN was a useless body. The staff at OHCHR were clearly aware of the difficulties created by the confidential nature of the mechanism. In the case of NK, the barrister was only able to get around this because he knew the system due to his previous employment at OHCHR. In HL s case, the lack of feedback resulted in a complete reversal of her attitude to the mechanism, from one of enthusiasm to one of disillusion. In this case there was a very clear mismatch of expectations which was never resolved. Both the OHCHR staff members thought that the problem of confidentiality could be overcome if the waiting time for each annual report were shortened by reporting to the new Human Rights Council each time it meets (at least three times a year). The HRO thought changing the reporting cycle to make it more frequent would make this mechanism a bit more dynamic creating a real dialogue with government, not just one communication, one reply. The mandateholders themselves considered this at their meeting in June 2006: there was a proposal to rethink the period during which communications remain confidential, especially given the changing periodicity of the Council. Making the communications known soon after the deadline for responding has expired would allow national actors to follow-up on them when they are still relevant Follow up Follow up is a term used frequently within OHCHR documents (see Section G. McDougall, Report of the thirteenth meeting of Special Rapporteurs/Representatives, independent experts and chairpersons of working groups of the Special Procedures of the Commission on Human Rights and of the Advisory Services Programme, Geneva, June 2006,

30 above) and by its staff and came up strongly as a theme throughout the interviews. The Manual describes follow up to communications being undertaken in several ways including maintaining a systematic and constructive dialogue with Governments concerned, the sources of communications and other partners 84 and this definition is used here. The clearest example of follow up was the SRVAW s personal intervention on behalf of the four Iranian women in Turkey. She got involved as she was in Ankara. It appears it was practical for her to follow it up as the case related to the country where she lived. This outcome demonstrates the positive outcome a personal approach can have, but it is clearly impossible for the SRVAW to follow up a case personally very often. Conversely there was a complete lack of follow up to HL s approach regarding women in Iraq. HL had been given the impression by the SRVAW that her letter was something she would take up. She had expected the SRVAW would contact the Iraqi government and say she had received a complaint from women regarding violations of human rights on Baghdad streets and hoped that she was interested in making a formal investigation. Instead the lack of reference to her allegations in the Special Rapporteur s annual report implies that it was not followed up at all. The 2006 annual report of the SRVAW shows that 26 per cent of communications result in a response from the government concerned. 85 The Associate HRO said he chases up a government response in about 15% of cases. He would like to do more follow up but said you have to get a balance between follow up and documenting new cases. The HRO told me that the extent of follow up depends on the number of communications received by each mandate. Special Rapporteurs vary as to how keen they are to do follow up, with some routinely sending reminders to unanswered letters. She said the extent of follow up also depends on the initiative of staff. There would appear to be a lack of consistency between mandates in relation to follow up. At the time of writing there was an intern at OHCHR doing follow up, going through replies received from governments to respond to them immediately or to contact the source. She had been allocated to the SRVAW because there are not a high number of communications although it is a well-established mechanism. It is of concern that such an essential part of the work of the mandate cannot be achieved without the involvement of a temporary intern. 84 Manual of the United Nations Human Rights Special Procedures, Draft, June 2006, 19, para Y. Ertürk, Integration of the human rights of women and the gender perspective, violence against women, communications to and from governments : UN doc. E/CN.4/2006/61/Add.1, 27 March 2006, 4. 30

31 The OHCHR staff told me that they keep only a few paper documents. The HRO said that they just keep the communications to and from government: the rest of the papers are thrown away. It is astonishing that no records of the initial complaints received were consistently kept. Although the database has been in place since 2004, the source of the communication concerning the UK submitted in 2005 (referred to in section above) is not specified on the database according to the HRO this is another illustration on how "fragile" our recording system is and how "fragile" the relationship with the sources is. The OHCHR staff both said they thought the OHCHR should improve the way the organisation keeps information as it needs to know who the sources are and keeping their contact details on the database would enable follow up. Surprisingly, the HRO told me that staff do not look at governments replies until they include them in the annual report. Some try to look at a reply when it is received but this is very ad hoc, not systematic. The HRO said that reporting to the Human Rights Council more frequently would make staff look at replies sooner rather than waiting until they were compiling an annual report. Looking at the annual reports, it is clear that because of delays in government replies, they sometimes do not appear in the annual report with the initial complaint but in the following report a year later (this was the case for JW and AI). Staff occasionally let NGOs see government replies to ask for their views and comments, but this is not general practice. The HRO said getting a comment from the source on the government s reply would be the ideal process but there is the problem of capacity. The Manual states some mandate-holders forward the substance of the replies received [from the government] to the source for its comments 86 and that they can inform sources of developments in relation to relevant cases. 87 The SRVAW appeared to be using her annual reports for follow up, albeit in a very indirect way, by expressing an interest in receiving further information. For example, after the communications regarding NK in her annual report dated 2005, she expresses her interest in receiving any additional information in relation to NK s application to remain in the United Kingdom. 88 It is clear that a number of procedural issues work against the follow up of cases: the fact that source information may not be kept, government replies are not looked at upon receipt, the lack of contact with sources to ask their response to the government s reply, and the lack of any system to follow up cases where no 86 Manual of the United Nations Human Rights Special Procedures, Draft, June 2006, 11, para Manual of the United Nations Human Rights Special Procedures, Draft, June 2006, 3, para Y. Ertürk, Integration of the human rights of women and the gender perspective, violence against women, communications to and from governments : UN doc. E/CN.4/2005/72/Add.1, 18 March 2005,

