Lip service or implementation?

Transcription

1 Refugee Women s Resource Project Lip service or implementation? The Home Office Gender Guidance and women s asylum claims in the UK Sophia Ceneda Clare Palmer published by asylum aid, march 2006

2

3 There is a big difference between policy and actual practice. What does the Home Office say about these guidelines that they ve got on their website? Are they just doing it to placate people or keeping them quiet by saying we ve got something about women? Barrister, interviewed on 10 October Gender obviously isn t an issue as far as [the Home Office] is concerned. And it s something they might get round to belatedly incorporating, but it s not something that s at the heart of decision-making at all. It s just not a priority. Legal caseworker, interviewed on 29 September The reality of the situation is women don t leave their homes and travel halfway across the world, possibly dragging children, to total insecurity, when they often come from patriarchal societies and they ve not really been out there on their own... unless they have no choice, but that is not recognised in decision-making....i think that s really the problem. Barrister, interviewed on 7 October

4 4

5 acknowledgements This research was designed by Sophia Ceneda, and undertaken and written by Sophia Ceneda and Clare Palmer from Asylum Aid s Refugee Women s Resource Project (RWRP). We gratefully acknowledge the support and assistance of Mary Salinsky and Debora Singer (RWRP) for their editorial comments and proofreading. We are also very thankful to Mel Steel (RWRP) for her contribution. However, this research would not have been possible without the invaluable participation of the people who agreed to be interviewed and provide us with their professional and personal insight on the use of Home Office Gender Guidance in the asylum determination process. We cannot thank them enough for allowing us to reproduce their comments in this report (note that all the views, collected anonymously, are that of individuals only). We would like in particular to thank Joanna Thomas, Paul Morris, Nadia Siddiqi and Samar Tasselli, all from South Manchester Law Centre; Ana Gonzales, Anna Rothwell and Elena Rosa Brunet, all from Wilsons & Co; Shirin Sethna, TRP Solicitors; Colin Yeo, IAS; Melissa Canavan, Tooks Chambers; Raggi Kotak; Rebecca Wallace; Claudia Hasanbegovic, formerly from Latin American Women s Rights Service; Jane Lanyero from African Women s Care; Anna Johansson from the Poppy Project. Many thanks also to UNHCR. In addition, we are extremely indebted to Robin Edwards, Home Office, for his assistance in this project. We apologise for any inadvertent omissions from the above list and intend no offence to any contributor who has been left out. We wish to thank the Joseph Rowntree Charitable Trust for providing the financial support that enabled the production of this report. RWRP is funded by the following trusts and charities: Association of London Government, Baring Foundation, Barrow Cadbury Trust, Bromley Trust, Comic Relief, Community Fund, Joseph Rowntree Charitable Trust, Lloyds TSB Foundation, Sigrid Rausing Trust. RWRP s work is also funded by Matrix Chambers. In addition, RWRP and Asylum Aid are funded by small grants from a range of small trusts, together with subscriptions and donations from members, friends and supporters. We apologise for not mentioning all funders and supporters individually and gratefully acknowledge the support of them all. Asylum Aid Excerpts from this report may be copied as long as its authorship is acknowledged. The report is available online at 5

6 6

7 table of contents page number Glossary of terms and acronyms 9 Executive Summary 11 Introduction 17 Background to the research 17 Research aims and objectives 20 Research design and methodology 21 Structure of the report 23 Section one: Knowledge of Gender Guidance and comments Knowledge of Gender Guidance Comments on Gender Guidance content and quality Suggestions on how to improve the Gender Guidance 32 Section two: Understanding of gender issues in the Refugee Convention Overview Gender-specific persecution Gender-related persecution and the Convention Grounds Gender and Internal Flight General bias against women s claims Suggestions on how to improve gender awareness amongst HO caseworkers Home Office actual provision on gender training 50 Section three : Knowledge of women s experiences and status in countries of origin 57 Section four: Quality of country of origin reports Summary of views Suggestions to improve content of country of origin information APCI discussion on country of origin information and gender 66 7

8 Section five: Interviewing Availability of gender-appropriate interviewers and interpreters The impact of lack of provision of gender-appropriate interviewers and interpreters on disclosure Conduct of interviews Impact of conduct of interviews on assessment of credibility of claimants Lack of investigation of women dependant cases Examples of good practice in interviewing Suggestions for improving interviewing 78 Section six: Gender and credibility issues Overview Credibility, late disclosure and/or inconsistencies due to trauma 87 Section seven: Home Office culture and gender issues 93 Section eight: Women in the fast-track Overview of the fast-track system Fast-track and women s claims Problems for women in the fast-track Home Office Response 101 Section nine: Quality of decision-making 103 Section ten: Management failures Overview of problems identified Recommendations concerning management issues 109 Section eleven: Additional issues unrelated to Home Office Practice 113 Conclusion 117 Recommendations 119 Appendix one: Questionnaires and response from the Home Office 125 Appendix two: List of references and online resources 133 8

9 Glossary of terms and acronyms APCI Advisory Panel on Country Information: independent panel which reviews Home Office country reports. API Asylum Policy Instruction: internal guidance for asylum caseworkers. CIPU Country Information and Policy Unit at the Home Office: now divided into the Country of Origin Service and the Country Specific Asylum Policy Team of the Home Office Asylum and Appeals Policy Directorate. CIPU reports Country reports produced by the Country Information and Policy Unit, covering the human rights situation in the main countries of origin of asylum seekers coming to the UK and including reference to specific groups ECHR European Convention on Human Rights. Fast-track system Accelerated system for the determination of asylum claims which are deemed to be straightforward after initial screening. The fast track process operates at Oakington Immigration Removal Centre, and the super fast track at Harmondsworth and Yarl s Wood (women only). Fresh application This simply means a new application: if someone applied for asylum and was refused, they may seek to make a fresh (or new) application. Usually, if this did not raise anything that was both new and could not have been raised previously, the Home Office would refuse to consider a fresh application. Gender-related persecution Harm suffered by women because of their gender and status as women within specific social and political contexts: e.g. domestic violence, punishment for transgressing social or sexual norms such as dress codes, honour killings. Gender-specific persecution Harm suffered only or mainly by women such as rape, sexual violence, sexual humiliation, forced prostitution, trafficking, forced sterilisation, forced marriage, dowry dea h t or bride burning, honour killing, female genital mutilation, domestic violence and social and legal discrimination. HOPO Home Office Presenting Officer: presents the Home Office s case at asylum and human rights appeals. Human Rights Act (1998) effective from 2000: UK legislation enacting the European Convention on Human Rights (full title: 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms). IAA Immigration Appellate Authority: former body hearing asylum and human rights appeals; now replaced by the Asylum and Immigration Tribunal (AIT). 9

10 IFA Internal Flight Alternative: argument that an asylum seeker would be safe in a different part of the country from the one where he/she fears persecution, and therefore international protection is not necessary. IND Immigration and Nationality Directorate (at the Home Office). Initial decision stage First stage at which the Home Office decides on an asylum claim application. Late disclosure Giving information on some aspect of one s claim for asylum at some point after the initial application form or interview. MPSG Membership of a particular social group: one of the five grounds on which a person can claim asylum under the terms of the 1951 Refugee Convention. NGO Non- Governmental Organisation. NSA Non-Suspensive Appeal: refusals in asylum cases which are subject to this categorisation do not have a right to appeal within the UK ( in-country ). Persecution A term used in the Refugee Convention, usually interpreted to mean serious harm plus a failure of state protection. Refugee Convention The 1951 United Nations Convention relating to the Status of Refugees and the 1967 Protocol thereto: the convention to which the UK is a signatory and under which asylum claims are considered. Serious harm A term used in the Refugee Convention, usually interpreted to mean a threat to life and limb or infringement of key human rights entitlements. UNHCR United Nations High Commissioner for Refugees. Yarl s Wood Immigration Removal Centre (IRC), Bedfordshire, one of 10 IRCs or detention centres in the UK, the only one which houses women only. 10

11 Executive summary The Home Office incorporated Gender Guidance into its Asylum Policy Instructions for its caseworkers in This welcome development came after extensive lobbying by non-governmental organizations (NGOs) and others, including RWRP, who were concerned that procedural and evidential barriers meant that women s asylum claims were not fairly determined. RWRP was keen to establish whether the Gender Guidance was being implemented and, if not, to suggest ways of improving implementation in the interests of refugee women claimants. This research set out to obtain the views of professionals working in the field of asylum determination as to the quality of the Guidance, along with any examples from their professional experience of good or poor practice on the part of the Home Office in decision-making on women s claims, and to make any recommendations on how to improve implementation of the Guidance if necessary. A review was also undertaken of cases involving gender issues from Asylum Aid s caseload, where decisions were made since the Guidance was issued, to assess whether gender issues in the cases were dealt with according to the Guidance. Some examples were used as case studies to amplify the evidence of professionals on various issues. A few examples of good practice were identified but the overwhelming impression was one of a lack of awareness of gender issues and of the Guidance not being followed by decision-makers. In the view of respondents, there was generally a poor understanding by decisionmakers of the Refugee Convention, particularly in relation to women s experiences. There was also a lack of knowledge of women s situation and status in countries of origin, which was exacerbated by the generally poor quality of country information provided to decision-makers on women s issues. Many problems were identified with interviewing procedures including lack of provision of female interviewers and interpreters. This had a serious impact on the ability of women to tell their stories in full, especially when they had experienced sexual violence. Respondents identified a culture of disbelief at the Home Office, which, when combined with ignorance or bias against women, had a particularly severe impact on fair decision-making. The effects of trauma on recounting events were often not taken into account and in fact was occasionally used against claimants. 11

12 Many women s claims in the fast-track system were dealt with inappropriately, as it is not designed for complex claims. There was not sufficient time therefore to investigate their claims in-depth. Respondents also described general problems with poor-quality decision-making and recommended changes in management and training of caseworkers. In general many examples were mentioned where the Guidance was clearly not followed, and this was backed up by evidence from Asylum Aid s own recent cases. The Home Office has recently agreed to various changes in its decision-making procedures, mainly in response to consultations with UNHCR. These are welcome but the evidence we have collected suggests that wider and deeper changes are needed. This study therefore goes on to suggest additional actions to be considered by the Home Office in order to facilitate fairer treatment of women s asylum claims in the UK, and ensure that the UK Government meets its obligations regarding the protection needs of women fleeing persecution. RWRP Recommendations 1. Use and content of Gender Guidance The Home Office should ensure that the use of Gender Guidance by caseworkers is compulsory for all women s or gender-related cases its use should be checked as part of existing practice of sampling and checking a proportion of decisions by a senior caseworker. The Home Office should improve the content of the current Gender Guidance to the standard of the IAA/RWLG/UNHCR gender guidelines. UNHCR and RWLG should be consulted on this revision. The Home Office should mainstream gender issues throughout all APIs as well as having separate Gender Guidance, and in doing this consult with agencies such as UNHCR and NGOs to ensure quality. The Home Office should ensure that it is implementing its Guidance adequately in the UK in order to strengthen the credibility of its promotion of Gender Guidance to European Union member states. 1 1 Gender issues in assessing asylum claims: spreading good practice across the European Union: Briefing by RWRP at Asylum Aid tabled by the UK Government at the Intergovernmental Committee Asylum Working Group meeting in Geneva on 15/16 November 2005, available at 12

13 2. Training and education of decision-makers Initial training The Home Office should extend further the length of its initial training period, as recommended by the National Audit Office, to accommodate in-depth comprehensive training on the understanding of gender issues in asylum claims, in addition to training in refugee and human rights law and country information provided by external experts. Initial training should include discussion of the impact of the negative portrayal of asylum seekers by politicians and the media which can affect caseworkers views; NGOs working with asylum seekers and refugees should be invited to speak. Interviewing skills training should include how to interview people who have suffered torture and trauma, including women survivors of sexual violence, to enhance disclosure. Ongoing training and assessment The Home Office should introduce a system of annual assessment of caseworkers knowledge and awareness of the Refugee Convention and its application, including gender dimensions. Home Office caseworkers should be regularly updated on UK case law as well as on asylum case law in other countries. The Home Office should hold annual workshops with expert speakers on issues affecting many women asylum seekers including domestic violence, FGM, trafficking, and other forms of harm. The programme should be developed in consultation with relevant women s groups and NGOs and attendance should be compulsory. The Home Office should regularly invite external speakers to speak specifically on women s issues and on human rights issues in countries of origin: at least, experts from each of top 20 refugee-producing countries every year on a rolling programme; attendance by caseworkers and senior caseworkers should be compulsory. Accreditation of caseworkers Gender awareness and an understanding of the Gender Guidance should be an essential element of any future accreditation system introduced for Home Office asylum caseworkers. 3. Country of Origin Information As the Home Office Gender Guidance regularly refers to Country Information Policy Unit (CIPU) or Country of Origin Information (COI) reports, the Home Office should ensure that these reports include thorough information on women s rights and position in society, as described in the UNHCR guidelines. This information should be mainstreamed throughout reports e.g. in all sections such as freedom of expression, freedom of movement, detention etc, as well as an additional section for women s issues not otherwise covered. 4. Procedural issues 13

14 General All women arriving as dependents should be informed that they have a right to make a separate claim and to be interviewed separately. Women should always be interviewed without family members / friends present. Interviews should be automatically postponed if no childcare provision can be found. All out-going decisions should be subjected to independent scrutiny to ensure gender issues have been appropriately dealt with. Fast-track Women should be screened adequately by gender-trained caseworkers so that those who have suffered gender-specific or gender-related persecution are not put into the fast-track. According to current guidance those deemed unsuitable for fast-track include any case which does not appear to be one in which a quick decision can be made. This guidance should be expanded to include a non-exhaustive list of types of women s cases which should be excluded. The Home Office should review women s suitability for the fast-track systematically (on a weekly basis or more often if problems arise) so that if issues come up they can be swiftly removed from the system. 5. Wider policy issues A member of the Senior Management Team in the Immigration and Nationality Directorate should take responsibility and be accountable for gender issues in relation to asylum claims. The Home Office Policy Adviser with responsibility for gender issues should have no additional responsibilities (the current post holder is responsible for data protection and freedom of information as well as gender). When deciding to adopt new procedures for processing asylum applications, an assessment should be made by the Home Office as to how this will impact on the implementation of the Gender Guidance. 14

15 Recommendations to other parties To the Legal Services Commission (LSC), the Office of the Immigration Services Commissioner (OISC), and Government: The Legal Services Commission (LSC) and the Office of the Immigration Services Commissioner (OISC) should make greater efforts to publicise the Gender Guidance to their stakeholders, for example through their websites and newsletters. 2 Both LSC and OISC accreditation/regulation requirements should include an understanding of gender issues and an awareness of the Gender Guidance. The OISC should offer training on gender issues to all levels of regulated advisers. The LSC should ensure that gender issues are taken fully into account in respect of all its immigration functions, including funding and auditing. Training for Immigration Judges should include understanding of the IAA Asylum Gender Guidance. The Government should bring forward legislation guaranteeing all asylum applicants and appellants access to quality assured specialist legal advice and representation. RWRP reiterates its recommendation that consideration be given to the setting up of an independent documentation centre for country specific reports with special sections on women. Such a centre should be accessible to all involved in the asylum process and be able to respond to specific research requests on gender issues by decision-makers (as is the case in Canada) and legal representatives. 2 See for example Immigration Services Team Newsletter, Legal Services Commission, 20 June

16 16

17 Introduction Background to the research a. Home Office Gender Guidance At the beginning of March 2004, the Home Office issued new guidance to its caseworkers in the form of an Asylum Policy Instruction (API) 3 entitled gender 4 issues in the asylum claim. 5 This followed nearly six years of campaigning and lobbying by the Refugee Women s Legal Group (RWLG), 6 which published its own Gender Guidelines for the Determination of Asylum Claims in the UK in July Gender guidelines were deemed necessary to redress a disparity in the way women s experiences of persecution are interpreted under the Refugee Convention; and to highlight procedural and evidential barriers that undermined the fairness of decision-making on women s claims. In the context of its strategy to increase awareness of the gendered experiences of women fleeing persecution in the UK, RWLG was subsequently closely involved in consultation with the Home Office leading to the publication of the API on gender issues. In its introduction, the API on gender issues reads: This instruction gives guidance on: the additional considerations caseworkers should have in mind when assessing claims for asylum tha t could include gender related issues; and how to take gender issues into account when looking at the persecut ion experienced and whethe r there has been a failure of state pro ection. t 8 It also stresses that the instructions are not to be read in isolation but in conjunction with the API on Assessing the Claim and it advises that further information can be obtained from the Asylum Gender Guidelines issued by the Immigration Appellate Authority (IAA). 9 3 Asylum Policy Instructions (APIs) are guidelines issued by the Home Office to help its own staff make decisions. Their use is not compulsory. A full list of the APIs can be found at: policy/policy_instructions/apis.html. 4 Gender is defined as the relationship between women and men based on socially o r culturally constructed and defined identities, status, roles and responsibilities that are assigned to one sex or another. 5 In this report the Home Office s guidance on gender issues in the API is subsequently referred to as Gender Guidance or Guidance. The full document can be found online at: policy/policy_instructions/apis/gender_issues_in_the.html. 6 RWLG was established at the beginning of 1996 by individuals and organisations concerned about the impact of changes in immigration law on women seeking asylum in the UK. RWRP has been a member since RWLG s Gender Guidelines can be found online at 8 Home Office Gender Guidance, op. cit., Section 1, Introduction. 9 The Home Office Gender Guidance is largely drawn from the IAA gender guidelines. 17

18 Before setting out to explain a number of issues to take into account, including the definition of gender, gender and persecution, internal flight, gender-related persecution on Convention grounds, credibility, and so on, the instruction reads: Although gender is not one of the grounds for establishing refugee status under the 1951 Convention decision makers should be aware of gender issues in their assessment of the Convention Reason. Persecution in the conventional sense does not always correspond with the experiences of women and caseworkers should be aware of this in coming to their decision. Despite the delay in introducing the Gender Guidance (six years after RWLG s and three years after the IAA s own gender guidelines), the introduction of the Gender Guidance in the APIs in March 2004 was a very welcome development. 10 b. RWRP s past research on gender and asylum In the context of its own research on the way women asylum claims were assessed by the Home Office in the UK, RWRP conducted a survey in 2002/3 amongst practitioners in which they were asked how effective they thought the then forthcoming Home Office gender guidelines would be. 11 A majority of legal representatives thought that such guidelines would improve the quality of determination of women s claims for asylum at the initial decision stage (as well as at appeal or tribunal level). 12 However it was clear from additional comments made that respondents thought the improvement envisaged may not occur for the right reasons as they thought that official gender guidelines would be mostly useful to challenge the Home Office for not actually using them. 13 Reservations about the actual effectiveness of official gender guidelines were even clearer when it was found that a large majority of legal representatives consulted also agreed that substantial obstacles would remain unless additional measures were taken by the Home Office: nine in ten respondents thought that a lack of awareness amongst Home Office immigration officers and decision-makers on gender issues would be an obstacle to the application of Home Office gender guidelines. Nearly two thirds thought that there was an inadequate review process for asylum determinations. Over half thought that policy interference would be another obstacle and the same proportion thought that the lack of an independent documentation centre on country information would also constitute a barrier to their implementation. 14 Crucially practitioners did not trust that the publication of official 10 See RWRP, Women s Asylum News, Issue no. 41, March As a member of RWLG, RWRP contributed to the consultation on the Home Office gender guidelines. 12 Ceneda, S., Women asylum seekers in the UK: A gender perspective. Some facts and figures, RWRP: London, February See in particular pp Ibid., p Another obstacle mentioned was that the use of gender guidelines might be perceived as discriminatory by male decision-makers at the Home Office. One person commented: The perception that they have confused gender issues with women's issues leads to resistance by male decision makers. They do not help to focus attention on the problems involved with dealing with male victims of sexual violence for instance. This is used as an objection to the guidelines by people claiming they don't want to discriminate. How sincere that is is hard to tell, but there is some validity in the criticism. (C4). Ibid. 18

19 guidelines would be sufficient to change the culture of disbelief at the Home Office, with implications in terms of high quality decision-making. 15 Training was thought to be necessary for the gender guidelines to be effective and indeed RWRP recommended at the time that a comprehensive gender training programme for all Home Office staff involved in the asylum process should be adopted along with gender guidelines; and that training needs should be reviewed on a regular basis. Lastly, three years ago it was already thought that there was a need to measure what effect, if any, [Home Office gender guidelines] will have. This is the specific aim of this research undertaken by RWRP and completed two years after the Gender Guidance was issued for Home Office decision-makers at the initial level. c. Broader context This research was undertaken in the context of governmental asylum policies becoming increasingly restrictive: with the introduction of radical policies of detention and deportation, many asylum seekers are being turned down and deported to countries from which they fled life-threatening abuses or the likelihood of future abuse. The tragedies of their journey from fleeing persecution to UK detention centres are now exposed on a daily basis in the media with stories of individuals escaping deportation at the eleventh hour. However, for all the valid criticism surrounding the regime of detention facilities, 16 the introduction of fast-track systems, the restriction of welfare rights granted to asylum seekers, the restrictions surrounding the appeal system and the legal aid cuts, it is the quality of initial decision-making which is at the core of the crisis surrounding the asylum system in the UK. Asylum Aid has long underlined the shortcomings of initial decision-making through our years of experience representing asylum seekers both at initial and appeal stages, some of which have been illustrated in our publications. 17 More recently, a number of studies carried out by other organisations and institutions have supported these concerns. Not least were the reviews carried out by the Advisory Panel on Country Information (APCI) which started working on a review of Home Office Country Information Policy Unit reports in October 2003; Amnesty International, which published Get it Right - How Home Office decision making fails refugees (February 2004); the National Audit Office (NAO), which looked at the speed and quality of initial decisions (June 2004); 18 the Medical Foundation for the Care of Victims of Torture, which also examined decisions at initial level; 19 and now the UNCHR which started its Quality Initiative Project in March 2004, which is still on-going 15 Ibid., p See for instance Ceneda, S., Cutler, S. They took me away, Women s experiences o f immigration detention in the UK, Asylum Aid: London, August 2004, at 17 See list of references, appendix two. 18 NAO, Improving the Speed and Quality of Asylum Decisions, NAO: London, 23 June 2004 at 19 Smith, E., Right First Time?, Medical Foundation for the Care of Victims of Torture: London,

20 to date, with the aim of working with the Home Office on improving the quality of first instance decision-making to ensure due process and fairness in asylum procedures. 20 In the context of all the above, RWRP was concerned at the start of the research that the Home Office s Gender Guidance had had little impact so far on the quality of decisions on gender-related issues. The research was, however, designed to identify examples of both good and bad practice. Aims and objectives of the research The overall aim of this research is to support RWRP s continuing work towards the promotion and development of a fair and objective asylum system for women asylum seekers in the UK. The specific aim of this research was to find evidence of good or poor practice by the Home Office in terms of the application of the Gender Guidance in the determination of women s asylum claims or claims with gender issues at stake; also, based on this evidence, to conclude on whether or not the Gender Guidance is being implemented effectively and best serves the needs for protection of women asylum seekers in the UK, as defined under the 1951 UN Convention; and if not, to identify measures to be taken to address any shortcomings. The initial objectives of the research were: 1. To identify a number of asylum claims represented by Asylum Aid with genderrelated persecution issues submitted to the Home Office during the period April 2004 onwards, i.e. after Home Office caseworkers were issued with the Gender Guidance in March To review relevant issues in these cases using the Home Office Gender Guidance as a framework of analysis. 3. To examine the procedural problems women asylum seekers faced in the process of determination of their asylum claims, based on caseworkers file notes. 4. Based on the information collected, to highlight examples of any lack of application of the Gender Guidance. The research looked at the reasons provided to refuse applicants refugee status, based on the information provided in Home Office refusal letters. 5. To conduct a survey amongst legal practitioners following up on the survey conducted by RWRP in 2002/ on how effective they think the current Gender Guidance is. 20 The UNHCR s project is based on a sampling system and includes reviewing decisions by caseworkers (438 to date, selected on a random basis), monitoring interviews and related procedures, including the role of interpreters, and training and recruitment practices, on the basis of which advice and recommendations will be formulated. For more on the UNHCR Quality Initiative Project, see online: 20

21 6. To conduct a number of interviews amongst professionals working in the field of asylum determination to the same effect. 7. Drawing on the results of the research, in relation to the application of the Gender Guidance, another objective is to identify the issues that need to be taken forward as campaign issues to promote a fair and objective asylum determination system for women asylum seekers in the UK (and by extension for any cases where a genderrelated persecution issue arises). 8. To produce recommendations accordingly if necessary. Some of the objectives above were not met for a number of practical reasons independent of the research. The final design of the research was subsequently narrowed down as described below. Research design and methodology The research was based on semi-structured interviews conducted with professionals in the field of asylum determination, 21 and documentary analysis based on Asylum Aid s case files and Home Office Reasons for Refusal Letters. When relevant, the research s findings were complemented with observations from other sources, which had been published within the past two years. 21 See a copy of the questionnaire, appendix one. 21

22 a. interviews Respondents were selected both randomly by identifying key actors in the field of asylum (and sometimes gender and asylum) and using chain sampling (i.e. asking respondents if they could advise us on someone else in the field to interview). In one case, a professional happened to be present at a scheduled interview and was very keen to be interviewed too. In total 17 people agreed to take part in our study, most of them anonymously. For practical reasons, three people sent us written responses to our questionnaire rather than being interviewed face-to-face. Respondents included people with first hand experience of the asylum determination process, such as legal representatives, solicitors, barristers and an immigration judge (13 in total); three representatives of women s rights organisations or organisations dealing exclusively with women who had experienced gender-related abuse; and a researcher for a law practice who had past experience of casework. All had worked in the asylum field or a closely related field for several years, and most from five to over 20 years. A questionnaire survey was also circulated to over 70 practitioners in the UK 22 but due to a very low response rate (only 4 surveys were returned), it was decided not to use the information received. b. Documentary analysis In terms of documentary analysis of Asylum Aid s case files, the methodology used was non-random sampling based on the following criteria (all to apply): Cases with gender-related and/or gender-specific persecution issues (female cases were selected from the database directly but female cases without any gender-related and/or gender issues in the claim were rejected; caseworkers were prompted on any other cases with gender issues at stake but none were brought to the attention of the researchers). Initial (negative) asylum decision received from the Home Office during the period 1 April April Cases based on an asylum claim only (i.e. cases with other related immigration matters such as travel documents, marriage, family reunion were rejected). A review of Home Office asylum decisions can only be applied to applications that have been refused asylum in the UK as the Home Office does not disclose reasons for granting asylum. 24 This same constraint applied therefore to RWRP in this study. 22 The questionnaire was mainly related to another research project which has since been postponed. A few questions relevant to this research had been added to it. 23 This cut off date was later extended to confirm status of cases that remained undecided then or were pending a decision on a fresh claim. 24 An exception to this is the work conducted by UNHCR in the context of its Quality Initiative Project: UNHCR has been able to look at the overall quality of all initial asylum decisions in the UK using a random sampling system. A selection of observations and recommendations published by UNHCR have been used in this report. 22

23 This means that there may well be cases where the application of the Gender Guidance in making a decision on a gender-related case has led to the granting of asylum, but RWRP is unable to comment on these. Conversely there could be cases where the Gender Guidance is being adequately applied, but which are nonetheless refused asylum. However this research did not identify any of the latter. 25 In total over 20 cases from Asylum Aid s database were selected, all female. A selection of these cases has been used as case studies in this report to illustrate the issues raised by our respondents and to exemplify the approach of the Home Office in relation to the implementation of the Gender Guidance (the case studies are not included in the report to argue that the applicants should be granted Refugee Status). Some factual information has been changed to protect the identity of the applicants. Structure of this report This report is subsequently divided into eleven sections followed by a conclusion and recommendations, a list of references and appendices. Section one examines comments made by our respondents in terms of the quality and content of the Gender Guidance, as well as suggestions for improvement. Sections two to seven present comments by our respondents on the following issues relating to the application of the Gender Guidance by Home Office caseworkers and decision-makers: understanding of gender issues in the Refugee Convention (section one), knowledge of women s experiences and status in country of origin (section two), quality and content of country of origin reports (section three), interviewing (section five), gender and credibility issues (section six) and Home Office culture and gender cases (section seven). These comments are often illustrated with examples provided by our respondents and/or Asylum Aid s case studies, set against what the Gender Guidance says on the issue. Section eight highlights specific concerns raised in relation to the processing of female asylum claims via the fast-track system. Sections nine to eleven are concerned with overall issues which have a direct or indirect impact on the use of the Gender Guidance in the asylum determination process, namely the quality of decision-making generally, management failures at the Home Office and additional issues not related to the Home Office s practice. When relevant, all sections are further completed with observations attained in other reports. 25 It was not an intention of this research to provide a representative picture of Home Office decisions and the application of the Gender Guidance in the UK. Rather, this research endeavoured to find examples of good or poor practice as far as the use of the Gender Guidance is concerned, and to bring these examples to the attention of the reader. 23

24 Each section is followed by a list of recommendations, based on our respondents feedback, RWRP s experience, and taking into account existing recommendations, in particular those made by UNHCR in its Quality Initiative Project reports, as well as subsequent responses from the Home Office. 24

25 section one Knowledge of Gender Guidance and comments In order to evaluate our panel of respondents own knowledge of gender issues, we started by asking them to comment on their knowledge of the Home Office Gender Guidance, as well as its content and quality. A summary of their views is presented below. 1.1 Knowledge of Gender Guidance The great majority of people we talked to had been working in the field of asylum determination or related field for three years or more at the time of interview, with a substantial proportion having worked for 5 or more years in the field. Only a few of our respondents said they had been aware of the Home Office Gender Guidance since its publication in March Most had found out about it relatively recently. A few said they were unaware of its existence but amongst them a couple of respondents said they were familiar with other gender guidelines. This result is not surprising given the low profile given to the introduction of the Gender Guidance in the APIs by the Home Office itself in March Reference to the then new Gender Guidance was included only in point 14 of the notes to editors in the Home Office press release on the Female Genital Mutilation Act. 26 This was an opportunity that was missed to bring gender issues to the forefront of the asylum process both for the Home Office s staff and for practitioners representing asylum seekers in this country. It is arguable that the low profile given to the Gender Guidance did little to foster a culture of understanding of gender issues in the asylum process in the UK. 1.2 Comments on Gender Guidance content and quality Among those who were aware of the Gender Guidance, respondents familiarity with it varied greatly, from people having read it once or twice, to people being very familiar with it and referring to it when required. A minority said that they knew about it but were not required to use it in their field of work. Respondents held varied views on the content of the guidance itself but most thought it was deficient and this is reflected in the recommendations expressed (see below). On the positive side, the fact that the guidance was adopted and included in the APIs in the first place was seen as an encouraging, if not sufficient, step forward. It was felt that the publication of the guidance demonstrated an acknowledgment of women s experiences in seeking asylum and in the asylum process. At the same time, it was felt that the guidance could be used to challenge Home Office caseworkers practice when this was deemed inadequate. 26 Home Office Press Release, 3 March

26 It is a really important move that we do have these guidelines because at least you have something to balance, at least you have somewhere to start. [R8] It s important that it s acknowledged that women [ s cases] should be treated with specific [guidance]. I think it s important that there should be a differentiation between dealing with women and dealing with men going through the process. I think that that s important given that globally, generally the experience of women in 2005 is not equal to men. [R9] The [guidance] were a very helpful thing to quote for this client [held at Yarl s Wood] because they weren t following them in the slightest [R5]. Cited as positive was the clarity of the guidance, described as quite easy for caseworkers to absorb and implement which it was thought was appropriate for their level of competence too (the entry requirement has recently been raised to 2 A levels. See section nine below). Also viewed favourably was the fact that the Guidance mentions gender-appropriate interviewing, and states strongly that provision will be in place to ensure an adequate interviewer or interpreter. 27 Lastly, respondents felt it was good that the guidance included reference to women who have suffered trauma and sexual assault and the implications of this in terms of their behaviour and memory (e.g. when interviewed) in relation to a credibility assessment; and that it made mention of women s specific experiences in terms of political activities often seen as low level activities. What the guidelines say about women who ve been sexually assaulted is good. I quoted this bit about them suffering trauma, loss of confidence, self esteem, difficulty in concentrating pervasive loss of control, memory loss. [R5] I think it s quite good. In terms of political claims it recognises that [women s] claims are based on sort of low level activities. Also the fact that women [who] are traumatised are not able to immediately talk about really difficult aspects of their claim. As a barrister, time and time again I see clients just before we go to court and they disclose to me the sexual violence and they ve never told anyone before, and for very good reasons, so I like that [the guidance] recognises that. [R8] However these positive views were qualified by a number of criticisms. The most common view was that the guidance s lack of details and examples seriously undermined its potential use and effectiveness. 27 See below for what the Guidance says on provision of female interviewers and/or interpreters. 26

27 If by quality you mean value of using it in cases, very limited [R9] It s certainly a big step in the right direct ion. But it s certainly not as detailed as it could be. What s there is okay. It s just that it could go further and be more specific. Some slightly more specific reference to victims of sexual trauma would probably be helpful because it s kind of hinted at but not really outright stated. And the assessment of credibility section as well is positive that something along those lines is being said, but it s not really very concrete at all. [R2] On sexual trauma the Guidance states: Women who have been sexually assaulted may suffer trauma. The symptoms of this include persistent fear, a loss of self-confidence and self-esteem, difficulty in concentrat ion, an attitude of self-blame, a pervasive loss of control and memory loss or distortion. Caseworkers should be aware of this and how such factors may affect how a women [sic] responds during interview. I just think they are very vague. And they pick certain things out from the other more detailed guidelines but they omit quite a lot as well They are not very useful to quote, I use the other ones that are more detailed so It doesn t talk about the type of claims women have do they? All it does is cover something about oh may be we should have female interviewer officers and maybe you should know a little bit more about you know the places, the culture where women come from and that s about it, that s about the extent of the guidance, it s just not comprehensive enough [R4] On the provision of female interviewers and/or interpreters the guidance states: Every effort will be made to comply with any request for an interviewer or interpreter or the same sex as the applicant made in advance of an interview. Requests made on the day of an interview for same sex interviewer or interpreter [sic] will be met as far as is operationally possible. This may mean a delay for an applicant while a same sex interviewer/interpreter becomes available. In addition, concepts referred to in the guidance which relate specifically to women s rights issues, such as the definition of political opinion, legal provision to protect women s rights and failure of state protection, were found to be too narrow as well as unclear: The definition of gender is all right. However, there are two concepts not obvious or clear in the guidance which I believe are necessary to emphasise: Human Rights and Women s Human Rights; [and] State Responsibility for Violation of Women s Human Rights, by private 27

28 actors. Th[e] part of the Guidance [on failure of state protection] seems incomplete. It should incorporate the concept of State Responsibility for tolerance of violence against women by individual actors in a broader sense and with clearer and more detailed examples for instance how this operates in domestic violence cases, incest, rape, domestic violence inflicted by diplomats, members of the army, judiciary, or the police, and so on. [R15] Like the rest of the document, the section on Failure of State Protection (par. 5) in the Home Office Gender Guidance borrows from the IAA [definition] gender guidelines entitled Section 2B The Failure of State Pro ection. t However, in addition to the lack of examples provided, there are missing elements which, if they were introduced, could obviate much of the criticism quoted above. For instance, the Gender Guidance does not mention at all the possibility of serious harm being inflicted by the state or those associated with it. Yet the IAA Asylum Gender Guidelines state that serious harm inflicted by the State and/or by those associated with the state, including sexual violence, is the responsibility of that state regardless of its formal attitude or public position in relation to such conduct. 28 This is crucial because there are still cases which are refused partly or wholly on the basis that a particular state agent has acted outside his authority. The Home Office Gender Guidance also fails to remind caseworkers that actual protection in practice in the country of origin should be considered as opposed to what legislation is in place. This is mentioned twice in the IAA Asylum Gender Guidelines under the section on failure of state protection: 2B.3. The actual practice in the country of origin should be considered rather than theory. In some cases state protection may exist in theory, but not in actual practice. 29 2B.8.There may be a failure of state protection in relation to serious harm inflicted by non-state actors. Protection may exist, in theory, but not in practice. Even where the official policy is to provide protection, no protection may exist in practice. 30 The definitions of membership of a particular social group (MPSG) and political opinion as provided in the Guidance also raised criticism in terms of their narrowness. The concept [of membership of a particular social group] is developed in a very narrow way in the guidance. When in a country like Colombia there is 100% of impunity for wife-batterers despite existing national domestic violence laws all Colombian battered women belong to a particular social group. The definition of political opinion should include domestic violence as an expression of male patriarchy repressing women when they challenge male privilege. In addition, the State s tolerance to domestic violence is in itself of political nature. The State denies its protection to the female 28 Section 2B.6 in Berkowitz, N., and Jarvis, C., Asylum Gender Guidelines, IAA, November 2000, p Ibid., p. 20. Examples are provided in a footnote referring to the situation in Brazil and Ecuador. 30 Ibid., p. 23. Examples of failure of state protection are subsequently listed. 28