32 government reply arrives. The guidance quoted above from the Manual demonstrates the dichotomy between a wish to be transparent and to maintain confidentiality and, according to the HRO, Special Procedures are struggling with this contradiction. All of this would appear to limit the effectiveness of the mechanism. 6.3 Understanding how the mechanism works It was clear that there were a number of misunderstandings about how the SRVAW mechanism works. There appeared to be a reluctance to recognise how limited a Special Rapporteur s complaints mechanism is. KC and ED s ideas on how the mechanism worked were inaccurate and in both cases they thought that its scope was wider than in reality. One thought that the Special Rapporteur could intervene in an English court and another thought that she would have staff in the UK. HL thought that the Special Rapporteur could set up a range of remedies including instigating an investigation into the escalating violence against women in Iraq. Despite personal and contact between them, this misperception remained. HL did not register that her communication could be reported in the Special Rapporteur s annual report and did not consider seeking out the report. HL thought there should be more Special Rapporteurs on violence against women, say one per region, working as a team. ED thought it would be useful for the SRVAW or someone working on her behalf to act like an agent to see the woman asylum seeker at some non-court stage to facilitate her being able to speak about whether she is at risk and who from, and identify if something has gone wrong with her case. NK s barrister said it would make the mechanism more effective if States paid the UN to fund more HROs. According to the Manual, mandate-holders general practice is to provide some response to or evaluation of the exchange between themselves and Government. The main principle is that of effectiveness, and this will often call for going beyond a straightforward exchange of correspondence. 89 The SRVAW told me she would like to include an analysis of the major trends in her annual report. In her 2006 report the SRVAW provided observations at the end of each country section. These generally thanked governments for their responses or expressed regret at not receiving responses and, in either case, asked to be kept informed. She reminded governments of treaties, particularly articles of CEDAW and reiterated recommendations from treaty bodies reports. Her observations do not usually make specific reference to the individual cases. However, KC thought that to be effective for women asylum seekers in the UK, it would be essential for observations that were specific to the case to be included in the SRVAW s annual report. 89 Manual of the United Nations Human Rights Special Procedures, Draft, June 2006, 19, para

33 NK s barrister thought that a strength of the mechanism was that the SRVAW can look at trends and examples of good practice, and look at the causes and consequences of violence against women. He said that violence against women, issues regarding the private and community sphere, state protection and due diligence only seem to be covered under this mechanism whereas other Special Rapporteurs focus exclusively on governments. UN mechanisms interpret international human rights norms unimpeded by political pressures so they are more pure. 6.4 Impact of the mechanism In terms of the impact of its Special Procedures, the OHCHR recognises that while the work of the experts is often a major driving force contributing to change, it is difficult to attribute concrete results in the field of human rights to one factor. 90 The OHCHR staff said that there has been no formal evaluation of the Special Rapporteurs mechanism although there are in-house discussions and working groups trying to strengthen the mechanism and they are improving their capacity to analyse what they are doing. The Associate HRO said it was hard to assess whether the involvement of the SRVAW made a difference. However at a separate point in the interview he said initial intervention could make a real difference - it becomes an international issue and something happens on the case. The difficulty is that others are intervening too and you cannot tell whether you have had a direct impact or it is incidental. He tries to document where he can clearly see that something happened. He said it was impossible to guess the proportion of cases that had a positive outcome. Since April 2005 OHCHR staff have collected good news stories for an internal document. This does not amount to the OHCHR s own suggestion of making these public by including success stories and best practice on its website and in fact sheets. 91 As there is very limited knowledge about the impact of the communications, the HRO thought OHCHR staff should evaluate the impact. They should follow cases to see what happens. However if they were in contact with sources or victims more, they would cover fewer cases. TB s caseworker was asked what weight he put on the Special Rapporteur s reports in TB s case. He said the strongest part of TB s claim was his political 90 OHCHR, Human rights fact sheet No 27: Seventeen frequently asked questions about United Nations special rapporteurs (Geneva: United Nations, 2001), OHCHR, Strengthening Special Procedures: the way forward, 2 June 2004, 4. 33