29 citizen against crimes perpetrated against them by male citizen. Therefore, the guidance should include this form of political opinion too. [R15] The criticism concerning the characterisation of MPSG is not entirely justified. The Home Office Gender Guidance itself provides brief advice on how to assess a claim raising the Convention ground Membership of a particular social group. However, the Home Office has issued a separate API on Membership of a particular social group which explains in further and clearer detail what MPSG might entail and how persecution or discrimination against such a group should be interpreted according to the Convention. 31 It refers extensively to the House of Lords judgment in Shah and Islam (R Viat & SSDH ex parte Shah; Islam v IAT (1999) 2AC 629) which it also quotes. It also refers to subsequent judgments by the Court of Appeal and the Tribunal, in particular the key case of Montoya (9 May 2002). The issue here might be whether the Home Office caseworkers would in fact refer to that particular API and to the judgments quoted themselves. With regard to the Convention ground of political opinion and how this can be interpreted in terms of women s experiences, the Home Office Gender Guidance explicitly refers to the fact that women may be targeted for carrying out activities other than conventional political activities or behaving in what is seen as a non-conformist way in some societies. It provides some examples of this. In addition, it stresses that caseworkers should beware of equating so called low level political activity with low risk. However whilst the guidance also points out that women could be persecuted for political reasons even though they may not regard themselves as being politically active, it could also benefit from being more specific in the following ways: It should show how women s opposition to institutionalised discrimination against women in society may constitute a political opinion (which is mentioned), by including reference to involvement in the women s movement with the aim of improving women s position within society. 32 The Gender Guidance could also have mentioned the practical implications for caseworkers to take into consideration for women seeking asylum, in the way the IAA Asylum Gender Guidelines did: A woman may not directly claim, orally or in writing, that she has been persecuted for reasons of political opinion and may find it difficult to explain the reasons for her persecution. 33 Beyond the specific content, some respondents thought that the guidance s lack of details and comprehensiveness reflected a lack of commitment by the Home Office to see it implemented throughout the asylum process. Lack of commitment was also mentioned when it was felt that operational resources did not match written pledges on the provision of female interpreters or interviewers: The specific guidance on procedure and so on, things like efforts to provide a female interpreter or a female interviewer, it s pretty half hearted, and there aren t any actual commitments in there. It s 31 Home Office API, Membership of a particular social group, available online at: policy/policy_instructions/apis/membership_of_a_particular.ht ml. 32 Berkowitz, N., and Jarvis, C., op. cit., par. 3.25, p Ibid., par. 3.20, p

30 rather hollow to say, We will attempt to provide [female interpreters/interviewers], where they re actually making no attempt behind the scenes with resources to make that kind of provision, or to have a sort of bank of people available. [R2] I wouldn t expect any of Home Office policy on their website to be as comprehensive as the IAA s ones in citing cases and things like that but then they do Operational Guidance notes that are quite detailed and cite case law and things like that and I don t see why their policy guidance in women s cases couldn t be a bit more [detailed]... if you gonna do i t, do it properly. [R4] Questions were also raised as to why there was a need for new guidelines when comprehensive guidelines had been published already, namely the various UNHCR guidelines related to gender issues, 34 RWLG Gender Guidelines for the Determination of Asylum Claims in the UK (July 1998) and IAA Asylum Gender Guidelines (November 2000). In addition, the Home Office Gender Guidance was unfavourably compared with existing guidelines, referring to its vagueness, which results in their being of little use to refer to in cases of malpractice: I see the IAA guidelines as being really very good and the kind of level of detail that s provided there would be much more helpful if it was in the Home Office stuff as well. [R2] If the guidance isn t followed by the Home Office themselves then there s not much you can use the guidance for to try and get them to follow it if they haven t complied. [R2] They are not very comprehensive are they? Compared to the IAA guidelines, and the UNHCR one and the RWLG ones. We ve got too many guidelines maybe Why did the Home Office bring in guidelines when there are already three sets of guidelines that we use That printout on their website is so scant compared to the work that was done on RWLG guidelines, it s kind of meaningless [R4] The Gender Guidance s status within the legal asylum system was thought to further undermine its impact. A number of respondents felt that the Gender Guidance held a low status within the APIs, or was seen as optional, thus contributing to the failure of the guidance being systematically implemented. It depends on what calibre, what status they have in law really ultimately. If they re just guidelines and there s discretion it s going to be difficult, they should be perhaps stricter. [R9] At the point of adjudication, at the point of decision, their status is quite weak. if you compare to other guidelines, country guidelines, report of determination, star determinations, all these other guidelines 34 See UNHCR various guidelines relating to gender issues online at 30

31 are given a lot more weight. And gender guidelines are almost seen as optional and kind of something you can disregard often withou t explanation. People may not be aware o f them or if they re aware of them, they think they can ignore them as they want. And even if advocates or solicitors or representatives or counsels are pointing out the guidelines, they re often disregarded. [R13] When they have the sort of status where they re sort of optional who s to blame judges for not using them or Home Office presenting officers for not adhering to them because they re so vague? [R13] In addition, separate Gender Guidance was thought to be less effective than if integrated within all APIs addressing different procedural issues in the asylum system (for instance on assessing credibility, interviewing, etc. at the moment the guidance is only referred to in the other APIs (for instance in the API on Assessing the Claim). The fact that the Gender Guidance is separated from other APIs or that information on women is not integrated in the Country of Origin Information (COI), was seen as diminishing the likelihood of using such specific advice or information as it was quite easy to miss. It s extremely unlikely that a Home Office caseworker would actually turn to the Home Office guidelines before conducting either an interview or before reaching a decision on an asylum claim. And it s in a separate API that people aren t likely to reference during the working day. It s not really an integral part of the decision making process. I can t really imagine a Home Office caseworker actually turning to [the Gender Guidance] and looking at it. [R2] In the context of its lack of strong status and overall vagueness in comparison to the existing guidelines, it was thought that the adoption of the guidance by the Home Office was just paying lip-service. It smacks of tokenism as it is. There is nothing concrete. There s no detail. [R2] There is a big difference between policy and actual practice. What does the Home Office say about these guidelines that they ve got on their website? Are they just doing it to placate people or keeping them quiet by saying we ve got something about women? [R4] They ve obviously looked at the other [guidelines] and acknowledged them, because I suppose they feel that they have to [R14]. 1.3 Suggestions on how to improve the Gender Guidance Unsurprisingly, on several occasions respondents suggested that the Gender Guidance needed to be elevated to a higher status or mainstreamed within the asylum procedures as a whole to be taken seriously or to ensure it is effectively implemented by Home Office 31

32 caseworkers and decision-makers. It was thought that this was all the more important because the Refugee Convention and its interpretation remain based on male experiences. Make the guidance a stronger form of policy that can be relied on as law. [R9] It is important that the gender guidelines be stronger and have more of a status because the Geneva Convention is so biased towards men and is so steeped in that context where it was written to do with the political active male. Because it is not recognised in the framework for actually applying for asylum, it almost feels like there needs to be a counterbalance. [R13] In some ways it might be better if it perhaps existed separately as gender guidelines but was also integrated into the other APIs as well more clearly. I think if you ve got a holistic [API] document that tells [Home Office caseworkers] how to assess credibility and gender, you should encourage them, force them to look at it on a regular basis that would be an effective way of raising standards more generally and also getting them to specifically address gender issues. But there could be all sorts of things that they d be ignoring i f you were just to tie them to the gender guidelines. [R2] There was also a view that all the APIs should be systematically used as part of the decision-making process, and that they should be presented in an easy and clearly understandable format to facilitate such use. Use of concise, easy to use, helpful guidance needs to be built into the process [R2]. Alongside comments made on the content and quality of the Gender Guidance, suggestions were made as to how to consolidate it, in particular by providing concrete examples and better guidance. More specific examples and some more concrete commitments to behave in certain ways. More specific guidance on assessing credibility, victims o f trauma, sexual or otherwise, and some of the late disclosure issues that specifically arise in women s cases. But these aren t problems just for women. It s also problems for other victims of torture and trauma. Explain what reasonable behaviour is and how people might react in different situations and so on. Some more general guidance on behaving sensibly in interviews, and a proper approach to assessing credibility would be a really big step in the right direction, without it necessarily being specifically referenced to gender. [R2] 32

33 Recommendations covering matters already raised with the Home Office, and their responses The Home Office should institute monitoring of the use of Gender Guidance in detained fast-track: according to the Home Office, a Senior Officer checks all decisions before they are served, but we are not aware whether the use of Gender Guidance is systematically checked as part of this process. RWRP recommendations The Home Office should ensure that the use of Gender Guidance by caseworkers is compulsory for all women s or gender-related cases their use should be checked as part of existing practice of sampling and checking a proportion of decisions by a senior caseworker. The Home Office should improve the content of the current Gender Guidance to the standard of the IAA/RWLG/UNHCR gender guidelines. UNHCR and RWLG should be consulted on this revision. The revised version should be brought to the attention of stakeholders through the Home Office usual communication networks. The Home Office should mainstream gender issues throughout all APIs as well as having separate Gender Guidance, and in doing this consult with agencies such as UNHCR and NGOs to ensure quality. The Home Office should ensure that it is implementing its Guidance adequately in the UK in order to strengthen the credibility of its promotion of Gender Guidance to European Union member states RWRP, Gender issues in assessing asylum claims: spreading good practice across the European Union, op. cit. 33

34 section two Understanding of gender issues in the Refugee Convention 2.1 Overview A major obstacle to the implementation of the Gender Guidance identified by respondents was a lack of understanding of gender issues in the context of asylum and the Refugee Convention. There was a suggestion that Home Office caseworkers and Home Office Presenting Officers (HOPOS) [definition] thought they knew about the Gender Guidance but did not actually understand how to implement it or what the guidance was about. Another view was that the use of Gender Guidance was perceived amongst decision-makers as a way to give some advantage to women s claims. Comments included: There's an awareness that gender issues are important, but not of knowing what to do. [R1] The inference is that if you use them that you re giving a woman an advantage. That was expressed in one of the decisions, that [the female applicant] wanted to have the advantage. Now that might just be use of English. But I think it s seen that it s almost diluting the standard of proof required, you know, if you utilise or employ the gender guidelines [R14] Gender obviously isn t an issue as far as [the Home Office] is concerned. And it s something they might get round to belatedly incorporating, but it s not something that s at the heart of decisionmaking at all. It s just not a priority. [R2] When considering problems relating to decision-making on women s asylum claims, many respondents raised issues and provided examples pointing to a lack of understanding or correct application of the Refugee Convention, both in general and in relation to women s experiences in particular. One respondent described a lack of understanding of why women claimants are here, and of how the facts of a woman s case link to a need for international protection, or of what it is to be a woman in a particular political or religious context in a certain country. It was noted: There is a lack of understanding of the five convention grounds and how to apply them, and how to be inquisitive about applying the facts of the claim to the law. Obviously this trickles down to the most vulnerable, and [is] the most damaging to the most vulnerable. [R1] 34

35 This lack of engagement was seen as part of a general lack of interpretation of the Convention at the initial decision stage, and a tendency to refuse asylum or leave to remain on credibility grounds (see section six for more on this). Occasionally Convention grounds were raised in a general way but refusal letters focussed on credibility, lack of future risk and the supposed availability of protection, and gender issues were not usually mentioned. Whether you take a gender orientated approach to the Refugee Convention isn t really an issue for the Home Office because they re not really interpreting the Refugee Convention at all anyway. They just refuse on credibility grounds. It just doesn t arise. [R2] In its Quality Init iative Project 2 nd report to the Minister, UNHCR concluded that there were major shortcomings in terms of understanding the Refugee Convention and related law concepts: From its ongoing assessment process, UNHCR has observed that the Convention and the principles cont ained in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status are often incorrectly interpreted and misapplied. The application of poor methodology results in grants or refusals of refugee status for the wrong reasons, or in some cases, an unjust denial of international protection UNHCR notes with concern that a significant number of caseworkers, including a number of SCWs [Senior Caseworkers], incorrectly interpret key refugee law concepts, such as the Convention reasons, what constitutes persecution, sufficiency of protection in the case of persecution by non-state agents and the internal flight alternative. 36 UNHCR further found that established caseworkers and senior caseworkers may lack, or not be equipped with, the necessary skills and knowledge for refugee status determination UNHCR assessed 438 initial decisions between March 2004 and August See: UNHCR, Quality Initiative Project, Second Report to the Minister, pp. 6 and 11. The report is not dated but as it concludes on Phase 3 of the project, which ran from February to August 2005, it is likely to have been completed in autumn A response from the Minister is dated 24 October For a copy of all UNHCR Quality Initiative reports and responses from the Minister, see the Home Office weblink: 37 UNHCR, Quality Initiative Project, Second Report to the Minister, op. cit., p.11. UNHCR linked this poor level of competence to various factors, including poor management, communication weaknesses, inadequate resources and stress. Ibid., see pp

36 2.2 Gender-specific persecution A number of examples illustrating the misapplication of the Gender Guidance, in cases where Female Genital Mutilation (FGM), rape and trafficking were raised as alleged forms of abuse, are presented below Gender-specific persecution FGM The lack of analysis of women s experiences of harm such as FGM according to the Refugee Convention was highlighted. One of the hot issues at the moment is... female genital mutilation cases. I see very little evidence of those being approached in a gender sensitive, intelligent way. [R2] In one case described, the applicant was a young woman from Togo who fled FGM. The Home Office refused her claim, stating that it did not come within the terms of the Refugee Convention because her fear of persecution was not for one of the five Convention grounds. At her appeal the Immigration Judge noted that the Home Office were not following their own guidance on the issue, although she still found that the client was not a member of a particular social group after considering recent case law. She also found that, contrary to the Home Office view, the client s credibility was not in doubt, and that she would be at risk of FGM on return, so allowed the appeal under Article 3 of the ECHR. Asylum Aid found similar evidence demonstrating a poor grasp of key refugee law concepts. Asylum Aid case study No. 1 The Home Office stated in its Reasons for Refusal Letter that A s claim on the basis of FGM did not engage the Refugee Convention. A was a Nigerian national who had fled the country after her father tried to force her to undergo FGM. She had gone to the police but had been refused help. The Home Office decision-maker accepted that she had refused the procedure and was now in fear of her father, but stated that her claim was not one that engaged the Refugee Convention: Your claim is not based on a fear of persecution in Nigeria because of race, religion, nationality, membership of a particular social group or political opinion. As such, you do not qualify for asylum in the UK. They also argued that she could have sought help from an NGO which runs a shelter for women fleeing FGM, as well as pursuing protection from the police, and that internal flight was an option. A later won her appeal at the Tribunal on human rights grounds. 36

37 What the Guidance says These issues arose despite the Gender Guidance stating: There are many forms of harm which may amoun t to persecution. Such persecution, if for a Convention reason could result in the woman being recognised as a refugee. These include, but are not limited to: Female genital mutilation The Guidance also refers to the possibility of women who may be subjected to FGM being considered a Particular Social Group: Women who may be subjected to FGM have been found by the IAT to constitute a particular social group for the purposes of the 1951 Convention in some circumstances an applicant who claims that she would on return to her home country suffer FGM may qualify for refugee status Gender-specific persecution rape A caseworker commented that rape was sometimes seen as coming under Article 3 of the Human Rights Act as inhuman or degrading treatment, but she had never seen it accepted as persecution under the Refugee Convention. Another respondent mentioned the case of a woman from Somalia who had been raped and beaten along with her mother, and whose father was killed at the same time. She was refused asylum on the grounds that she had not suffered personal persecution. Another example provided demonstrates how the Home Office caseworker did not relate rape to the Refugee Convention: [Rape] was a random act of violence police out of control, army out of control, nothing much. And they don t take that next step but why was she vulnerable to rape? Why was she available for rape? They didn t rape the president s daughter. They didn't rape the judge s daughter or the police officer s daughter or the mayor s daughter. No, this girl was in a position, because of either her social group or her politics, we don t know why, but possibly one of the Convention grounds that made her easy pickings. And there s that lack of curiosity of saying, but why was she vulnerable to rape rather than the president s daughter? And layering on the Convention to those facts. And coming up with what could be quite a sensible decision. But unless the applicant actually says, I was raped because I am a communist, the rape is a random act of violence. [R1] Asylum Aid also received Reasons for Refusal Letters (RFRLs) on behalf of their clients demonstrating a lack of understanding or recognition that rape or sexual abuse amounted to gender-specific persecution or gender related persecution: 38 GG Section 7, Gender-Related Persecution and the Convention Grounds 37

38 Asylum Aid case study No. 2 Sexual abuse by state agents considered to be failures of discipline A 16-year-old young woman was kidnapped. When she was found by the police she was ill treated and sexually harassed by police officers. She claimed asylum on the basis of her gender and her political and religious affiliations. In the Reasons for Refusal Letter, the Home Office stated that no human rights violations committed by security forces in Turkey were condoned, and noted: These actions arise from failures of discipline and supervision rather than from any concerted policy on the part of the Turkish authorities. They are therefore not evidence o f persecution within the terms o f the United Nations [Refugee]Convention. No link was made between the police harassment and the woman s political or religious identity. The client was granted discretionary leave until her 18th birthday. An application has been made for an extension. Asylum Aid case study No. 3 Rape not linked to political opinion; imputed political opinion not accepted C was arrested, detained, and raped due to her cousin's political activities and family members political links with the fallen Mobutu regime. Her cousin, with whom she lived, was also arrested, tortured and raped. C claimed asylum in 2000 on the ground of imputed political opinion. She was refused in 2004, mainly on credibility, with the Home Office not accepting her account of what happened and also stating that the political situation had changed. The Reasons for Refusal Letter looked at the issue of rape including a consideration of medical evidence that had been submitted, and conceded that she may have been raped, but that there was no reason to fear future persecution. They did not link her rape with her imputed political opinion. Her appeal was also refused: however, in an example of inconsistent decision-making, her cousin was granted Refugee Status on appeal. C has exhausted all her appeal rights and is currently still in the UK and in contact with the Immigration Service. 38

39 What the Guidance says These examples arose despite rape being also mentioned in the Guidance as a form of gender-specific persecution which may be for a Convention reason: Gender may be relevan t when the form of persecution experienced is genderspecific fo r example, rape A woman may experience gender-specific persecution for reasons unrelated to gender (e.g. raped because of activity in a political party) or gender-specific persecution because of her gender Gender-specific persecution trafficking A project supporting women who have experienced sexual violence that almost all their clients claims are refused. Only one client has ever been granted (humanitarian) protection in the first instance but 65% of their clients win their asylum cases at appeal. 40 The project cited a lack of recognition of the risks faced by victims of trafficking and sexual violence on return and doubts about the credibility of applicants (which has a gender dimension) as the main problems with the Home Office s approach: I suppose the credibility claim could also be seen to be gender related in terms of not taking women s stories seriously about gender violence and how that would affect them. [R13] Asylum Aid s experience concurs: Asylum Aid case study No. 4 Trafficking not considered as engaging the Refugee Convention in addition to rape by security forces not being considered persecution by state agents D had witnessed an assault by police or army officers, and was abducted and raped repeatedly by state agents. She was helped to leave the country but then forced into prostitution abroad before eventually being helped to flee to the UK where she claimed asylum. The Home Office refused her asylum claim, stating that the actions of the security forces arose from failures of discipline. They expected her to go to the police or army for protection despite the fact that they were the agents of persecution. The refusal letter also stated that Trafficked women from Bangladesh are not considered to form a cohesive social group, without amplifying their argument in any way or considering whether her sexual exploitation at the hands of traffickers was for a Convention reason. The case has been sent for Judicial Review of the Home Office s decision to treat it as a NSA (Non-Suspensive Appeal) case. 39 Home Office Gender Guidance, op. cit., Section 3, Gender and Persecution. 40 In fact research by RWRP and the Poppy project published on 1 March 2006 reveals that whilst the great majority of trafficked cases the project represents are being rejected at initial decision-making level, over three quarters of those determined at appeal level are accepted. See Richards, S., Singer, D. and Steel, M., Hope Betrayed: Victims of Trafficking and their claims for asylum, London. The report is available online at 39

40 The report on the South London Citizen s Enquiry into Lunar House also raised the issue of trafficking: Other key concerns o f the enquiry are the lack of recognition of trafficking as grounds for asylum. The enquiry team met Mart ha, a young woman who had been raped and sex-trafficked from India and was deeply traumatised. Caugh t between the prospect of detention and returning to her trafficker, she was totally 41 unrepresented and had been offered no assistance or advice. What the Guidance says Trafficking is specifically mentioned in the Guidance: There are many forms of harm that are more frequently or only used agains t women that may constitute torture or cruel, inhuman or degrading treatmen t and which may amount to persecution. Such persecution, if for a Convention reason could resul t in the woman being recognised as a ref ugee. These include, but are no t limited to trafficking Gender-related persecution and the Convention grounds Gender-related persecution and Membership of a Particular Social Group According to various respondents the Home Office caseworkers do not engage with the Convention ground Membership of a Particular Social Group (MPSG) and do not apply it to women s claims. In an Iranian case, the Home Office refused to accept that domestic violence could mean a woman was a member of a PSG. Another respondent also noted that in a domestic violence case, the interviewing officer was unaware of the implications of Shah and Islam 43 for the case. Asylum Aid has also come across a similar lack of engagement with MPSG in refugee claims: Asylum Aid case study No. 5 Particular Social Group not understood/interpreted properly 41 Back, L., Farrell, B. and Vandermass, E., Report on the South London Citizen s Enquiry into Service Provision by the Immigration and Nationality Directorate at Lunar House, South London Citizen: London, 2005, pp Home Office Gender Guidance, op. cit., Section 3, Gender and Persecution. 43 Islam v SSHD; R v IAT ex parte Shah [1999] INLR 44, [1999] Imm AR 283 (HL). 40

41 E was involved as a human rights activist in Turkey from a young age. She saw a close relative killed. She was detained, tortured, and sexually abused. She subsequently exposed the plight of the Kurds in Turkey. Her political involvement was dismissed, as well as the claim that she was at risk on account of her race and religion. The Reasons for Refusal Letter said that her claim to be from a Particular Social Group was not well founded and that Kurdish women do not form a social group within the terms of the Refugee Convention. This blanket statement demonstrates the lack of understanding of how the concept of Particular Social Group can be interpreted in the Convention, as defined in Shah and Islam, which is referred to in the guidance. E appealed against the decision but her case was dismissed on both Refugee Convention and Human Rights grounds. The tribunal accepted that she had been harassed as a Kurd but also established that she could relocate to another part of Turkey. After submissions from Asylum Aid the Tribunal has agreed to reconsider her appeal. What the Guidance says Arguably, the ground of MPSG under the Refugee Convention is one of the most complex to establish. It was incorporated in the Refugee Convention at the last minute, without discussion let alone much explanation of what constitutes MPSG, following the intervention of the Swedish delegate who stated: experience had shown that certain refugees had been persecuted because they belonged to particular social groups Such cases existed, and it would be well to mention them explicitly. 44 In the UK, interpretation of this ground was defined by several key judgments, starting with Shah and Islam, which is considered the base line on MPSG in UK law. 45 The Home Office Guidance itself provides a limited explanation of what constitutes MPSG, with a brief reference made to Shah and Islam, but it also refers to another API dedicated to providing guidance on MPSG which is much more detailed (see section one on comments on the guidelines): Most women who are persecuted will be covered by other Convention grounds i.e. race, religion, nationality and political opinion, whether actual or imputed. However in some cases gender may be a factor in recognising membership of a particular social group or an identifying characteristic of such a group. (caseworkers should refer to the API on Membership of a Particular Social Group for a more detailed definition on what constitutes a social group) The House of Lords held in Shah and Islam that women in Pakistan constituted a particular social group. This was because they were perceived as not being entitled to the same human rights as men June Fraser, Review of case law on Particular Social Group from 1999 to 2005, Women s Unit, Refugee Legal Project (Legal Services Agency): Glasgow, November 2005, p June Fraser, op. cit., p Home Office Gender Guidance, op. cit., Section 7, Gender-Related Persecution and the Convention Grounds 41

42 2.3.2 Gender-related persecution and political opinion A recurring issue raised in relation to women s experiences in the light of the Refugee Convention was a general lack of understanding by Home Office decision-makers of the nature of political activism outside of Europe. Decision-makers viewed activities such as leafleting or providing care, frequently carried out by women, as low-level political activities which did not place women at risk. An example was given of an African woman who was a nurse and who had given medical assistance to rebels under duress when they took over her village. When she escaped she was tortured by government forces for treating the rebels: And when she came to seek asylum she was refused. It simply stated anyway that her participation in the war was very minimal. But then that s why we said that, okay, she is a woman, she participated. However you wouldn t expect her to have taken a gun like a man We felt that was unfair, that low level of participation. However low or little, you are participating. [R6]. The participation of Kurdish women in politics, by providing food and shelter, has also been discounted as low level, meaning that women s cases are even harder to win than those of Kurdish men s. In the case of a woman from Zimbabwe whose husband had been working at a high level for the MDC and was killed, the Home Office refused her claim, arguing that her political activities (holding meetings in her home and supporting her husband s work) were very low level and that there was no evidence she was at risk. Her representative commented: Just because she s not running things doesn t mean that she s not as at risk as those other people that are making those high level decisions, because [the security forces] are not going to say Oh look, you were only making tea, you weren t involved in that decisionmaking process, they re going to treat her exactly the same. So it s not recognised, the role that women do in supporting maybe more important activists in the family. [R8] Asylum Aid s experience concurs: Asylum Aid case study no. 6 Political activity described as low level F was detained and tortured by Togolese security forces because of her membership of an opposition party and her father s political activity. She joined the youth group, campaigned, distributed materials and attended meetings. She escaped from detention and came to the UK in 2002 where she claimed asylum on the basis of her political opinion. She was refused. Her claim was reconsidered in 2004 when, in its Reasons for Refusal Latter the Home Office stated: due to the low level of involvement you had with the [youth group], it was not believed that this would have brought you to the adverse attention of the 42

43 Togolese authorities, therefore, it is not considered that you have a well-founded fear of persecution. F was later granted refugee status at appeal. What the Guidance says The examples above show a lack of adherence to the Guidance which states: The gender roles in many countries mean that women will more often be involved in low level political activities for instance hiding people, passing messages or providing community services, food, clothing or medical care. Caseworkers should beware of equating so-called low level political activity with low-risk. The response of the state to such activity may be disproportionately persecutory because of the involvement of a section of society, namely women, who because o f their gender it is considered inappropriate for them to be involved at all Gender related persecution and imputed political opinion In addition, women may have a political opinion imputed to them due to links with family members. In the case below, the risk due to family association was denied. Also in the case of C from the Democratic Republic of Congo highlighted in the section on Gender-specific persecution rape, the Home Office did not accept her account of being detained and raped or that she was at risk because of her family s political activities. It was noted that the significance of being a daughter or wife of an activist and the connections between politics and race, religion or social group were not understood, as well as the particular vulnerability of being a woman from a group which could offer no protection. Another example of this, from Asylum Aid s cases, is provided below: Asylum Aid case study No. 7 Imputed political opinion not recognised G had fled her country and gone to a refugee camp in a neighbouring country with her father as a child because her father, a soldier in the ex-president s army, was in danger when rebel forces attacked their town. She was raped and tortured in the camp and her father died. She was assisted to come to the UK where she claimed asylum on the basis of political opinion due to her association with her father. However in their letter refusing her claim, the Home Office stated: You have only provided one reason t o fea r persecution in the Republic of the Congo, namely your father s association with the [former] regime. You have failed to credibly sugges t how you would be associated with your father. You have provided no examples o f past mistreatmen t in the Congo to support your assertion, nor have you suggested any reasons for why you would suffer persecut ion in the Congo. 43

44 The letter clearly contradicts itself in denying that the claimant had suggested any reasons for fearing persecution, after it had earlier acknowledged the reason provided. In addition, the woman s association with her father was self-explanatory as it was an immediate family relationship and imputed political opinion in these circumstances is expressly described in the Guidance. The client appealed against the decision but lost her appeal. What the Guidance says These examples run contrary to the Gender Guidance which states: Women may face persecution because of a Convention ground which is attributed or imputed to them. In many societies a woman s political views are often seen as aligned with relatives or associates or with those of her community. It is therefore important to consider whether a woman is persecuted because of a Convention ground which is attributed to her. Religion and political opinion in particular need to be properly interpreted to include women s experiences Gender and Internal Flight Internal Flight should be considered only when it has been established that an asylum seeker has a well-founded fear of persecution in one area of her country of origin. 48 This is a particular issue for women asylum seekers because a suggestion that there is an internal flight alternative (IFA) for them means they are expected to relocate probably without family support. In many refugee-producing societies this would mean without access to resources as well as financial help or the social welfare support provided in most western countries. In addition, in many refugee-producing societies, a woman living on her own (with or without children) can be stigmatised and discriminated against socially, culturally and/or legally. As a result, if forced to move to another part of her country, a woman may face hardship, including having to rely on prostitution or being vulnerable to further abuse or exploitation. Various contributors raised the point that the Home Office considered that it would be safe for their client to relocate elsewhere in her country of origin. For example, in some cases the Home Office considered that internal flight was possible without consideration of whether it would be unduly harsh for a lone woman with children one of a number of concepts of refugee law they have seen poorly applied with no reference to the Guidance. One respondent wondered how her client, a vulnerable woman in late teenage, was supposed to relocate in a country where there was no functioning law or judiciary: You can t make your way from one part say of Cameroon all the way down to the south. If [parents] are concerned in this country where there are some sort of laws and you do have the rule of law supposedl y, how can you expect in other parts where the judiciary are practically non-existent or completely under the thumb of the 47 Home Office Gender Guidance, op. cit., Section 7, Gender-Related Persecution and the Convention Grounds 48 See Berkowitz, N., and Jarvis, C., op. cit., p. 26, footnote

45 executive, for these young kids to find any justice? It s not going to happen [R11] In one Iraqi case cited by another respondent, the Home Office claimed that internal flight was possible for a lone woman but this was overturned on appeal. Internal flight was described by one contributor as the Home Office s get-out clause in women s cases. Another comment was: Again [internal flight] does get raised in a very basic way in refusa l letters. I ve never come across any reference to gender... It will be, You can relocate. There are other places in the country where you won t be persecuted. So there s no reference to gender issues. [R2] This evidence is supported by Asylum Aid s own experience: Asylum Aid case study No. 8 Internal flight This woman (referred to above under Trafficking section) had witnessed an assault by police or army officers, and was abducted and raped repeatedly. She was helped to leave the country but then forced into prostitution abroad before eventually being helped to flee to the UK where she claimed asylum. The Home Office refused her, claiming among other things that internal flight was available, because: There is a part o f [your country] in which you do not have a well-founded fea r o f persecution, and to which it would be reasonable t o expect you t o go. In a country which covers an area of [x] square kilometres and has a population of [y] it is considered tha t you could have moved to other areas, where you did not feel a t risk. This woman was a vulnerable victim of trafficking, with mental health problems, a widow with a daughter. She would have had to return to a country with a poor security situation where she feared police, army and her traffickers. The many factors in her case which would have had a bearing on whether internal flight was reasonable were not taken into account by the Home Office. Asylum Aid case study No. 9 Internal flight J was a married woman from India who was pregnant and fleeing violence from her husband who had laid false criminal charges of theft and adultery against her. She was in fear of both her husband and the police. She had been detained in the fast track procedure at Yarl s Wood and her claim refused. At her appeal the judge noted that the Home Office had not refused J on credibility grounds, and she too found J to be credible. However the judge looked at the Country Guidance and decided that internal flight was available, and that the woman s family would be able to assist her, stating: 45

46 There would be available in other parts of India shelters, crisis centres and advice agencies to whom she could turn and furthermore could be referred to specialist lawyers to assis t her and she would have available to her protection of other police authorities in other areas not only at the local level but also at federal level. 49 No specific information was given in the determination as to these sources of help. It appears therefore in this case that neither the Home Office nor the judge took into account gender issues when considering the possibility of internal flight. J was forcibly removed to her country of origin. What the Guidance says The Guidance section on Internal Flight notes that: The caseworker may need to take into account the implications of gender in determining the reasonableness of an internal flight alternative. For example, in certain countries, financial, logistical, social, cultural and other factors may resul t in particular difficulties for women or for particular women eg [sic] widows or single parents. Women may have family ties ie [sic] children which may have a bearing on the reasonableness of internal flight. 2.5 General bias against women s claims Gender-based claims were seen in general as harder to argue than traditional politicalbased claims, partly because of the difficulty in gathering evidence of risk from private individuals, and also because of the effects of trauma on women and the cultural barriers to talking about various issues. One respondent criticized the fact that women were often given protection under the Human Rights Act rather than the Refugee Convention, which afforded them fewer rights. Since 30 August 2005 those granted refugee status are given 5 years leave in the first instance, to be actively reviewed in the light of country conditions before indefinite leave may be given. There may also be an active review at any stage during those five years if there has been a significant, non temporary change in circumstances in the country of origin. The right to family reunion is still not immediately available to people granted Humanitarian Protection. They must wait three years before they can apply. This respondent also felt that women s cases were not taken as seriously. Another contributor thought the system was generally biased against women since their experiences and the way they tell their stories are not accepted. The reality of the situation is women don t leave their homes and travel halfway across the world, possibly dragging children, to total insecurity, when they often come from patriarchal societies and they ve not really been out there on their own... unless they have no choice, but that is not recognised in decision-making....i think that s really the problem. [R8] 49 AIT Appeal no AA/09078/

47 The poor quality of decision-making on issues like rape, domestic violence, trafficking and FGM, and the incredible hurdles to be overcome by women applicants were also noted. Women were expected to go through an intimidating decision-making process and become immediately empowered enough to trust someone with details of traumatic events. It was felt that there were no safeguards in place to protect vulnerable people or take into account the difficulties women face in telling their stories. A negative political attitude towards asylum seekers was also described as affecting the fairness of decision-making Suggestions on how to improve gender awareness amongst Home Office caseworkers There was a widespread view amongst respondents that Home Office caseworkers or decision-makers as well as their supervisors need either training, proper training or further training to understand better the issues women face when facing serious harm, fleeing serious harm/persecution or claiming asylum. There is a strong sense that actual knowledge of the Gender Guidance through training would lead to better decision-making. There is therefore an underlying perception that Home Office caseworkers and supervisors or at least some of them are not systematically trained on gender issues, and that this needs to be remedied with regular on-going and follow-up training to ensure that no members of staff miss it. This view sometimes runs in parallel with another view, according to which there is an overall culture of disbelief at the Home Office, regardless of the issues at stake in an asylum case (see section seven Home Office culture and gender cases). Training is the key - if they have knowledge of this policy first of all they're more likely to apply it; if they have willingness to properly consider cases they will look a t the facts of the case and look at the guidelines and see how it affects things [R8] Proper training on gender issues because if it is a family unit, it s always the man who will speak about his persecution, the whole case is centred round him, nobody will try and speak to the woman to see whether she is experiencing any difficulties, or any issues which woul d amount to her being persecuted if returned [R12]. It was also pointed out that there was a particular need for gender training of Home Office caseworkers at Yarl s Wood Immigration Removal Centre, most likely because cases are fast-tracked there, affording less time to prepare for an interview (see below section eight Women in the fast-track ). Comments were provided on what the content of gender training should be. This included a gendered analysis of the law in countries of origin and how it is enforced there; a better understanding of women s experiences and why there may be inconsistencies in their accounts; ensuring women s experience of flight is being fully investigated when a husband/male relative makes an application on behalf of a family. Training should also include fact-finding exercises and credibility issues, sessions on vulnerability, as well as training in refugee and human rights law. There were also specific 47

48 suggestions on the forms a gender training could take including role-play, videoed interviews, feedback and academics speaking of their areas of expertise. 2.7 Home Office s actual provision on gender training In response to our queries on gender training provision, the Home Office confirmed that four training seminars were held two in Croydon and two in Liverpool (the main processing centres for asylum applications in the UK) in January 2005, at least nine months after the publication of the API Gender Issues in the Asylum Claim. 50 The training was designed by and the seminars facilitated by representatives of a leading informal group of lawyers, practitioners, academics and others working with refugee and asylum seeking women, the Refugee Women s Legal Group (RWLG). 51 Set up in 1996, RWLG s aim is to promote the development of a gendered perspective on refugee law and policy. 52 The group produced the first (unofficial) gender guidelines in the UK in 1998 entitled Gender Guidelines for the Determination of Asylum Claims in the UK (July 1998). The seminars were delivered by professionals with expertise in this field therefore. 53 According to the Home Office, the training seminars were attended by a mix of 80 caseworkers and Senior Caseworkers in total, the idea being that senior caseworkers would cascade information to those caseworkers unable to attend the seminars. It is not known however how this information was passed on in practice. The Home Office indicated that IND trainers attended the training too, so that it could be replicated for newly recruited staff. The Home Office further stated that: Assessing gender issues is now an integral part of the initial asylum casework training. Gender issues are discussed throughout the course in the context of the consideration of the various aspects o f the claim. For example, in the section of the course which assesses reasonableness of internal relocation for a particular applicant, gender will be a key consideration for trainees. Similarly, when trainees are thinking abou t the kind of treatment which is likely to constitute persecution as it relates to and affects the individual, gender will be a major part of tha t consideration. There is additional emphasis when the course examines the 1951 Convention reasons and how these should be interpreted in 54 relation to women s claims. 50 Correspondence with Home Office, 26 January 2006, on file. 51 The group currently operates as an network. For more information on RWLG, go online to 52 As mentioned before, RWLG was consulted over a number of years on the production of the API on gender issues. 53 RWRP was provided with a copy of the training pack, on file. 54 Correspondence with Home Office, 26 January 2006, on file. 48