34 involvement but the Special Rapporteur s synopsis indicates a pattern of activity which contributes to a political profile. This political activity is likely to come to be known to the authorities in his country of origin as it is in such an important public document, not an off-beat publication. The impact of the mechanism on the cases of the women asylum seekers has already been discussed in section above. 6.5 Promotion The OHCHR staff said that they and the SRVAW promote the mechanism to increase its use. The HRO thought that they should do more outreach as she feels they are missing some potential sources they get approached by traditional human rights organisations but not other organisations such as trade unions. Only 14% of victims covered by the Special Procedures in 2005 were women so they should target more women s NGOs. The HRO also said OHCHR staff are developing a package on how the Special Procedures work for training and briefing purposes and have started producing a Special Procedures Bulletin three times a year. The first came out in April but the second, covering May to August 2006, was only published in November They cover topics such as recent or coming country visits, conferences attended by Special Rapporteurs and press releases about major human rights concerns raised by Special Rapporteurs. The training package and bulletin target UN country teams and agencies ( the UN family ), NGOs and partners in civil society organisations, human rights institutions and governments. NK s barrister said he would recommend this mechanism to others. Approaching a Special Rapporteur is an easy mechanism to use and has authority to represent the moral conscience of the world community. The mechanism is fast as it can act within one day. He thought the mechanism should be promoted by NGOs and he was planning to offer training to NGOs on it. In contrast, having been very enthusiastic initially, HL now thought what a useless mechanism and no longer encourages others to use it. If someone asked her about it she said she feels caught in a dilemma as she thinks why not use a mechanism if it is there it but she got no joy from using it; I wouldn t waste my time. She called the mechanism an illusion and her involvement with it such a disaster. She said it gives the impression that it can be used by women in any part of the world as a useful way to tackle violence against women worldwide but now she realised it was not an effective mechanism. It is ironic that HL s direct involvement with the mechanism actually reduced her confidence in it. 92 OHCHR, Special Procedures Bulletin, January April OHCHR, Special Procedures Bulletin, May to August

35 6.6 Discussion The Special Rapporteur process would clearly benefit from being much more dynamic, with more dialogue being created between the source, the Special Rapporteur and the government concerned. The HRO said that the Manual will be the most important document to ensure consistency and set prerogatives regarding how the mechanism works. From the Manual and the interviews with OHCHR staff, it appeared that there is a limit to how much Special Rapporteurs can be told how to perform their role as they are independent experts. As described above, the Manual is couched in terms of encouragement or description of what some Special Rapporteurs do without declaring that all Special Rapporteurs should follow these examples. However, the Manual endeavours to reflect best practice. 94 The Manual is to be updated regularly. At their meeting in June 2006, the mandate-holders agreed to call for comments on the June 2006 draft of the Manual from governments, civil society organisations, treaty bodies experts and all other stakeholders. 95 In response to this call, the following suggestions have been compiled based on the findings described above: 1. OHCHR staff to improve record keeping, particularly to maintain information on sources consistently 2. OHCHR staff to analyse sources and extend outreach particularly targeting women s NGOs 3. The OHCHR staff to explain the process (and its limitations) more clearly to sources/potential sources alerting them to the Special Rapporteur s next annual report and the timing of this 4. The OHCHR staff to keep sources informed of what action they have taken in relation to their case, relay the substance of government responses to sources and obtain their comments to initiate a dialogue with governments 5. OHCHR staff to ensure consistency in annual reports in referring to all communications and all responses by governments 94 Manual of the United Nations Human Rights Special Procedures, Draft, June 2006, G. McDougall, Report of the thirteenth meeting of Special Rapporteurs/Representatives, independent experts and chairpersons of working groups of the Special Procedures of the Commission on Human Rights and of the Advisory Services Programme, Geneva, June 2006,

36 6. The Special Rapporteur to include more detailed observations in her annual reports, giving a more explicitly stated position on each communication 7. The Special Rapporteur to include an analysis of major trends in her annual reports 8. The reporting cycle for the Special Rapporteurs communications to and from governments to match the meeting cycle of the new Human Rights Council 9. OHCHR staff to evaluate the impact of communications 10. Good news stories (cases with a successful outcome due to the intervention of a Special Rapporteur) to be made public It was apparent from the interviews with the SRVAW and the OHCHR staff that they would wish to implement these suggestions if sufficient resources were available to them. 36

37 7 Remedies There was a clear disparity between those respondents who considered using the mechanism to provide a legal remedy and those who considered it as a strategic remedy. The lawyers focused on the former whilst the OHCHR staff and SRVAW focused on the latter. 7.1 Legal remedies Sur place claims Neither KC nor ED mentioned using the SRVAW mechanism to create a sur place claim but once I suggested it they both thought it was a possibility. KC said it would depend on the country but it could be a very good way of using the mechanism with a state where a person would be seen as a troublemaker such as Turkey, Zimbabwe or Iran or where there is civil breakdown like Somalia or Jamaica. She would advise her clients to use this. ED said that if what the Special Rapporteur publishes is going to give rise to risk, she thought you could make a sur place claim although you would still have to establish the risk. Conversely, even though TB s caseworker had submitted grounds using TB s mention in the Special Rapporteur s annual report as a sur place claim, he said that he did not see the mechanism as a remedy in that case as it does not provide a judicial remedy. (All the women in Turkey were effectively making sur place claims when the UNHCR reopened their cases as it was their activities in the country where they were now living that made any return to their country of origin risky. However, the sur place claims were not created by their involvement with the SRVAW.) Country guidance KC thought it might be useful to use the SRVAW mechanism in country guidance cases. In 2003 the then Immigration Appeal Tribunal began issuing guidance cases to lay down authoritatively what is happening in different asylum-seeker producing countries to improve consistency of asylum decision making. 96 KC said there is a real bias in the Asylum and Immigration Tribunal against vulnerable applicants whose status and identity put them at risk, such as lone women in Somalia or single young women in Jamaica. It would be a good process to invoke where the country guidance is manifestly at odds with the risk 96 C. Yeo (ed), Country Guideline cases: benign and practical? (London: Immigration Advisory Service, February 2005), 3. 37