49 In addition, following recommendations by UNHCR published in the autumn 2005, 55 the Home Office said it had made some changes to its overall training programme, having extend[ed] its induction training programme and introduce[ed] refresher training for all caseworkers in credibility issues and human rights. 56. As seen above, the Home Office also says it is now committed to ensuring a gendered perspective is adhered to when making decision on asylum claims. The Home Office also accepted UNHCR s recommendation that caseworkers and senior caseworkers training needs be held at least every three months. 57 The Home Office said it also accepted UNHCR s criticism of internal trainers, recommending they hold a formal training for trainers accreditation and that safeguards be introduced to ensure that trainers do not hold or express any bias against asylum seekers and refugees. 58 RWRP s comments The evidence gathered in the last few months for this research suggests that as far as understanding gender issues in the Refugee Convention when assessing and deciding an asylum claim is concerned, the Home Office Gender Guidance is not being implemented and/or that the concepts mentioned in the guidance are not sufficiently understood. As a result continuous in-depth training on gender issues is deemed urgently needed. As seen above, the Home Office has indicated that it has taken measures to alleviate the type of problems highlighted in our research. Whilst this and other developments described above are positive, there remain some shortcomings: The induction training has been extended by only four days, from 11 to 15 days, including 12 days Asylum Casework Training Course. 59 This might still be insufficient. In its earlier report Improving the quality of initial decisions (2004), the National Audit Office (NAO) noted the need to introduce a longer training period, possibly on the model of European countries where training lasts up to 6 months for people with no previous legal training: Initial training is relatively short compared with Germany and the Netherlands, for example, where the caseworkers receive around three months (or six months where new caseworkers have not already had legal training) and 40 days 60 training respectively. Lessons could be learned from elsewhere. NAO recommended that developments in asylum law, preparation of refusal letters and human rights issues be covered in more depth alongside the handling of certain types of 55 UNHCR recommended the introduction of a longer training period; compulsory competency assessments; minimum standards for internal trainers, and a training for trainers accreditation scheme. See UNHCR, Quality Initiative Project, Second Report to the Minister, op. cit., p. 30, recommendation Correspondence dated 26 January 2006, on file. 57 UNHCR, op. cit., p. 30, recommendation 12 and Home Officer letter dated 24 October UNHCR, op. cit., p. 30, recommendation 13 and Home Officer letter dated 24 October Correspondence dated 26 January 2006, on file. 60 See NAO, op. cit., p

50 cases, for example involving minors or victims of rape. 61 Only a longer training period can allow for such issues to be examined in depth. However the Home Office admitted that in-depth training on key issues will not necessarily benefit new recruits: Refresher training on human rights and assessing credibility, Medical Foundation Workshops and proposals to enhance interviewing skills will combine to increase the time spent training caseworkers although not all of this will be 62 directed to those undertaking the init ial training programme. The Home Office claims that the current training provision is adequate for all new entrants and that over 80% of decisions sampled at random in 2004/5 were fully effective of better. 63 It adds that 78% of appeals determined in 2004 were dismissed this illust rates that most initial decisions stand up to scrutiny by the independent judiciary. 64 But this still means that 22%, or over one in five initial decisions are overturned on appeal. 65 And whilst rates of appeal vary greatly according to countries of origin, NAO also identified the fact that delays in appeal tended to reduce the rate of appeals allowed possibly because the situation in some countries of origin had improved. In addition, UNHCR suggested last year that the minimum standard qualification for an asylum caseworker should be a university degree or equivalent with asylum competencies. 66 Whilst subsequently introducing a minimum education requirement of two A levels for external candidates, the Home Office did not accept this recommendation and rejected concerns raised by RWRP in terms of the link between low educational level and the quality of initial decision-making: Academic qualifications are not the only factor which determines whether somebody will make a competent caseworker. Not everybody with A levels and a university degree will find it easy to absorb and apply the principles of the 1951 Refugee Convention. 67 Unfortunately, as already mentioned, UNHCR has found many shortcomings related to the competence and skills of not only Home Office caseworkers, but also Senior Caseworkers 61 Ibid., p See Tony McNulty MP, Minister of State, Home Office, Response to Recommendation 4, letter (to UNHCR) dated 24 October Correspondence with the Home Office, 26 January 2006, on file. The sampling mentioned refers to the Immigration and Nationality Directorate s own quality assurance arrangements, including sampling by both Senior Caseworkers and commissioned lawyers from the Treasury Solicitor s Department. See NAO, op. cit., p Ibid. 65 NAO identified a number of reasons explaining the successful rates on appeal, including weaknesses in some of the [refusal] letters, including flawed tests of credibility, basic errors of fact and use of unclear language. Failure in some instances to properly address whether applicants claims amounted to a reasonable likelihood o f persecution if sent back. Ibid., pp UNHCR, Quality Initiative Project, Second Report to the Minister, op. cit., p. 29, recommendations 1 and Correspondence with Home Office, 26 January 2006, on file. 50

51 who are responsible for mentoring and supporting caseworkers and reviewing the quality of their decisions. There are therefore real concerns that the relatively short induction training provided combined with the low level of qualification required for caseworkers will continue to impede good quality decision-making. Recommendations covering matters already raised with the Home Office, and their responses Initial training, content and duration Training should be extended: according to the Home Office, the initial Asylum Casework Training course has been extended, and it already includes 3.5 days training on sensitive interviewing (also to be extended) Training should include gender issues: the Home Office notes that gender issues including gender in the Refugee Convention are already covered in the initial course. Further training on gender issues for staff at Yarl s Wood: according to the Home Office, this is to take place in early Credibility issues: the Home Office has noted that it is setting up training on assessing credibility. Training on Country of Origin issues: the Home Office has commented that it is interested in the idea of country experts coming in for workshops. General cultural awareness and anti-racism: all Home Office staff already undergo compulsory diversity training including on gender issues. Ongoing training and assessment The Home Office should institute a management mechanism to follow-up on training needs both generally and on gender issues: according to the Home Office, a training programme is in place; senior caseworkers also cascade down training to other staff and decisions are routinely monitored; refresher training is now provided. RWRP recommendations 51

52 Initial training The Home Office should extend further the length of its initial training period, as recommended by the National Audit Office, to accommodate in-depth comprehensive training on the understanding of gender issues in asylum claims, in addition to training in refugee and human rights law and country information provided by external experts. Initial training should include discussion of the impact of the negative portrayal of asylum seekers by politicians and the media which can affect caseworkers views; NGOs working with asylum seekers and refugees should be invited to speak. Interviewing skills training should include how to interview people who have suffered torture and trauma, including women survivors of sexual violence, to enhance disclosure. Ongoing training and assessment The Home Office should introduce a system of annual assessment of caseworkers knowledge and awareness of the Refugee Convention and its application, including gender dimensions. Home Office caseworkers should be regularly updated on UK case law as well as on asylum case law in other countries. The Home Office should hold annual workshops with expert speakers on issues affecting many women asylum seekers including domestic violence, FGM, trafficking, and other forms of harm. The programme should be developed in consultation with relevant women s groups and NGOs and attendance should be compulsory. The Home Office should regularly invite external speakers to speak specifically on women s issues in countries of origin: at least, experts from each of top 20 refugee-producing countries every year on a rolling programme; attendance by caseworkers and senior caseworkers should be compulsory. Accreditation of caseworkers Gender awareness and an understanding of the Gender Guidance should be an essential element of any future accreditation system introduced for Home Office asylum caseworkers. 52

53 53

54 54

55 section three Knowledge of women s experiences and status in countries of origin Most respondents identified the lack of understanding of women s experiences in particular in terms of sexual violence - and status in their country of origin as an impediment to assessing women s claims fairly as it was thought that such misunderstanding would inevitably lead to a denial of the credibility of the accounts put forward by women. This misunderstanding or lack of knowledge about women s experiences and the realities in the country of origin also suggests that the Home Office will be unable to assess risk on return objectively, even though risk on return or the existence of an internal flight alternative is a key element in any asylum claim as it is the factor that will determine whether surrogate international protection is required. A lack of understanding of the impact that sexual assault has on women. The failure of the Home Office interviews to correctly and sensitively investigate such claims. The failure to appreciate the effect on such a victim of returning to the place where the assault occurred. A lack of understanding of the position in society of women from certain backgrounds [R16] In their decision-making processes, I really don t think that they have any sense of the geographical areas that people come from, the different countries, what kind of set ups that they have, the tribal set ups, the religious sectors, the different sects and the different dialects. You ve got to look at all these things before you can make decisions about anyone really. [R12] The interviewing officer who interviewed our client was clearly ignorant about the situation of women in Pakistan because he thinks that her claim of having suffered domestic violence for many many years and she s got cigarette burns on her body, is implausible. And what s so implausible about that? Some of the statistics say that 80% of women suffer from domestic violence in Pakistan. [R4] Not seeing that a victim of gender violence is still at risk in a particular country. The credibility claim could also be seen to be gender-related in terms of not taking women s stories seriously about gender violence and how that would affect them. [R13] 55

56 Our contributors noted that Home Office decision-makers often combined a Euro-centric perspective with a lack of understanding of the position of women in foreign countries and their role in politics and society. Often [there are] decision-makers who apply a Eurocentric or Anglocentric perspective when deciding claims in the UK. But added to that you ve got the way women are treated in certain countries. [R17] There s a general lack of awareness o f... the different issues that women are faced with and the oppressive lives that they live. [R12] This lack of awareness was not confined to Home Office decision-makers but extended to adjudicators and judges as well, according to our respondents. Whilst referring to all asylum cases, a similar criticism can be found in Amnesty International s report (February 2004) in relation to assertions made in the refusal letters about specific situations of human rights violations. AI noted that there was, on the caseworkers part, no ability to place events described by asylum applicants within their cultural or political context. 68 Various contributors provided examples of lack of knowledge of country conditions for women demonstrated in Reasons for Refusal Letters. Lack of knowledge was seen as leading to fast refusals, helping caseworkers meet their targets: Sometimes you get Home Office Reasons for Refusal that are just absurd, and you think this person doesn t know anything about the country as such they also have their quota to meet, therefore the less knowledgeable they are the easier it is to refuse, I guess. [R5] Protection was sometimes considered by the Home Office to be available when it may well not be in practice. Legal changes and the existence of NGOs are often used as proof that protection exists. For example, the Home Office has argued that women in Iran can benefit from recent changes in the Penal Code without considering access to protection in practice; it has also argued contrary to the expert evidence - that a young Turkish woman who had been forced to marry a polygamist would have been able to get help from police or women s groups and that domestic violence was not condoned by the Turkish authorities as new legislation against domestic violence had been introduced. One woman was refused asylum and told that as she was so assertive, she could stand up for her rights back home. According to her representative, this showed a lack of understanding of the differences between life in the UK and the restrictions placed on women s freedom of expression in her own country: P is very vocal and she's been fighting her case, they're saying that she's a very assertive woman so if they see a woman who is independent, a woman who is assertive they think that she can survive 68 Amnesty International, Get It Right, op. cit., p

57 in her country because she can stand for her rights. But what they don't realise is that the political environment in their countries doesn't allow women to speak in the way that they would like or the way they can actually speak in the UK, because if P went out and spoke as she does and actually demanded her rights nobody would listen to her because she is a woman, and that applies to the majority of the women. [R12]. In a case of a young woman from Somalia mentioned by one respondent, the Home Office used objective evidence of persecution of women against the applicant. They noted that it was well known that women from minority clans were at a severe risk of rape as she had not been raped, they argued that she could not therefore be from a minority clan. Asylum Aid has come across similar examples: Asylum Aid case study No. 10 Efficacy of protection not realistically considered A 16-year-old woman was raped by two men who forced entry to her home when she was alone after her father had been arrested for political activity. She recognised one as a local police officer. A relative took her to the local council but they refused to assist her with going to the police. She was then helped by her relative to come to the UK and claimed asylum. In their Reasons for Refusal Letter, the Home Office do not dispute the fact that the rape took place, but quote the Country Information Policy Unit (CIPU) report as describing a government inquiry into abuses by police officers. They add: Taking this information into consideration i t is believed that you could have approached the higher authorities in Uganda before travelling to the United Kingdom, the fact that you did not severely detracts from the credibility of your claim for asylum protection The Home Office in this case did not consider how realistic it was for a 16-year-old female who had suffered this violent attack to pursue protection in this way, nor what protection was available in practice. As K was a minor she was granted leave to stay until her 18 th birthday. Asylum Aid case study No. 11 The Home Office caseworker did not consult the CIPU report or other country information to familiarise him/herself with the situation of women and the incidence of violence against women in Somalia, despite the claimant raising the fact that she had been abducted and raped in her statement. L came to the UK in 2004 after her parents and other family members had been killed by majority clan militia. She had been abducted, forced to work and raped by militia. She claimed asylum on the basis of race. The Home Office refused her claim, saying that they did not accept she was from a minority clan. No mention was made in the Reasons for 57

58 Refusal Letter of the abduction and rape or the general situation for women, particularly for single women such as L. There was no reference to the CIPU report, which does include relevant information on the security situation, and on widespread discrimination and violence against women. L is still waiting for a final decision on her case after her initial appeal was refused. What the Guidance says The evidence above shows that the section in the Guidance about objectivity is not being followed in many cases. It states: Caseworkers should familiarise themselves with the role, status and treatment of women in the country from which a woman has fled, using the country information supplied by CIPU [definition]. It is essential to consider a number of issues when gathering information. These include, bu t are not limited to: Position of women before the law political, social and economic rights of women Consequences for women who refuse to abide by or who challenge social, religious or cultural norms Incidence and form of violence against women 69 As well as expecting caseworkers to be familiar with the information, the Guidance also puts the onus on them to assess whether protection is realistically available, saying: It is essential to consider a number of issues when gathering informat ion. These include. Efficacy of protection available to women and the sanctions o r penalties on those who perpetuate the violence. 70 Recommendations covering matters already raised with the Home Office, and their responses The Home Office should improve the quality of Country of Origin Information available to caseworkers: according to the Home Office, action is being taken on this. RWRP recommendations Country of Origin Information As the Home Office Gender Guidance regularly refers to CIPU or COI reports, the Home Office should ensure that these reports include thorough information on women s rights and position in society, as described in the UNHCR guidelines. This information should be mainstreamed throughout reports e.g. in all sections such as freedom of expression, freedom of movement, detention etc, as well as an additional section for women s issues not otherwise covered. 69 Home Office Gender Guidance, Section 10, Objectivity. 70 Ibid. 58

59 See also recommendations made in section two relating to training and education of Home Office decision-makers 59

60 60

61 section four Quality of country of origin reports 4.1 Summary of views Inevitably linked to caseworkers knowledge of countries of origin, the quality and objectivity of country of origin information (COI, formerly known as Country Information Policy Unit or CIPU reports) 71 used by decision-makers was criticised and cited as another major obstacle in terms of the due application of the Gender Guidance. Respondents noted that better information is needed on women s issues particularly on violations committed by both state and private actors. Criticism of the CIPU reports referred in particular to the lack of information on genderrelated persecution and the implications in terms of protection in country of origin or risk on return. CIPU reports inaccurate half the time [R11] Deficient information on countries of origin, in particular related to the relation of the State, violence and women - State and individual s violation of women s human rights by State officials and by private actors. [R15] There were also suggestions that when there was information relevant to women s rights, it was spurious or did not reflect the reality women had to go through to protect their right. I had a case, a young woman where they said there are all these NGOs working there and you can just go there like that. Well it ain t going to happen sometimes, particularly if you re a woman. It is generally accepted there that you will be tracked down. Speak to anybody who s involved in human rights or social welfare type work and they all say, [the persecutors] track you down. [R11] The Home Office [country] report is saying that there s these shelters, there s these NGOs, etc. If you look at the government shelters that I visited they re like prisons in Pakistan, literally. The gates are locked, women cannot leave that building. They claim it s for their protection unless they have to go to hospital or court hearings, they have no life. And [some] are separated from their young boys, male siblings, some lose them. [R12] 71 Following advice from the Advisory Panel on Country Information issued in March 2004, CIPU reports renamed Country of Origin Information (COI) are now being produced by the Research, Development and Statistics section of the Home Office as opposed to its Policy Section. The separation of country information and policy functions became effective in December See APCI Fifth meeting 8 September 2005, APCI.5.1 Home Office Organisational Changes, at 61

62 Yet caseworkers are constantly referred to the CIPU in various APIs, including the Gender Guidance. For instance, the Guidance states: caseworkers should familiarise themselves with the role, status, and treatment of women in the country from which a woman has fled, using the country of information supplied by CIPU. 72 It also states: The caseworker needs to assess objectively whether there are reasonable grounds for believing that the applicant would, if returned to the country from which they seek refuge, face persecution for a Convention reason. It is important to consider fully relevant objective evidence including the country 73 information provided by CIPU. There was one comment about how the quality of the CIPU reports had improved in recent years an improvement related to the work of the Advisory Panel on Country Information (APCI) 74 - but only to point out that the Home Office don t do any work on making sure that [CIPU reports are] actually used properly in the assessment of asylum claims (see also section on management issues). Immigration Advisory Service s detailed reviews of the Home Office's CIPU six-monthly country reports in terms of accuracy, selectivity and objectivity, show the reports are substandard in a number of respects. 75 Following Phase I of the Quality Initiative Project, UNHCR s key observations include the recommendation that a broader range of COI information should be made available to caseworkers. The COI should be sufficiently up-to-date and detailed to facilitate an accurate determination. 76 UNCHR recommended that caseworkers be skilled and trained to do their own country research as well as be encouraged to consult a variety of COI sources and assess its relevance to the applicant s claim. And urges that respected country research is made available unedited [to caseworkers]. Following phase 2 of the Quality Initiative Project, UNHCR pointed to the poor chronologies of COI, out of date materials, lack of focus and ambiguity, and conflicting information in comparison to what is produced in Operational Guidance Notes on specific countries. 77 It further observed that CO I research is often inadequately conducted or misapplied, with relevant information often overlooked and not pursued or tested and provides examples of this. 78 A number of recommendations are provided to enhance content and use of COI, not all of which have been accepted by the Home Office Suggestions to improve content of country of origin information 72 See Home Office Gender Guidance, op. cit., Section 10, Objectivity. Note it still refers to CIPU as this API was issued in March Ibid. 74 See more on APCI work below. 75 See IAS, Home Office Country Information Analysis, online at 76 UNHCR, Quality Initiative Project First Report to the Minister, op. cit., pp UNHCR, Quality Initiative Project Second Report to the Minister, op. cit., p Ibid., p UNHCR, Quality Initiative Project, Second Report to the Minister, op. cit., p. 32. See also Tony McNulty MP, Minister of State, Home Office, letter (to UNHCR) dated 24 October

63 A significant proportion of respondents held the view that there was a need for Home Office caseworkers to have access to better country information; that Home Office caseworkers needed to get a more realistic picture of what is actually happening in countries of origin, and specifically in relation to women s issues or issues that are concerns to female claimants. It was felt that gaps in such knowledge had a detrimental impact on the assessment of women s asylum claims, in particular in relation to the issue of an internal flight alternative (IFA). Respondents thought that the Home Office needed to liaise with grassroots NGOs and rely on and trust more expert reports on recurring themes to compensate for the quality of the CIPU reports, which was deemed to be poor. CIPU reports should systematically contain chapters on women and other vulnerable groups. This is crucial because, as already mentioned, in the guidance on assessing internal flight/relocation alternative, the Home Office specifically advises caseworkers to refer to 80 the relevant country information provided by the CIPU. The guidance indicates briefly which factors need to be taking into account to determine the reasonableness of an internal flight alternative. 81 However, by asking caseworkers to refer specifically to the CIPU reports, there is an assumption that these reports can satisfactorily provide Home Office caseworkers with the relevant information in terms of gender implications, an assumption that is contested by many. Refreshing [caseworkers ] knowledge of the law but also enhancing [their] knowledge of world affairs on a frequent bas s. i [R17]. Before they even try to remove a woman seeking asylum they should think of the country of origin where she comes from and the treatment that she was going to receive after. [R6] More acceptance of what people are saying has happened to them in the countries that they come from. Caseworkers [should be] better educated about the realities of life in war-torn countries, and the realities of life in poor countries for women. [R9] They need to liaise more with the NGOs who are actually working there on the ground to actually get a realistic picture of what s going to happen the moment you send somebody back [R11] It is really important for them to get some concept of how global issues are affecting the women that they are dealing with, they need to have more of a global view about the position o f women and the persecution of women. The evidence that is supported with cases has to be taken more seriously, definitely in cases of women. [R12] 80 Home Office Gender Guidance, op. cit., Section 6, Internal Flight/Relocation. 81 The Guidance reads: For example, in certain countries, financial, logistical, social, cultu r al and other factors may result in particular difficulties for women o r for particular women eg [sic] widows or single parents. Women may have family ties ie [sic] children which may have a bearing on the reasonableness of internal flight, ibid. 63

64 These recommendations tally with good practice as advocated by the UNHCR in its own guidelines on gender-related persecution: Country of origin information should be collected that has relevance in women s claims, such as the position of women bef ore the law, the political rights of women, the social and economic rights of women, the cultural and social mores of the country and consequences for non-adherence, the prevalence o f such harmful traditional practices, the incidence and forms of reported violence against women, the protection available to them, any penalties imposed on those who perpetrate the violence, and the risks tha t a woman might face on her return to 82 her country o f origin af ter making a claim for refugee status. 4.3 APCI discussion on country of origin information and gender The comments quoted above tally with concerns raised at the last Advisory Panel on Country Information (APCI) meeting held in September 2005, as this research was underway. The APCI is an independent body set up under the Nationality Asylum and Immigration Act 2002, to consider and make recommendations to the Secretary of State 83 about the content of country informa ion. t At the meeting, the Refugee Council representative pointed out that despite being listed in the Home Office Gender Guidance and despite referral to the CIPU being made in the guidance, there was a view amongst NGOs that the range of issues affecting women did not appear to be consistently addressed across all Reports, with some not covering areas such as domestic violence, trafficking and political activity. 84 A UNCHR representative also stressed the importance of including gender issues in all reports as they could form the possible basis for a claim. 85 Others present at the meeting pointed to the need to look more broadly at what i t meant to be a woman in a particular country and how gender impacted on access to effective protection. 86 These views suggest that a comprehensive approach to gender issues had not been adopted fully and at all levels of Home Office s practice. At the meeting, a representative of the Home Office s COI Service disputed this view he also said he was unaware of the Home Office Gender Guidance referred to in the discussion. He insisted that each [country] report had a dedicated section on women which usually covered rights in law, representation in politics, domestic violence, activity of women s groups, etc. 87 There was also a discussion about the depth to which country reports should include specific gender issues or general human rights issues. For instance it was suggested that if such issues do not arise in asylum claims (an example was given of 82 UNHCR, Guidelines on International Protection: Gender-Related Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, HCR/GIP/02/01, 7 May 2002, p For all information on APCI, go to weblink: 84 See APCI Fifth meeting 8 September 2005, APCI.5.M: Minu es t available online at par and par Ibid., par APCI, op. cit., par APCI, op. cit., par

65 the situation of women in prison), they should not be expected to be covered by the country reports produced by the Home Office. However if this latter argument is followed, an asylum claim for which specific supportive information is not yet available because those issues have never been raised previously might be wrongly decided. As time limits to be spent on a case are extremely tight, it might prove particularly difficult for legal representatives to find the relevant country evidence on such cases. 88 It has been often highlighted that coverage of information on women s rights is often less available and detailed than information on human rights in general. 89 Furthermore, we would argue that women s rights are part of human rights in general. Recommendations See recommendations in previous sections two and three 88 Since April 2004, time thresholds were introduced to limit the amount of work permissible under the Legal Services Commission (LSC) contract without prior LSC authorisation. See BID and Asylum Aid, Justice Denied: Asylum and Immigration Legal Aid a System in Crisis, April 2005 available online at 89 Rather than commissioning a review of all country reports against the Home Office Gender Guidance as suggested, the APCI decided to circulate the Home Office Gender Guidance to all its members to allow them and the Home Office further reflection on the issue. It was also decided that gender will be discussed at the following APCI meeting to be held in March See APCI.5.M: Minutes, op.cit., par

66 66

67 section five Interviewing The provision of female interviewers and female interpreters is an important factor in encouraging women to speak about difficult experiences particularly because: Many women have been abused by men. Coupled with a fear and distrust of authorities, this fact is likely to seriously inhibit the capacity of a woman to divulge details of her experiences to a male interviewer or through a male 90 interpreter. UNHCR observed that in their experience the choice of gender-appropriate interviewing is crucial not only because clients are more likely to disclose past abuse but also because the interpreter is more likely to understand the sensitivity of the issue and use appropriate language. 91 Various problems were raised in relation to the interview process, including the availability of female interviewers and interpreters, the conduct of interviews, attitudes to and preconceptions about claimants especially with regard to women who had experienced sexual violence, and the lack of investigation of cases of women dependents. 5.1 Availability of gender-appropriate interviewers and interpreters A minority of respondents indicated that they did not usually have problems with requests for female interpreters and interviewers. However most respondents identified the lack of availability of female interpreters and interviewers as a recurrent problem, suggesting a major discrepancy in practice. A representative of a project which works with women who have suffered sexual violence noted that their requests for female interviewers and interpreters were often refused: One of the things we discuss with women is whether they would feel comfortable discussing [sexual violence] at length with a male interpreter of their own ethnic origin and the male immigration officer. And very often they will say No! But... even when there s a forma l request on the file from a legal representative this is often blatantly disregarded. So you can have an interview... that even though it s been clearly stated that part of the basis of this cl aim is to do with sexual violence, then yet... there ll be a male immigration officer and a male interpreter. And the interview continues. I ve never heard of a case where we ve been involved where that s been pointed out and the immigration officer has agreed to reschedule. [R13] 90 RWLG, op. cit., par UNHCR, Quality Initiative Project Second Report to Minister, op. cit., p

68 Every time that I ve asked for a female interpreter and female interviewing officer we haven t had one, so... I can t see how they re following [the Guidance] in the slightest. [R5] Requests for female interviewers or interpreters have been refused on the grounds of provision not being operationally possible. Comments included that the Guidance was often disregarded even when it is pointed out by advocates. A particular concern was the low number of Home Office female caseworkers working at Yarl s Wood, a female only Immigration Removal Centre where asylum claims are subjected to the fast-track system. Going back to Yarl s Wood they don t seem to have any women working there or they are managers no female caseworkers, it i s completely nonsensical, it s a women s detention centre mad I think. [R3] RWRP was told by a Home Office representative in September 2005 that two out of the six caseworkers for the fast-track system at Yarl s Wood were female. 92 The proportion of male and female staff at Yarl s Wood has however been rectified since. 93 According to the Home Office, from February 2006 the proportion of female caseworkers had risen to half of all caseworkers in the Detained Fast Track Process at the centre, including one of the two senior caseworkers, a level which management wished to maintain or increase. 94 According to both spokespeople, they had no problems accommodating requests for female interviewers as they had enough caseworkers and would postpone an interview if necessary. The lack of provision of female interviewing officers at the Home Office in Liverpool was also noted, this being a particular problem for women coming from a culture of male dominance. A representative noted that she had repeatedly asked for female Gorani interpreters (a language spoken in Kosovo) at the Liverpool office, but had been told that this was not possible. She found this incredible considering the number of women from Kosovo who have been sexually assaulted and who would therefore need this provision. On complaining to the Home Office she was told: 92 Conversation with Robin Edwards, Home Office Gender Policy Adviser, 6 September In a letter to Asylum Aid dated of 16 January 2006, Home Office Minister Tony McNulty justified the then ratio of Detention Custody Officers at Yarl s Wood (of 42% female and 58% male) on the basis that there are some security issues at Yarl s Wood but the aim is to reflect as close to life outside as possible. 94 Conversation with David Dunford, Head of fast-track at Yarl s Wood and Hammondsworth, 10 February

69 I appreciate many Kosovan women experienced sexual assault during the war and may find it easier to present their claim to a female interpreter. However the fact remains that the Home Office does not currently have the resource [sic] to accommodate this request, as no suitable female Gorani speakers have applied to be Home Office interpreters. [R16] In the case of one vulnerable Kosovan Albanian client, a female interpreter and taping of the interview were requested. A male interpreter was provided and the interview was not taped. The client objected and was told that her solicitor had not asked for an all female environment. She felt that the interpreter became hostile when she mentioned her history of sexual assault and made errors of interpretation. It was then agreed that for a follow-up appointment a male interpreter could be used as long as the history of sexual assault was not raised again; however this time the interpreter spoke to her in Serbo-Croat, generating misunderstandings in consequence. Similar refusals were reported to have also occurred at Oakington. In terms of asking for a different interviewer on arrival at an appointment, it was thought possible that applicants may be reluctant to ask for a change of staff, because of not wanting the process to be further delayed. A recent enquiry into service provision at Lunar House, the Croydon branch of the Home Office, found similar problems for women in their asylum interviews: At the first Public Hearing of the Enquiry, we heard from Mercy, a young rapevictim who suffered brutal interviewing at Lunar House. This led us to investigate the experiences of women in greater depth. We found only seven women who had been offered the choice of a female interviewer. 95 The enquiry also found cases of inappropriate male interpreters being provided for female interviewees. 96 Likewise, in its 2 nd Quality Initiative report to the Minister (2005), UNHCR expresses concerns that gender-sensitive [interviews] are not arranged as a matter of course. 97 What the Guidance says The Home Office Guidance notes that Every effort will be made to comply with any request for an interviewer or interpreter of the same sex as the applicant made in advance of the interview. Requests made on the day of the interview for the same sex interviewer or interpreter will be met as far as operationally possible. This may mean a delay for the applicant while a same sex interviewer/ interpreter becomes available. 95 Back, L., et. all,.op. cit., p Ibid., p UNHCR, Quality Initiative Project, Second Report to the Minister, op. cit., p. 13, par

70 In addition, the UNHCR guidelines state: Claimants should be informed of the choice to have interviewers and interpreters of the same sex as themselves, and they should be provided automatically for women claimants. Interviewers and interpreters should also be aware of and responsive to any cultural or religious sensitivities or personal factors such as age and level o f education. The evidence cited above shows that there are many cases where the Home Office Guidance is not followed. 5.2 The impact of lack of provision of gender-appropriate interviewers and interpreters on disclosure The provision of female interviewers and interpreters was seen as a very important issue particularly because of the impact it has on disclosure - on a woman being able to tell her story in full detail and therefore have the best chance of her claim being properly considered (see below section on credibility, late disclosure and/or inconsistencies due to trauma for further information on this issue). One contributor considered the lack of disclosure when female staff are not provided to be a crucial issue, giving an example of an interview with a woman who feared FGM, which was conducted by a male interviewer and interpreter. According to the respondent, the whole issue of genital mutilation was skirted around. This can be particularly significant depending on the experiences of the clients. A comment was made that a woman may not want to answer a question if the interviewer was a man. However the view was also expressed that there are women caseworkers who are just as ignorant and unsympathetic as male ones the most important thing may be to have read the guidance on interviewing and have good country knowledge. It was also pointed out that a sympathetic male caseworker may be able to ask the right questions but this would not guarantee successful fact-finding: It s not the questions that the [male] caseworker can t pose. It s the answers that he s not going to understand. And if you want efficient fact finding on issues surrounding women s ill treatment you have to understand the answer as well as the question. You could train a monkey to ask the questions, but would he understand the answers? And would he then know what the next question should be? I feel very strongly about it. [R1] Asylum Aid encountered similar issues with an inadequate interviewer leading to events that were key to the claim not being disclosed at all. Asylum Aid case study No. 12 Interview conducted by male interviewer and interpreter meant that the claimant did not disclose her experiences of rape, which remained undisclosed even at initial appeal. 70

71 M witnessed the rape and killing of her immediate family in Somalia. She was arrested and held in a detention camp for two years during which she was subjected to systematic rape and physical beatings. The Home Office did not believe her story and refused her application. Her appeal was also dismissed on credibility grounds. However a fresh claim was submitted, as the fact that the interviewer and interpreter were both male meant that M did not disclose her history of rape at her initial asylum interview. Her previous representative had not requested female staff. The fresh claim was refused and an application for Judicial Review has now been lodged. These examples tally with UNHCR s observations: It noted in its report to the Minister in 2005 that interviews that are gender-sensitive are not arranged as a matter of course. In particular, it has been noted with concern that the fast-track procedure at Yarl.s Wood is not fully gender-sensitive Conduct of interviews The way interviews are conducted has also been identified as a problem. In one particularly serious case at Yarl s Wood Immigration Removal Centre, a victim of rape was interviewed by a male officer with a male interpreter. She was a victim of rape, it was very clear that she was a victim of rape, she was visibly distressed throughout the interview. I had to stop the interview, I wanted her to go to the loo and sit down for five minutes and just freshen up. And she was not even allowed to do that, it was absolutely horrific. And the pressure Also the moment that she described she had been raped, she never made a secret of it, she was not given the opportunity to speak to a [female] interviewing officer, everyone was male there, except the two of us [representatives]. [R3] A medical expert declared afterwards that the client had been retraumatised by the male officials. In this case, the client herself had not been overly concerned initially about being interviewed by a man. The client s representative made a complaint, sending copies to four senior staff, but received a response only from the interviewing officer himself. In another case at Yarl s Wood, a male interviewer, interpreter and observer interviewed a woman from Pakistan who had suffered many years of domestic violence and rape, and who was distraught, ill and in pain. The interviewing officer used the fact that the client did not raise an issue at the interview but only afterwards with her legal representative, against her. According to her representative, the officer was ignorant about the cultural background of the client (although the APIs require them to inform themselves), and expected a woman who was not educated, and who was normally required to be respectful to men, to be articulate about her claim. The interview was conducted aggressively and the client was intimidated : 98 Ibid. 71

72 She was just so distraught she jus t kep t contradicting herself... because she was just so distraught and she couldn t concentrate at all on what had happened to her in Pakistan and she found it difficult also to explain to men, quite what her husband had done to her. The man was so aggressive. The way he asked the questions, and he was even rude to his own interpreter. You know if his own interpreter was asking for him to cl arify what he d just said he would say it in such a nasty way He was just so sarcastic to me in the actual interview. He s a nasty piece of work. [R5] The representative had asked for a female interpreter but the interviewing officer told her there had not been time to find one. However the representative had in fact found a female interpreter herself in a shorter time than the staff at Yarl s Wood had had. Another woman had been raped and had severe mental health problems as a result. A request was made for a female interpreter for her interview at Croydon but a male interpreter was provided as well as a male interviewing officer, even though the Home Office already knew that the woman had been raped. The standard of this... elderly male interpreter was just incredible, i t was so appalling. He couldn t say the word rape. He used sexual togetherness instead because he couldn t bring himself to use the word rape The interpreter was the one who was more aggressive, he couldn t cope with the subject of the interview. [R5] The representative made a formal complaint about the interpreter but the Home Office was somewhat dismissive. The Home Office later denied that a request for a female interpreter had been made something that is also mentioned by another respondent. Another issue raised was that assumptions were made about women who had been raped or sexually assaulted. For instance, women who reported rape were asked if they had perhaps consented to the attack or they were blamed for the abuse they had suffered. In cases like rape it s something you can t prove, but here they re being questioned that maybe they consent, you know, it was their consent to what happened, you know. [R6] The impact of having experienced trauma was not taken into account according to a representative who described the interview of a client who had been raped and was in Yarl s Wood (also referred to below, in section eight Women in the fast-track ): [The interviewing officer] became visibly annoyed when she didn t answer the questions directly. This is an obvious sign of trauma, he should know that And if he knew that he totally disregarded it. It was horrific. [R3] South London Citizens findings concur with the above experiences: 72

73 We sought specific testimony from victims of rape. All of these women found it extremely traumatic to be interviewed in a public room in front of others. Some told of recurring depression as a result of their experience, saying that the harsh treatment and public nature of the interview had triggered fresh trauma. We 99 discovered that Mercy s story was no t an isolated incident. Views on the poor standard of interviewing are corroborated by the same report: Among the concerns cited in our research are: lack o f courtesy from interviewers; adversarial interviewing techniques; inconsistencies from interviewer to interviewer; interviews conducted in front of many othe r people ; technical difficulties caused by lack of representation; applicants being asked to sign original interview notes without these being read out or understood; applicants not receiving a copy of interview notes. 100 What the Guidance says The section in the Guidance on interviewing includes the following: Women who have been sexually assaulted may suffer trauma. The symptoms of this include persistent fear, a loss of self-confidence and self-esteem, difficulty in concentrat ion, an attitude of self-blame, a pervasive loss of control and memory loss or distortion. Caseworkers should be aware of this and how such factors may affect how a woman responds during interview. 101 It appears that this Guidance has been disregarded. 5.4 Impact of conduct of interviews on assessment of credibility of claimants The way in which questions are asked can affect a claimant s responses during the interview, and decision-makers use apparent inconsistencies arising from confusion this causes for the claimants as a reason to refuse clients on credibility grounds. An example of this was given with reference to Somali women: If a woman was saying that she s been raped and she s been through such horrific circumstances as the Somali women then surely there has to be some understandi ng of that when taking details of their claims but instead the interviews are conducted in a really harmful way. They re very aggressively conducted, the women become confused and instead of recognising that they're confused they re just called liars. They re asked a question and through confusion, through being asked too many questions, they don t explain themselves properly, but instead of asking a second question just to clarify They put that in 99 Back, L., et. all, op. cit., p Ibid., p Home Office Gender Guidance, op. cit., Section 8, Interviewing. 73