38 to young single unprotected girls. You would use the mechanism to create a fresh claim after the appeal process had been exhausted. However, the Special Rapporteur would need to include an observation in her Annual Report as without this you would not have a fresh claim Other cases KC thought it might be possible to use the SRVAW mechanism in trafficking cases. An intervention in one or two of the cases where the removal of trafficked children is being considered could help tip the balance where the government s policies on trafficking are in conflict with each other as it would invoke other mechanisms to which they are signatories. In that case KC would use the mechanism in parallel with the appeal as an each way bet to have at the end of the process. This could also be used as a sur place claim as the girl s visibility would become problematic. ED thought the mechanism could be used to explain what has gone wrong when a lawyer has failed to represent a woman s case well, by failing to ask her specifically why she was claiming asylum. You could use it to await the results of a complaint to the Office of the Immigration Services Commissioner or the Law Society. However, you would need a new claim too and would then fall back on domestic mechanisms. ED said in order to stop an asylum seeker being removed, you could use a judicial review to argue that the authorities should await any communication the Special Rapporteur had sent to the government but this would only provide a temporary delay unless there was substance to the communication as the authorities could say the Special Rapporteur hasn t added anything Legal remedies in general NK s barrister thought it was appropriate to use the mechanism of the SRVAW for a woman asylum seeker if she was at risk of oppressive measures on return as she was a human rights defender or at risk of gender-specific ill-treatment for another cause, but had only used it for NK as this was the only suitable case he had come across. In contrast, TB s caseworker said he would not consider approaching the Special Rapporteur, as there is sufficient remedy in the UK and you can go through the courts. If a remedy is exhausted you have appeal rights, you can make a fresh claim or use judicial review. The Special Rapporteur does not provide a judicial remedy. The Home Office can say it has considered all the appropriate appeal structures, he has gone through the system, he has been represented by counsel, that is the end of the case (which they did in TB s case, see section 38

39 5.2.2). It s good for embarrassment factor but that s all it is. KC pointed out that if the report only said what the government said, you would not be able to use the report as a basis for a fresh claim. The government could say the Asylum and Immigration Tribunal is independent and it cannot be criticised for what it found. Similarly ED said that you could use the mechanism but the government could respond they had done all they could. The Associate HRO pointed out that the SRVAW does not make a determination in fact or law. In general not so many cases are received from Europe or North America because of the availability of legally binding mechanisms so lawyers opt for legal avenues. 7.2 Strategic remedies Instead of legal remedies, the OHCHR staff and the SRVAW talked about using the mechanism as a strategic remedy. The Associate HRO suggested paradigmatic cases that clearly show a problem in the policy of a country should be picked out. As an example, he mentioned fast track asylum procedures in the Netherlands; women placed in these procedures are often unable to speak about rape within 48 hours as they associate officials with those in their own country and the officials are often men. You could prove that there had been persecution in a woman s country of origin and she had not been able to raise this. The topic of asylum seekers is looked at more on country missions; asylum seekers were discussed during the Special Rapporteur s country mission to the Netherlands. An analogous system, the detained fast track procedure at Yarl s Wood Immigration Removal Centre, has caused similar difficulties for women asylum seekers in the UK. 97 The Associate HRO described the mechanism as a tool to exercise pressure, it won t necessarily change the outcome in a particular case but it can add some additional political clout by raising the case at an international political level before it gets into the court system. He said you should be strategic about using the mechanism and show there is a clear problem in policy and legislation in a particular country. The SRVAW similarly said you cannot use this complex mechanism for every case but it should be used for those situations where there were inconsistencies to bring them to the authorities attention so that more policy changes would follow. You cannot get a remedy for every case but reviewing the cases in the annual report can result in recommendations to the authorities. She would like to use the mechanism to construct more major policy recommendations, and follow these up to make demands on the States and organisations involved. However 97 S. Ceneda and C. Palmer, Lip service or implementation? Home Office Gender Guidance and Women Asylum Seekers (London: Asylum Aid, 2006),