74 their refusal letter, You have lied because of this and there s a very good explanation [R8] This runs contrary to the Gender Guidance on Assessing the claim which states: Where there is any reason to doubt the applicant, the claimant should be told of the doubt and should be given the opportunity to explain the reasons behind the actions or statements that give rise to the doubt. Where the claimant has been given no opportunity to explain inconsistencies, care should be taken about 102 using the inconsistencies to question credibility. UNHCR also identified poor quality interviewing as a major contributory factor to inadequate fact finding, which often leads to conclusions based on speculative grounds Lack of investigation of women dependant cases Another gender issue raised was that of women who come as dependents of their husbands. Evidence was provided of women who were part of a couple not being able to tell their stories: If it s a family unit it s always the man who will speak about his persecution.. but no-one will try to speak to the woman to see whether she is experiencing any difficulties, or whether there are any issues for her or her children which would actually amount to her being persecuted if she were to be returned The woman has been too frightened to disclose what she s going through because she s not allowed to speak, she s not allowed to express what she s going through and it s only the husband that is saying what is going to happen to him. [R12] The Guidance does recommend that women applicants are not interviewed with other relatives or children, especially if they may be victims of sexual abuse. However, it does not include a recommendation on separate interviews of adult female dependents. Unlike the UK, the Swedish Migration Board provides specifically that: A woman should always be interviewed entirely separate from her husband and other family members. This is crucial in cases where a woman wishes and is willing to discuss in detail her ground for asylum, such as sexual abuse. It is 102 Home Office, API Assessing the claim, online at: policy/policy_instructions/apis/assessing_the_claim.htm l, Section 11.1, General considerations affecting credibility. 103 UNHCR, Quality Initiative Project Second Report to the Minister, p

75 important to provide a woman with adequate time to develop her grounds, 104 rather than a short interview immediately after her husband s. Another problem raised by respondents was the difficulties they had come across in getting interviews postponed in order to have more time to gather evidence. This issue is not, however, included in the Guidance. 5.6 Examples of good practice in interviewing A handful of examples were provided of what was considered good practice in interviewing which demonstrate the benefits of such good practice as well as a discrepancy in Home Office caseworkers working procedures. An example was given of a Somali woman who was granted asylum at the initial stage after what was deemed a sensitive interview: I had one Somali lady who was given status straight away I went to her interview in Liverpool and I think that was conducted sensitively, but I think you know the only reason she was given status straight away was because she had a sister here who d already been granted refugee status and I think they had DNA results already [There] was more to it than just the sister who was here. [R5] In another example, it was thought that the neutral tone of the interviewer had facilitated disclosure in the case of a young trafficked woman. Incidents were described where the standard of the male interviewing officer was good, but the interpreter was not gender-sensitive. An example of this was the case of the Iranian woman mentioned previously who had been raped and had severe mental health problems: I felt that in that case that the Home Office interviewing officer was very sensitive and I think he did a good job... he was very understanding, but it was all completely ruined by... the interpreter I think the... Home Office officer was following the guidelines. [R5] The same thing happened with another client, a woman from Pakistan. In another case the Home Office cancelled a woman s interview because they could not find a female interpreter, and were happy to allow time for a report from the Medical Foundation to be obtained. The female caseworker was found to be very considerate, although the representative felt that this helpful attitude was because there had already been a lot of media interest in the case: [The Home Office caseworker] was really accommodating but I suspect it was because of the previous history and because the media 104 Migrationsverket, Gender-based persecution: Guidelines for investigation and evaluation of the needs of women for protection, 28 March 2001, 16p., section on Separate investigation at 75

76 got involved. But they were really considerate, they were really friendly and they were really good. I was really surprised. That was a first. [R3] Also, as previously mentioned, several respondents said that on the whole they had not had problems getting female interviewers and interpreters. Other comments included that requests for female interpreters for Iranian clients had been granted. Provision of female staff at the Liverpool office was seen as normally reasonable but had deteriorated more recently. 5.7 Suggestions for improving interviewing In line with the description of problems encountered, a number of respondents stressed the need for the Home Office to provide female interpreters and interviewers systematically whether requested or not, as it was thought it could not be expected from this population to know what their rights are on arrival. It was pointed out that people coming from oppressive regimes may not realise what they could request from officials in the UK. The issue is heightened for women as in some cultures they are not expected to express themselves in public or deal with officialdom. One respondent went as far as saying that interviewers should have had similar experiences to that of survivors of abuse in order to facilitate disclosure and ensure a fairer assessment of cases. Again reflecting experiences with actual cases, the need for female interpreters in detention centres was also stressed. Provide a female interpreter and a female interviewer where it s requested, and actually committing to doing that. Make sure that an adequate number of female interpreters i s booked for any given day at Harmondsworth or Oakington or somewhere else. [R2] Interviewers interviewing women always should be women, and survivors of violence against women. This would overcome several obstacles, it would make it easier for the applicant to disclose her experiences of abuse; it would be easier for the interviewer to understand and provide emotional support for the woman while she is disclosing the details, reliving them, and perhaps blocking the interview flow due to the overwhelming weight of the emotional distress that remembering is causing to her; it will be easier for the interviewer to identify the applicant s credibility. [R15] Also in terms of procedures, it was thought that time restrictions should be relaxed to accommodate provision of medical evidence and when sensitive issues arise in a claim. In this way, women would be better able to clarify their statements rather than have apparent inconsistencies, which could have been resolved, held against them. Less tight deadlines should be implemented when it is established that a person has such sensitive issues to raise as part of their claim. 76

77 More time allowed for women to get medical evidence together prior to even being interviewed. [R9]. Give women more leeway instead of challenging credibility by picking out minute inconsistencies between what they ve said in their statement and what s in thei r interview, which is what they al ways do. 105 [R5] As highlighted before, there is some evidence that in some cases time restrictions are relaxed with positive effect, albeit far too rarely. RWRP comments The suggestions made concur with previously published recommendations. For instance in st Providing Protection in the 21 Century (ARC, 2004), a review of the process of initial decision-making leads to the following recommendations: Female asylum seekers should be given the opportunity to be interviewed by skilled female interviewers and interpreters and should be interviewed in a gender-sensitive environment. 106 Time limits should not be so short, or applied so inflexibly, as to deny an applicant for recognition of refugee status or other humanitarian status a realistic opportunity to have the factual basis of their claim considered (ARC, 2004) Gender-sensitive issues can also affect men asylum seekers, as highlighted by UNHCR more recently: Bearing in mind that many men may not disclose ill-treatment to another man, efforts to accommodate an asylum seeker s preferences should be made in all cases. 107 UNHCR recommended the introduction of gender-sensitive interviewing and interpreting with immediate effect and suggested that asylum seekers could be questioned about their preference at an induction centre or in the screening interview (Recommendation 21). 108 In response, the Minister wrote: Response to Recommendation 21: Under consideration. ACD [Asylum Casework Directorate?] aim to accommodate all requests for gender-sensitive interviewing and interpreting. One problem, recognised by UNHCR, is the difficulty of is finding female interpreters for certain languages. We will consider the issue in more detail to see whether such requests could be made at an earlier stage The Gender Guidance only refers to lack of knowledge (re: siblings political activities) and late disclosure rather than inconsistency. See Section 9, Credibility. 106 Baldaccini, A., Providing P r otection in the 21 st century, Refugee Rights at the heart o f UK asylum policy, ARC: London, 2004, p UNHCR, Quality Initiative Project, Second Report to Minister, p. 13, par Ibid., p. 30, Recommendation Tony McNulty MP, Minister of State, Home Office, letter (to UNHCR) dated 24 October

78 As the details of a woman s experiences, which may include sexual abuse and other sensitive issues, are not known before an interview is conducted, RWRP believes that gender-appropriate interviewers and interpreters should always be provided as a safeguard. Recommendations covering matters already raised with the Home Office, and their responses Female interviewers and interpreters There should be automatic provision of female interviewers and interpreters for women and specialist and gender-appropriate interviewers and interpreters for women and men who report sexual abuse and other forms of torture: the Home Office note that they agree in principle with this provision but that it can be difficult to find female interpreters. Yarl s Wood caseworkers and interpreters should be all female; other detention centres holding women to have a high ratio of female staff: again, the Home Office says that this is under consideration but it can be difficult to find female interpreters. RWRP recommendations All women arriving as dependents to be informed that they have a right to make a separate claim and to be interviewed separately. Women always to be interviewed without family members / friends present. Comfortable and private environment for interviews to be provided. Interviews to be automatically postponed if no childcare provision can be found. The Home Office should reintroduce the right for an asylum seeker s legal representative to be present at their initial interview to make their own record of the interview. 78

79 79

80 section six Gender and credibility issues 6.1. Overview Credibility was raised as a major issue by many respondents, affecting male and female claims alike, but many examples were provided demonstrating that the Gender Guidance relating to credibility issues was not being applied. It was thought that the culture of disbelief at the Home Office was intrinsically linked to credibility (see more on this issue in section seven). The approach recommended in the APIs, of giving an applicant the benefit of the doubt, 110 was not followed. Instead the culture was to refuse everyone, whether male or female, regardless of the objective evidence. Contributors described a preference on the part of the Home Office for refusing on credibility grounds rather than looking at the facts of the case in terms of the Refugee Convention. One respondent pointed to an attitude of dangerous overconfidence on the part of decision-makers - that they knew when someone was telling the truth. Caseworkers should never, ever, ever assume they know when someone s telling the truth or not. They do assume they know and it s so dangerous to think you know. [R1] It was thought that this might be explained because decision-makers wished to protect their reputations by not asking seemingly obvious questions: A child walking home from school in an African country, told by neighbours, Don t go home. Your parents have been arrested. The caseworker appears to think, That couldn t have happened. It happens every day of the week. A child is walking home from school. Hi s neighbours recognise him. Something good, Your mum s just had the baby. It could be good news. But it also could be bad news. Don t go home. We ve seen activity. Come back to me for tea. It happens every day of the week. There s a lack of preparedness to accept that the most outrageous things happen every day. [R1] 110 API on Assessing the Claim, op. cit., Section 11.1 notes the absence of proof in itself is no reason to refuse an application. For this reason the benefit of the doubt must be given to the claimant where: the claimant has made a genuine effort to substantiate the claim; all available evidence has been obtained and checked; the claimant s statements are coherent and plausible and do not run counter to other evidence ( such as objective country information); and the decision-maker is satisfied of the claimant s general credibility. 80

81 One respondent reported that women being interviewed were treated as criminals, suspects and liars. One client had told her representative that the Home Office were trying to disprove her claim: One of the women said to me: The Home Office officers do not ask questions to really find out facts about your claim. They ask you questions to prove that your claim is illegitimate and false. They do not have any intention to help you to flee domestic violence. [R15] Various reasons were giving for disbelieving an applicant. In one case, both the Home Office and a female immigration judge saw the fact that a woman who said she was raped had later become pregnant as undermining her credibility as a rape survivor, because according to them she would not have later entered into a sexual relationship. This suggests that Home Office caseworkers have preconceptions that undermine their ability to assess a claim fairly (see section seven Home Office culture and gender cases ). Similar examples were found by UNHCR in the course of its Quality Initiative Project. In particular, it found a large number of cases where one statement deemed by the caseworker to be untrue, often on weak gr ounds, is relied upon to dismiss the credibility of the entire claim. 111 Lack of scars is also mentioned: And once they come to seek asylum they re not being taken into account at all, being that most of them are being queried that if they are victims of war would they show marks on their body of tortures and things like that. But for a woman the torture is hidden. In cases of the women that we come across most of them are raped. [R6] On the issue of signs of torture, the section in the Guidance states: Caseworkers should be aware tha t many forms of torture, sexual abuse and violence do not leave physical signs UNHCR, Quality Initiative Report, Second Report to the Minister, op. cit., p Home Office Gender Guidance, op. cit., Section 9, Credibility. 81

82 Asylum Aid Case Study No. 13 Inability to provide information used to undermine credibility N had joined a welfare association of which her father was a long-term member. She had been active in the group, raising funds, lobbying, and recruiting new members. She had attended a demonstration held by various opposition groups and afterwards she was arrested and ill-treated. She then left the country and claimed asylum in the UK on the basis of race and political opinion. She was interviewed and asked various questions about the welfare group. The Home Office refused her claim, saying that they did not believe she was a member of the association: It is noted that for someone who plays such a significant role within such [sic] organisation your knowledge of this organisation is limited. It is not believed that you were a member of [that] Association if you were it would be reasonable t o expect you t o know these questions asked at your interview. The decision-maker did not take into account that N had come into the organisation through her father, who had raised her awareness of the oppression of their ethnic group, and that therefore her knowledge might be limited. She did not know when the association was founded or who the founders were. In a statement made in response to the refusal letter however, she explained that she did not know this because the association was set up many years ago. If the interviewer had investigated in more detail this would have come to light at the time of interview. Also, the refusal letter uses the fact that N had only attended two demonstrations of this organisation as casting doubt on her membership. In fact the claimant had explained that it was a self-help group, with its primary purposes to organise welfare assistance and cultural activities. The lack of demonstrations attended was thus not relevant. N appealed against the refusal of her claim but the Home Office decision was upheld. What the Guidance says The Guidance states: An inability to provide information relevant to an asylum claim may not of itself undermine credibility. In certain cultures men do not share information about their political, military or even social activities with their female relatives and caseworkers should consider whether this might account for gaps in women s knowledge Home Office Gender Guidance, op. cit., Section 9, Credibility. 82

83 Another woman who thanked Britain for giving her protection at the end of her interview was refused on the basis that this showed she was an economic migrant and not a refugee as she had claimed. In another case, the Home Office told a Somali applicant that he was not from a minority clan as his appearance was robust and he spoke good English. Credibility can also be linked to a lack of knowledge of the country situation on the part of decision-makers: one caseworker noted that factors such as women s freedom to work or an understanding of the political situation were not taken into account when assessing an applicant s credibility. Women were disbelieved if they said that local organisations had not helped them. A woman from Cameroon, whose credibility was doubted by the Home Office and who was refused, was further disbelieved by a judge when she said that she was refused help by two NGOs [definition] before fleeing: This asylum seeker was saying that it was forced marriage and FGM and she said Oh, I went to these two NGOs and I met them I didn t get past the receptionist because they said It s a family matter, you ve got to sort it out with your husband. [R11] Another possible reason given for doubting credibility was suggested in the case of torture survivors, where it might be that the interviewer preferred to disbelieve the applicant in order to avoid having to look into the full details of the claim. When a natural reluctance on the part of the applicant to dwell on their experiences is added to this, the effects can be that a decision has been made without the full facts of the case being heard. One respondent commented that there was no allowance for gender issues in Section 8 of the Asylum & Immigration (Treatment of Claimants, etc.) Act 2004, 114 which deals with behaviour which is deemed to damage a claimant s credibility. In fact, the guidance on the application of Section 8 does contain reference to gender issues and also refers decision-makers to the Gender Guidance itself. In the section on giving a reasonable explanation for not producing, or destroying, a travel document, or for not answering questions by authorities, it states that: In many cases, the following should be seen as giving rise to a reasonable explanation: 1. Exceptional situations where the claimant could not easily have disobeyed the instructions or advice of a person (such as an agent) who offers advice about or facilitates immigration into the United Kingdom Special consideration may need to be given in the case of severely traumatised adults. Cultural norms may make i t difficult for one person to disobey the 114 Section 8 came into force on 1 January 2005 and provides a new framework for the consideration o f credibility issues in asylum and human rights claims and imposes an obligation on all deciding authorities to regard certain behaviour on the part of a claimant adversely when they assess the claimant s credibility. See API on Assessing the claim, op. cit., Section 11.2, Asylum & Immigration (Treatment of Claimants, etc.) Act 2004 i) Introduction. 83

84 instructions of another, particularly across gender and social class. See the API on Gender issues in the asylum claim. 115 This respondent had seen many cases where vulnerable women had had Section 8 used against them which would explain why he was not aware that the guidance does in fact urge special consideration for these groups. 6.2 Credibility, late disclosure and/or inconsistencies due to trauma It was noted by a significant number of contributors that late disclosure was being used to doubt an applicant s credibility. This was a problem for both men s and women s claims but can particularly affect women as it is well documented that disclosure of particular experiences such as rape and sexual violence may be difficult and thus delayed. The difficulties for women were described as follows: The work that I've done with women over the years shows that women really need a lot of time to disclose. Disclosure is so important because 1) they're not sure if they can trust anybody, 2) it's where that information is going to get to and 3) it's about some very, very personal stuff that I think takes a lot for women to disclose. You know if a woman has been raped, no matter how sympathetic another woman will be, she is not going to immediately disclose and say that's what's happened to me [R12] For me, as a barrister, time and time again I see clients just before we go to court and they disclose to me about the sexual violence and they ve never told anyone before... perhaps they ve had men representing them, perhaps nobody s asked them and of course you don t say it, it s very hard to say the words I was raped, whereas if someone says to you, Were you raped?, it s much easier to nod, and people are too scared to ask those things because they think I ve no right to ask, it s up to them to tell me. [R8] This issue is closely linked to that of gender-appropriate interviewers and interpreters (see above section five interviewing, for a case study of an Asylum Aid client where late disclosure due to rape was a factor in her refusal). One contributor said she felt very strongly about the impact of male staff on the lack of disclosure by female applicants and therefore the problem of all the facts on the case not being available or not being properly understood. A recent study by a clinical psychologist who interviewed refugees and asylum seekers on issues affecting disclosure notes: 115 API on Assessing the claim, op. cit., Section 11.2, Asylum & Immigration (Treatment of Claimants, etc.) Act 2004, vi) What is a reasonable explanation?. 84

85 Sexual violence and rape are often taboo subjects and can bring abou t feelings of shame. Women who have been subjected to sexual assault may be shunned by their community and family, should this be revealed, and therefore may not disclose it in their asylum interview. Psychological research has shown that feelings of shame and embarrassment are a common reason 116 for inhibiting disclosure. The study highlighted various issues for women which echo points raised in our research: The majority of participants experienced the Home Office interviews as difficult and reported difficulties with disclosing personal details. Frequently cited reasons for this were negative emotions, such as feeling too traumatised by past experiences, and feelings of shame, especially for people who had been sexually abused. The interview data also showed that disclosure was not just based on personal decisions, but also related to int erpersonal-, situational-, contextual-, and culture-specific factors. For example, the attitude of the Home Office interviewer was an important factor in either facilitating or impeding disclosure. Other factors cited as aiding disclosure included meeting the interviewer before, having a trusting person in the room, explaining the interview procedures, and using female interviewers and interpreters for women, especially when the woman has a history of rape. 117 The fact that late disclosure is being used against applicants directly contravenes the Guidance which states: If an applicant does not immediately disclose information relating to her claim, this should not automatically count against the applicant. There may be a number of reasons why a woman may be reluctant to disclose information for example feelings of guilt, shame, concerns about family dishonour. 118 There is also evidence that inconsistencies in the accounts provided is used against women, even though such inconsistencies might stem from the difficulty in having to recount traumatic experiences time and time again and/or memory loss following such experience: They don t take into account the fact that it can be hard for someone to concentrate or tell their experience of being raped, to so many people as well because they re required to tell i t again and again. [R5] 116 Bögner, D., What prevents refugees and asylum seekers exposed to violence from disclosing trauma, Doctoral Thesis in Clinical Psychology (UCL), London: 2005, extract on file. 117 Ibid. 118 Home Office Gender Guidance, Section 9, Credibility. 85