40 lack of resources prevents her from doing as extensive a review as she would wish. 7.3 Discussion These findings demonstrate the divergent expectations amongst respondents. The lawyers look for legal remedies whilst the OHCHR staff and SRVAW see the benefits of the mechanism in strategic, policy and political terms. The only suggestion for using the mechanism in an individual case in a strategic way was KC s suggestion to use it to revisit country guidance. In general, the lawyers responded on the assumption that their role is to argue for an individual remedy for their client and to act in her best interests. In contrast, the OHCHR staff and SRVAW respond in line with the mechanism s purpose as stated in the Manual: The aim of the communications procedure is to ensure a constructive dialogue with Governments in order to promote respect for human rights. 98 KC and ED were currently using the Special Rapporteur on violence against women not through her individual complaints mechanism but through using her reports as country information (see section 5.3 above). The types of cases where they would consider using the SRVAW s individual complaints mechanism were sur place claims, country guidance, trafficking and where there is a complaint about the conduct of the case. The sur place claim seemed to have the most potential. For all the other types of cases, a new claim was required in addition to the intervention of the Special Rapporteur. KC and ED said the SRVAW s involvement would need to add something to the case, for instance by making an observation in her annual report; it had to be more than simply forwarding an allegation to the government. In respect of the cases of women asylum seekers who were successful in using the mechanism and for whom there is sufficient information, it would appear that if they had been in the UK they would all have been able to make a fresh claim. After an asylum claim and appeal have been rejected, submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. 99 In November 2006, the Court of Appeal determined that if new evidence is significantly different, is credible and plausible and/or emanates from a source other than the applicant, the Home Office must consider it as a fresh claim. 100 FA and SP had new evidence due to getting divorced and due to the political activities they had engaged in against the Iranian government, RM due to her changed personal circumstances, and NK due to her planned marriage to someone in the UK. 98 Manual of the United Nations Human Rights Special Procedures, Draft, June 2006, 20, para UK Immigration Rules, para 353, WM (DRC) v SSHD (2006) EWCA Civ 1495, 9 November

41 The fact that women in a similar situation in the UK could submit a fresh claim, suggests that the involvement of the SRVAW for such women would be superfluous. From a legal viewpoint, the mechanism is useful only where there is insufficient judicial provision, as in the case of the women in Turkey where there was no system to enable their cases to be reopened. NK s removal may have been delayed because of the intervention of the SRVAW but it is likely her case would have been reopened without this because of her application to remain in the UK due to a potential marriage. ED said the mechanism could be very useful in countries with more limited systems than the UK. More benefit might be gained in the UK from contributing to the Special Rapporteur s country visits or thematic reports. Her most recent thematic reports covered the topics of the due diligence standard as a tool for eliminating violence against women 101 and the link between violence against women and HIV/AIDS. 102 The reports produced by Special Rapporteurs can create local publicity and help civil society with their national campaigns. The current SRVAW, Yakin Ertürk, is to hold a regional (European) consultation with NGOs (not an official mission) in London from 11 to 13 January 2007 at the invitation of the National Association of Women s Organisations. Topics to be covered include violence in migrant communities and against women migrants, asylum seekers and refugees. The range of issues relating to asylum seeking women that would fall within her mandate are summarised below. 1. Gender guidance The Home Office incorporated gender guidance into its Asylum Policy Instructions in March Entitled Gender issues in the asylum claim, the guidance was intended to redress a disparity in the way women s experiences of persecution were interpreted under the Refugee Convention and to highlight the procedural and evidential barriers that undermine the fairness of decision-making on women s asylum claims. Research published in March 2006 identified that there was very little evidence of this gender guidance being implemented by the Home Office 104 (see section 2.2 above). In addition in September 2006 the 101 Y. Ertürk The due diligence standard as a tool for the elimination of violence against women - Report of the Special Rapporteur on violence against women, its causes and consequences : UN doc. E/CN.4/2006/61, 20 January Y. Ertürk, Intersections of violence against women and HIV/AIDS, Report of the Special Rapporteur on violence against women, its causes and consequences : UN doc. E/CN.4/2005/72, 17 January Asylum Policy Instruction Gender issues in the asylum claim (London: Home Office, March 2004) um.pdf?view=binary 104 S. Ceneda and C. Palmer, Lip service or implementation? Home Office Gender Guidance and Women Asylum Seekers (London: Asylum Aid, 2006) and H. Crawley and T. Lester, Comparative 41

42 Asylum and Immigration Tribunal declared that the Gender Guidelines 105 published by its forerunner, the Immigration Appellate Authority, were not the policy of the AIT. As already noted, within Europe, apart from the UK, only Sweden has its own Gender Guidelines. All member States should produce clear guidance relevant to gender-related persecution based upon the principles and standards in the UNHCR Gender Guidelines Fast track asylum determination procedure The fast track asylum determination procedure was set up to process asylum claims deemed to be straightforward and where a decision could be made quickly. Women who have experienced gender persecution such as rape and domestic violence are having their claims dealt with under this procedure despite the fact that women s claims tend to be more complex and that women who have experienced such violence need time to develop the trust to disclose such persecution. It is very difficult to remove women from the fast track once they have been placed in it Internal flight alternative (relocating to another part of country of origin) If the Home Office recognise that a woman cannot safely return to the area of her country where she came from, they may suggest that she can relocate to another area (internal flight alternative). This is a particular issue for women if they are expected to relocate without family support. In many refugee-producing countries they would then not have access to resources; women living alone can be stigmatised and discriminated against. The Home Office is failing to take such gender issues into account Detention Women asylum seekers are detained routinely either on arrival if their case is put into the fast track procedure referred to above or at the end of the asylum determination procedure if they have been refused asylum and are being considered for removal. Women face long periods of detention, without legal representation or an automatic opportunity to challenge their detention. They (and their children if detained with them) face deteriorating mental and physical analysis of gender-related persecution in national asylum legislation and practice in Europe (Geneva: UNHCR, 2004) 105 N. Berkowitz and C. Jarvis, Asylum gender guidelines (Immigration Appellate Authority, 2000) 106 D. Singer, Gender issues in assessing asylum claims: spreading good practice across the European Union (London: Asylum Aid, 2005) 107 S. Ceneda and C. Palmer, Lip service or implementation? Home Office Gender Guidance and Women Asylum Seekers (London: Asylum Aid, 2006), S. Ceneda and C. Palmer, Lip service or implementation? Home Office Gender Guidance and Women Asylum Seekers (London: Asylum Aid, 2006),

43 health. 109 A majority say they have experienced rape before arriving in the UK and in detention they face brutality, sexual intimidation and racism as well as unsuitable food and inadequate healthcare Forced removal There is evidence that the state itself is using violence against asylum-seeking women. Excessive or gratuitous use of force during an attempt to remove asylum seekers (including women) from the UK after their asylum claim has failed has been documented. 111 Women have been dragged, punched and beaten by security staff working on behalf of the immigration service and their babies have been taken onto the plane before them to entice them aboard in order to remove them Destitution Asylum seekers can become destitute at any stage of the asylum process, although this is most commonly at the end if their claim has been unsuccessful. Destitution is experienced differentially depending on the gender of the asylum seeker. During their research on destitution, Amnesty International was told by people working with rejected asylum seekers that they suspected that some of the women had turned to prostitution to survive, and that young girls were possibly given floor space in exchange for sexual favours. 113 Those women who are forced into sleeping rough are obviously more vulnerable, often attracting unwanted attention, harassment and sexual abuse. 114 Women are particularly vulnerable to destitution following family separation which may be caused by domestic abuse. Additionally, they are less able to access services if they have young children. 115 The first three issues listed above involve the asylum determination process and the last three the circumstances women asylum seekers find themselves in. Raising these topics at the regional consultation with the SRVAW would offer a strategic way to progress these issues. 109 S. Cutler and S. Ceneda, They took me away women s experiences of immigration detention in the UK (London, Asylum Aid, 2004). 110 Legal Action for Women et al, A 'Bleak House' for Our Times - An investigation into women's rights violations at Yarl's Wood Removal Centre (London: Crossroads Women s Centre, 2005). 111 C. Granville Chapman et al, Harm on removal: excessive force against failed asylum seekers (London: Medical Foundation for the care of victims of torture, 2004), S. Cutler and S. Ceneda, They took me away women s experiences of immigration detention in the UK (London, Asylum Aid, 2004), Amnesty International, Down and out in London: the road to destitution for rejected asylum seekers (London: Amnesty International, November 2006), Refugee Action, The destitution trap (London: Refugee Action, 2006), For example, Refugee Survival Trust, What s going on? A study into destitution and poverty faced by asylum seekers and refugees in Scotland, (Edinburgh: Refugee Survival Trust, April 2005),

44 Conclusion In the face of human rights abuses the only universal means of empowerment that women [refugees] can rely on may be the international [human rights] conventions. 116 This research demonstrates a disparity for women seeking asylum in the UK between what the SRVAW could provide in terms of legal remedy and in strategic terms. In relation to women asylum seekers, the mechanism had a positive effect in five of the eight cases of women asylum seekers who used it, but possibly had a detrimental effect in one. Its strong confidentiality rules and lack of follow up involving the government and/or the source limit its effectiveness. The draft Manual of the UN Human Rights Special Procedures 117 provides the potential for making improvements in relation to these themes and suggestions are offered for such improvements. The positive effect of the mechanism was clearest for women asylum seekers in countries with a less developed judicial system than the UK. The only clear case of where the SRVAW s mechanism could be useful in the UK is in creating a sur place claim in a situation where mention of a woman in the SRVAW s annual report would put her at risk if she were to return to her country of origin. In other cases in the UK it appeared that the involvement of the SRVAW might only provide a delay in proceedings. Even if the SRVAW were to include more specific information or observations in her annual reports, it is unlikely that this would provide new evidence. If there were new evidence, it would have been available to the woman and her legal representative and they could have submitted a fresh claim. Even with improvements to its workings, the SRVAW s mechanism will have limited use in providing a legal remedy for women asylum seekers in determining their asylum claims in the UK because the UK has an extensive judicial process which allows fresh claims to be considered. The SRVAW and Special Procedures branch staff should encourage the use of the SRVAW mechanism for women asylum seekers in countries where the judicial process is less extensive. In terms of a political or strategic remedy for women asylum seekers in the UK, the benefit of the SRVAW s annual reports is limited both by the low number of cases referred to her and also by the lack of detailed observations or analysis provided. A very small catalogue of cases of women asylum seekers, with only 116 W. Giles, Aid recipients or citizens? in W. Giles et al (eds), Development and diaspora: gender and the refugee experience (Toronto: Artemis Enterprises, 1996), Manual of the United Nations Human Rights Special Procedures, Draft, June

45 one from the UK, cannot reveal any trends that could be used politically or strategically. An analysis of trends could be built on if more cases were communicated to the SRVAW or if a case was used strategically to raise awareness of a particular issue. However, with the mechanism unable to offer a definite legal remedy, women s legal representatives are unlikely to be motivated to approach the SRVAW about their clients. The SRVAW s reports are clearly useful in providing country research to support women s asylum claims. Legal representatives should be encouraged to consider information from the SRVAW s reports when preparing cases. The SRVAW could also produce her annual thematic report on the topic of women asylum seekers and refugees; NGOs could lobby for this. They can take local stories and frame them in national and international human rights language. 118 The regional consultation in London in January 2007 also offers a strategic opportunity to progress the issues which women asylum seekers face. This research has suggested some topics that should be raised at this forum. In conclusion, even if the mechanism were improved along the lines proposed above, this research suggests that the individual complaints mechanism of the Special Rapporteur on violence against women has little to add to the asylum determination process for women asylum seekers in the UK. However, her thematic reports and country/regional visits could be used strategically to progress the policy issues their situation raises. Human rights documents such as the SRVAW s create legal norms for controlling violence against women. Their dissemination depends on NGOs seizing this language and using it to generate public support or governmental discomfort. 119 This is the challenge now open to women seeking asylum in the UK and those who work on their behalf. 118 S. Merry, Human rights and gender violence: translating international law into local justice (Chicago: University of Chicago Press, 2006), S. Merry, Human rights and gender violence: translating international law into local justice (Chicago: University of Chicago Press, 2006),

46 Recommendations The following recommendations are drawn from this report. Recommendations to the OHCHR and SRVAW OHCHR staff should improve record keeping, particularly to maintain information on sources consistently OHCHR staff should analyse sources and extend outreach particularly targeting women s NGOs The OHCHR staff should explain the process (and its limitations) more clearly to sources/potential sources alerting them to the Special Rapporteur s next annual report and the timing of this The OHCHR staff should keep sources informed of what action they have taken in relation to their case, relay the substance of government responses to sources and obtain their comments to initiate a dialogue with governments OHCHR staff should ensure consistency in annual reports in referring to all communications and all responses by governments The Special Rapporteur should include more detailed observations in her annual reports, giving a more explicitly stated position on each communication The Special Rapporteur should include an analysis of major trends in her annual reports The reporting cycle for the Special Rapporteurs communications to and from governments should match the meeting cycle of the new Human Rights Council OHCHR staff should evaluate the impact of communications Good news stories (cases with a successful outcome due to the intervention of a Special Rapporteur) should be made public 46

47 The SRVAW and Special Procedures branch staff should encourage the use of the SRVAW mechanism for women asylum seekers in countries with a less extensive judicial process than the UK Recommendations to legal representatives Legal representatives should be encouraged to consider information from the SRVAW s reports when preparing women asylum seekers cases. Recommendations to NGOs NGOs should lobby for the SRVAW to produce her annual thematic report on the topic of women asylum seekers and refugees NGOs should raise issues relating to women asylum seekers with the SRVAW during her European Consultation in January 2007 including the following topics: gender guidance, fast track asylum determination procedure, internal flight alternative, detention, forced removal and destitution. 47

48 Annex 1 Mandate of the UN Special Rapporteur on violence against women In resolution 1994/45 adopted on 4 March 1994, the United Nations Commission on Human Rights decided to appoint a Special Rapporteur on violence against women, its causes and consequences. As part of her mandate the Special Rapporteur on violence against women is requested to: (a) Seek and receive information on violence against women, its causes and consequences from Governments, treaty bodies, specialized agencies, other special rapporteurs responsible for various human rights questions and intergovernmental and non-governmental organizations, including women's organizations, and to respond effectively to such information; (b) Recommend measures, ways and means, at the national, regional and international levels, to eliminate violence against women and its causes, and to remedy its consequences; (c) Work closely with other special rapporteurs, special representatives, working groups and independent experts of the Commission on Human Rights and the Sub-Commission on Prevention of Discrimination and Protection of Minorities and with the treaty bodies, taking into account the Commission's request that they regularly and systematically include in their reports available information on human rights violations affecting women, and cooperate closely with the Commission on the Status of Women in the discharge of its functions UN High Commissioner for Human Rights: Question of integrating the rights of women into the human rights mechanisms of the United Nations and the elimination of violence against women 1994/45, 56 th meeting, 4 March 1994: UN doc. E/CN.4/1994/132, chap X1, para 7 (a) (c). 48

49 Annex 2 Extract from SRVAW annual report - cases of Iranian women in Turkey 121 Urgent appeal 461. On 17 March 2004, the Special Rapporteur sent a joint urgent appeal with the Special Rapporteur on freedom of opinion and expression, the Special Rapporteur on torture and the Special Representative of the Secretary-General on the situation of human rights defenders regarding three Iranian nationals; F.A., N.M.H.Z. and S.P., who have been seeking asylum in Ankara. According to information received, they are due to be deported to the Islamic Republic of Iran with their children in four days. All three women are said to be women s rights activists, and members of the International Federation of Iranian Refugees (IFIR)-Turkey. While in Turkey, it is reported that they participated in public conferences and meetings in the defence of women's rights in Iran, expressing criticism against the Iranian regime and calling for strikes against the Iranian Government. Concern is expressed that their rights to life and security may be at risk if they are returned. Government replies 462. By letters dated 29 March and 20 April 2004, the Government reported that the request for asylum of the above-mentioned persons was refused by the UNHCR Office in Ankara, but a reassessment of S.P. s application was granted. All have applied for permission to stay in Turkey with ordinary alien status, and this is being considered by the Ministry of the Interior. Urgent appeal 463. On 31 August 2004, the Special Rapporteur sent an urgent appeal on behalf of R.M., a 20-year-old Iranian woman According to information received; in 1999 R.M. who was 14 years old at the time, went to Turkey with her family to seek asylum. Their application for refugee status was rejected by UNHCR. The family moved to the city of Burdur where R.M. married an Iranian asylum-seeker in the year It is reported that because her husband regularly abused her and forced her into having sexual relations with some of his male friends, she divorced him. In order to survive, she 121 Y. Erturk, Integration of the human rights of women and the gender perspective: violence against women, report of the Special Rapporteur on violence against women, its causes and consequences, Communications to and from governments: UN doc. E/CN.4/2005/72/Add.1, 18 March 2005,

50 then started engaging in prostitution. R.M. was said to be six-months pregnant. In view of her situation, fears were expressed for her life as well as for her physical and mental integrity if she was returned to Iran. 50

51 Annex 3 Cases of women asylum seekers reported by the Special Rapporteur on violence against women 122 Date of annual report Name Country of origin Country of destinati on Situation leading to asylum claim JW Thailand Canada Trafficked for prostitution AI Pakistan Canada Mother murdered by father for not conforming to traditional practices, confined and tortured by brother, threatened with death if protested No cases Human rights concern Lengthy detention affecting emotional and physical health Risk to life as honour killings not punished Situation when Special Rapporteur approached Detained on prostitution and immigration charges, status as trafficked woman not taken into account when decided to detain following breach of bail conditions Risk of deportation Government response to Special Rapporteur Refused refugee status, she did not exercise her right to judicial review of this decision. Application for refugee status still being considered, no decision to deport. Action by government Deported Recognised as Convention refugee 122 Source: Annual reports of communications between the Special Rapporteur on Violence Against Women and governments, except where referenced. 51

52 Date of annual report 2003 Name Country of origin Country of destinati on Situation leading to asylum claim MAG Iran Sweden Family rejected as divorced, threatened with death for living with a man; lack of state protection, no money for medical treatment. Human rights concern Risk of torture and other mistreatme nt including honour killing; particularly vulnerable due to illhealth Situation when Special Rapporteur approached Asylum refused, reapplied as new circumstances ie inoperable brain tumour, refused again; attempt to deport failed, second deportation planned. Has filed case with ECHR. Government response to Special Rapporteur Minister cannot interfere in cases but forwarded Special Rapporteur s letter to independent Immigration authorities; she has applied again to Aliens Appeals Board. Action by government Aliens Appeals Board stayed deportation until they make decision No cases FA Iran Turkey Women s Right to life rights and activists, security at whilst in risk Turkey criticised Iranian regime NMHZ Iran Turkey As above Right to life and security at risk Due to be deported to Iran in four days Due to be deported to Iran in four days Asylum request refused by UNHCR Asylum request refused by UNHCR Granted refugee status and resettled 123 Application for ordinary alien status being considered 123 Interview with SRVAW, 22 August

53 Date of annual report 2006 Name Country of origin Country of destinati on Situation leading to asylum claim Human rights concern SP Iran Turkey As above Right to life and security at risk RM Iran Turkey Family refused asylum in 1999 when she was 14 NK Nepal UK Detention and torture including sexual mistreatme nt by police due to her and family s Maoist activities No cases Fears for life, physical and mental integrity Risk of gender specific violence Situation when Special Rapporteur approached Due to be deported to Iran in four days Married Iranian asylum seeker in 2001, abused by husband, divorced, prostitution, pregnant Detained at Heathrow airport awaiting deportation Government response to Special Rapporteur Granted reassessment of asylum application Decision to detain not arbitrary. Has exercised all rights to fair proceedings. Action by government Granted refugee status and resettled 124 Durable solution found 125 Cancelled deportation arrangements following representations to OHCHR and submission of a further application to remain in the UK. 124 Interview with SRVAW, 22 August from UNHCR in Ankara to Debora Singer, 14 July

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62 Refugee Women s Resource Project at ASYLUM AID 28 Commercial Street London E1 6LS Registered charity no.: info@asylumaid.org.uk Asylum Aid Excerpts from this report may be copied as long as its authorship is acknowledged. Women asylum seekers and the Special Rapporteur on violence against women