86 The example below, from Asylum Aid's cases, demonstrates how the inconsistencies in an applicant s account, in relation to a traumatic experience, had been used to undermine her credibility: Asylum Aid case study No. 14 Inconsistent account after experience of sexual violence used to doubt credibility O was detained because of her ethnic origin and was raped in detention. She claimed asylum in the UK as she feared persecution on the basis of her race and political opinion. The Home Office refused her claim, stating that her problems had been due to a general situation of civil war, and that her detentions were due to a legitimate investigation of her activities by the authorities. She had disclosed her rape at the interview stage, but the Home Office noted: 'You claim that during your detention you were raped. However, you give conflicting accounts... of when this alleged rape took place and the circumstances under which it took place. It is therefore doubted that this incident actually took place.' On reading the interview record, it can be seen that the 'conflicting accounts' referred to were responses to separate questions referring to two periods of detention, by the same authorities, three years previously. Initially the interviewer thought that the rape had occurred during the first detention, but when s/he queried this, the client corrected him/her. It is possible, as noted in the Guidance, that residual trauma from the attack resulting in 'memory loss or distortion' may have contributed to the slight confusion over the issue, which in any case should not arguably have damaged the credibility of the client. At her appeal against the refusal, the adjudicator found O credible and accepted that the rape had in fact taken place. However,the client lost her appeal on the basis that the country situation had changed and she would not be at risk. She then successfully appealed against the Tribunal's decision and her hearing is awaited. A recent report on Yarl s Wood describes both late disclosure and inconsistencies being used against clients: Late disclosure is often used to discredit women s account of rape. Some women could not initially describe the rape they suffered because of the shame and fear of how others would react. It was only after they were released that they were able to overcome their fears and seek help. One woman was accused of lying because she didn t mention the rape until the end of the Home Office interview when she was asked if she had anything to add. 86

87 The other common way for accounts of rape to be dismissed is to challenge the woman s credibility. Any discrepancy (often the result of translation errors or simple misunderstandings) or events a woman describes which are perceived to be unlikely, is seized on to claim the woman is a liar and hence her account of rape is dismissed. 119 This runs contrary to the Gender Guidance on interviewing women who have been sexually assaulted as well as to the guidance in the API on Assessing the claim, both of which are referred to above (see section five Interviewing ). RWRP comments The problems described above are occurring in the general decision-making context of unreasonable expectations routinely placed on applicants to produce evidence to suppor t their statements, 120 according to UNHCR which further stated: There is some evidence of a lack of understanding of key decision making concept such as the shared duty to ascertain and evaluate all the relevan t facts. A number of caseworkers apply the incorrect standard of proof and have unreasonable expectations as to the evidence the applicant can produce in support of his/her claim. 121 UNHCR points to the positive approach in UK case law where tentative elements of a claim are still taken into consideration in the final decision. In contrast, Home Office caseworkers seem to feel compelled to believe o r disbelieve every aspect of a claim. 122 Recommendations covering matters already raised with the Home Office, and their responses General cultural awareness and anti-racism: all Home Office staff already undergo compulsory diversity training including on gender issues. All decisions should be reviewed before issue: the Home Office notes that decisions are already reviewed on sampling basis and it does not agree to review all decisions. RWRP recommendations 119 Legal Action for Women, Black Women s Rape Action Project, Women Against Rape, A Bleak House for Our Times: An investigation into women s rights violations at Yarl s Wood Removal Centre, Crossroads Books: London, 2005, pp UNHCR, Quality Initiative Report, op. cit., p UNHCR, Quality Initiative Report, Second Report to the Minister, op. cit., p. 1. See also p Ibid., p

88 All out-going decisions should be subjected to independent scrutiny to ensure gender issues have been appropriately dealt with. The Home Office should introduce a mechanism to systematically reconsider all negative decisions without recourse to costly appeals. 88

89 89

90 section seven Home Office culture and gender issues The culture of disbelief at the Home Office has constantly been mentioned as a major obstacle to the implementation of a fair asylum determination system in the UK. Asylum Aid highlighted the extent of this culture of disbelief firstly with the publication of No Reason at all in 1995, then Still No Reason At All published four years later. Since then a number of publications have also commented on the problem, which lies at the heart of decision-making. In 2003, a study commissioned by the Home Office found that: Caseworkers may be advised by senior caseworkers to deal with a claim from a different angle when the necessary COI is unavailable, for example by refusing on credibility grounds. 123 Amnesty International also highlighted the negative culture in its report Get It Right, How Home Office decision making fails refugees (February 2004) based on the assessment of 175 Reasons for Refusal letters. It states: This problem [of denial of credibility] indicates a pursuit of the refusal of asylum claims as an objective rather than a line of enquiry that investigates all the facts and focuses on the individual applicant s need for international 124 protection. UNHCR s recent findings following Phase 2 of the Quality Initiative project support this view: The tendency to reject or disbelief every aspect of an applicant s claim, besides being a reflection of a misapplication of the law, suggests tha t there may be a culture of refusal amongst caseworkers. 125 Respondents in our study also stressed that the culture of disbelief at the Home Office affects all cases. Just generally that the overall response of the Home Office is we don t believe what you re saying, despite objective evidence. [R9] There s that culture of disbelief even when dealing with such a traumatised community as the Somalis, where the objective evidence clearly shows that these incidences happen every day but no, every one of them is refused, every one. [R8] 123 Morgan, B. et al., Home Office Research Study 271, Country of origin information: a user and conten t evaluation, London: Home Office Research, Development and Statistics Directorate, September 2003, p Amnesty International, op. cit., p. 22. Author s emphasis. 125 UNHCR, Quality Initiative Report, Second Report to the Minister, op. cit., p

91 It was felt that such a culture was so pervasive that it quickly spread to new recruits whilst it also had an impact on the willingness of Home Office caseworkers to address the issues highlighted in the guidance or to attempt to interpret the Refugee Convention correctly. Some suggested that the ability to make fair decisions was tainted by the political atmosphere in the UK transmitted in political speeches, the media, that portrays all asylum seekers and immigrants as bogus. Respondents also pointed that such a culture continues to be a major factor undermining a due application of the Gender Guidance in addition. There was a common view that rather than looking at the gender issues the Home Office is looking for something to refuse on : Whether you take a gender orientated approach to the Refugee Convention isn t really an issue for the Home Office because they re not really interpreting the refugee convention at all anyway. They just refuse on credibility grounds. It just doesn t arise. [R2] I think they are just determined to refuse everybody. They may have this guidance but I think in practice they re just too determined to refuse people whatever the circumstances, bringing up the most pathetic little inconsistency. [R5] The Home Office decision makers aren t really interested in getting to the truth and properly considering things like the gender guidelines. I think they re interested in just refusing everything, because everything does get refused at that level, there s a real culture of disbelief within the Home Office. And of course if you ve got the more experienced people who are really kind of rotten and totally disbelieve everything around asylum and are so casehardened, then even the new people that go into that and you see that with presenting officers in court you know they go in and very soon they disbelieve everything. [R8] There is the Home Office culture of disbelief to contend with. You ve got bureaucratic obstacles and institutional obstacles. In a way you re guilty before you ve even put your case forward. [R11] I think that s more to do with the culture at the Home Office which is universal rather than specific to women s claims, but I think women end up being sometimes more the victim if you have got someone that is particularly vulnerable who might need more sensitivity. That s the same with children s cases. [R4] There were also suggestions that the Home Office decision-makers had preconceived ideas about asylum seekers and their motives, and in some cases held sexist and/or racist views, or applied cultural relativism, expecting women to accept abuses as it was part of their culture: all of which undermine a fair assessment of women s asylum claims. 91

92 They don't implement it because I think people who are hearing these cases, they themselves have some personal views, opinions and generalisations that they want to actually express in their decisions. Adjudicators and Home Office representatives come with this really negative view that this woman is only here because she's here for economic reasons, she is just claiming she is going to be persecuted but she's not because there' s X, Y, Z provisions in her country. I think the problem is there are a lot of assumptions being made about where these women come from and what's happening in their countries. I think one of the biggest issues [is that] these people don't want to blame the men that dictate and dominate those countries and set the rules, they do not want to challenge what they're doing to women and how they're persecuting women. [R12] The main obstacles [include] racist, xenophobic and sexist attitudes on the part of some employees and officials. [R15] I mean if you look at female genital mutilation how many [decision-makers] are really aware of the suffering of those women? In terms of in the context o f the lives that they live, the communities that they come from, the countries they come from and how the rights of these women are violated against their wishes, they're not interested in that because they think it's part of the culture and this happens to them so therefore the women should accept it as a rule. [R12] An example of a case where the client was not believed was that of a woman from Cameroon who had experienced forced marriage and rape, with a consequent pregnancy. The baby had been taken away from her. The Home Office refused her claim, describing her experiences in a completely different light in their refusal letter: And one comment they made which just stuck in my mind, it was so stupid honestly, it was you went and got yourself pregnant She was supposed to be married off to a man years her senior and then obviously raped then they used another expression, the baby was taken away from her and they said something like you dumped your child [R11] The client won her case at appeal. In its 2004 report, Amnesty International also noted that decision-makers were making assumptions about how people would behave in a certain situation and that such assumptions seemed to be based on caseworkers sensibilities Amnesty International, op. cit., p

93 RWRP comment The culture of disbelief at the Home Office contravenes the principle held in the Convention according to which each asylum claim should be considered on its individual merits. See also recommendations in previous section six. 93

94 section eight Women in the fast-track 8.1 Overview of the fast-track system The fast track was set up to deal quickly with asylum claims deemed to be straightforward and there are a number of criteria used to determine this, including nationality and other factors, such as the circumstances of the case, or the individual s particular needs. 127 People whose asylum claims are fast-tracked are detained in Immigration Removal Centres at Oakington, Harmondsworth and Yarl s Wood (women only). Applicants are interviewed and given an initial decision on their claim within a matter of days. They also have access to independent legal advice on site. Appeals are made from within the centres unless the case has been designated as an NSA case i.e. with no right of appeal from within the UK. 8.2 Fast-track and women s claims The fast-track is supposed to be for straightforward cases only. The document dealing with fast-track suitability issued in November 2004, which was current during the period of study of this research, noted: Any claim may be fast tracked where it appears after screening to be one that may be decided quickly, whatever the nationality of the claiman t, 128 subject to the qualifications set out below The following women s cases were specifically exempted: All female claims from Afghanistan and Pakistan Female FGM claims from Ghana, Kenya and Nigeria Chinese female claims based on the one-child policy with possible forced abortion / sterilisation 129 In addition, pregnant women at 24 weeks or above, unaccompanied minors, some age disputed cases and people with various health problems or disabilities were deemed 127 Information on the fast-track can be found on the Home Office IND website at See also ICAR (Information Centre on Asylum in the UK) at Home Office, IND, Fast Track Processes Suitability List, November 2004, on file. 129 Ibid. 94

95 unsuitable for the fast-track, as well as any case which does not appear to be one in which a quick decision can be made. 130 The Home Office Operation Enforcement Manual states that people with independent evidence of torture and those with serious medical conditions or the mentally ill should only be detained in very exceptional circumstances. 131 There is also an Operational Instruction Flexibility in the Fas t Track Process which deals with circumstances where the fast track timetable can be extended to ensure fairness within the system, for example in cases of illness, problems with representation or interpreting, needing more time pre- or post-interview or for other reasons. 132 Removal from the system is described as being appropriate if a fair decision cannot be reached in the time allowed, even after using flexibility. There is no mention of any issues relating to gender in this Instruction. However new guidance was issued in February Whilst it contains the same general requirements as previously, and also includes an exemption from the Detained Fast Track Process for claims where there is independent evidence of torture, the position has changed for women applicants. The women s cases that were specifically exempted are no longer mentioned. This means that women from Afghanistan and Pakistan, and those from Ghana, Kenya and Nigeria with claims of FGM and women from China with a claim based on the one-child policy, could all go through the fasttrack. The only reference to gender issues is that female claims from Ghana and Nigeria, unlike male claims, are not to be treated as Non-Suspensive Appeals (NSA) cases i.e. without the right of appeal in the UK. It appears therefore that it may be possible for a woman to be removed from the fasttrack system if she, or her representative, can argue that her claim cannot be considered fairly within its constraints, or if there are special circumstances. However, as the examples below show, this appears to be something that is achieved only with great difficulty and considerable tenacity on the part of the representative. In addition, as highlighted in section two Understanding of gender issues in the Refugee Convention, one outcome of the lack of knowledge and understanding of gender issues is that women with complex claims are inappropriately selected for, and kept within, the fast-track system. 130 Ibid. 131 See at: policy/policy_instructions.html. 132 Home Office, IND, Detained Fast Track Processes Operational Instruction: Flexibility in the fast track process, April 2005, at ent.pdf. 133 Home Office IND, Asylum Claimants Suitable for Detained Fast Track Process, Immigration Service Operational Instruction, February 2006, on file. 95

96 8.3 Problems for women in the fast-track The general difficulties of preparing a case for a client in this system were described as follows: Fast-track... almost impossible the only way that a client can be properly represented is if you get them out of fast-track. [R8] One respondent described as ridiculous the fact that a female client was selected for the fast-track when her country s human rights record and the high prevalence of rape is widely known. Staff at Yarl s Wood Immigration Detention Centre, for female asylum claimants in the fast-track system, were criticised for being ignorant of gender issues and intent only on putting clients at whatever cost through a system where such issues are not taken into account there was no evidence of proper screening; clients were allocated solely on grounds of nationality. In one case, the client s representative asked Yarl s Wood staff several times why her client had been sent there despite being vulnerable, but never received an explanation. She felt that caseworkers at Yarl s Wood absolutely ignore the Guidance even when it is drawn to their attention. Another example of someone who was unsuitable for the fast-track system was a woman from Pakistan, a victim of rape and torture. A bail application and an application for Judicial Review of the decision to fast-track were both refused, despite the client being very ill, having threatened suicide, and having family members who were prepared to stand as sureties. We were so concerned immediately that she shouldn t be in there before she d even had her asylum interview, because we could just tell that it wasn t going to be conducted in a fair manner because she was just so distraught at being in detention. She just wasn t suitable for being in there. She couldn't think straight, she was obsessing about the fact that she was in detention rather than trying to articulate what had happened to her in Pakistan, and she was very ill as well we felt that she was a suicide risk, so we immediately drew their attention to these [issues], but no response. [R5] The interviewing officer also disregarded medical evidence, and the client said that she found it difficult to approach doctors at the centre. Eventually she was removed from the fast-track at her asylum appeal, only after having been admitted to hospital and a week and a half after Yarl s Wood had been informed she was a suicide risk. As noted below, the interviewing officer in the case was clearly ignorant about the situation of women in Pakistan and did not believe the client s story of domestic violence. The way in which applicants were treated once they were in the fast-track, with a tendency for cases not to be sufficiently differentiated, was seen as a particular problem: 96

97 When it becomes apparent that a client [is] clearly showing signs of distress in detention, and you have now found out enough information about their claim, maybe you have an abandoned interview maybe they ve been subjected to some pretty horrendous things that should be the responsibility of the Home Office to review whether that person is then still suitable for detention, whereas they seem to be just ploughing ahead with it in every case, regardless, they jus t say We ve got a fast-track system, so you re in it That s the fast-track, it s an assumption that if you are going through the fast-track, you ve got an unfounded claim. [R4] Legal Action for Women noted many problems in its recent report on Yarls Wood: Our findings show that most women s cases are rejected without the full facts, including rape and other torture, having been put before the authorities, and that most women couldn t get adequate or any legal representation even at appeal hearings. Expert reports which are essential in assessing a woman s account are not funded or impossible to get because of shortage of time. 134 As noted previously, UNHCR expressed its concern that the fast-track procedure a t Yarl s Wood is not fully gender-sensitive. 135 What the Guidance says There is no specific reference to the fast-track in the Gender Guidance. However it does expect general awareness of gender issues which should arguably include the decision whether to process women s claims via the fast-track and the treatment of women once in the fast-track system. The Guidance does state: Each case should be considered on its own merits against country information. 136 Arguably the whole fast-track process automatically precludes this as claimants are placed in the system on the sole basis of nationality, or because it is thought their case can be decided quickly, on the basis of initial screening only. Furthermore the expedited process means there is not enough time allowed to explore fully the background to a claimant s case. Only one example of good practice was provided in this respect, when a caseworker at Yarl s Wood had been very cooperative when extra time was needed 134 Legal Action for Women, Black Women s Rape Action Project, Women Against Rape, op. cit., p UNHCR, Quality Initiative Project, Second Report to the Minister, p Home Office Gender Guidance, op. cit., Section 3, Gender and Persecution. 97

98 with a client. It was thought that the fast-track system was not suitable for women s cases, which are deemed generally to be more complex: 137 [I]t s hard to win on a simply gender-based claim they re not as straightforward as someone who simply claims that he has been harassed and targeted on account of his political activities. [R7] 8.4 Home Office Response Home Office senior staff were asked about the provision of training on gender issues at Yarl s Wood and other centres housing female detainees for this research. Their response was: New caseworkers at Yarl s Wood, Oakington and Harmondsworth receive the same initial training [which includes consideration of gender issues] as caseworkers who work in the mainstream process. In fact, many experienced, highly able caseworkers from Croydon and Liverpool spend temporary periods, on a rota basis, at the Detained Fast Track Centres. In addition, all Home Office staff (i.e. not just asylum caseworkers), including those at Yarls Wood and other detention centres, undergo compulsory diversity training which covers gender issues. However, we recognise that gender training is particularly important for caseworkers at Yarl s Wood who currently deal only with female claimants. That is why the attention of all caseworkers working there is drawn to the Gender API and the helpful Training Pack put together by the Refugee Women s Legal Group. Each caseworker is sent a personal reminding them of the importance of familiarising themselves with the guidance available on gender. In addition, the Senior Caseworkers at Yarl s Wood have planned a series of workshops to discuss a range of issues with the caseworkers there, including one on gender that will be held at the end of January or the beginning of February [2006]. 138 We are generally satisfied that caseworkers at Yarl s Wood have a good understanding of gende r issues and the relevan t case law on gender-related persecution, but are not complacen t about this issue, which is kept under review. However the evidence gathered above does not seem to support the Home Office view and raises the question of the assessment of the quality of caseworkers decisions at Yarl s Wood despite assurance from the Home Office that a Senior Executive Officer will always check decision letters completed by Higher Executive Office (HEO) caseworkers 137 See Ceneda, S., op. cit., for more information about women s asylum claims. 138 RWRP has been invited to attend the workshop on gender issues at Yarl s Wood but as per 1 March 2006, it had not taken place. 98

99 before they are served 139 (see also below sections nine quality of decision making and ten management failures ). RWRP recommendations Fast-track Women should be screened adequately by gender-trained caseworkers so that those who have suffered gender-specific or gender-related persecution are not put into the fast-track. According to current guidance those deemed unsuitable for fast-track include any case which does not appear to be one in which a quick decision can be made. This guidance should be expanded to include a non-exhaustive list of types of women s cases which should be excluded. The Home Office should review women s suitability for the fast-track systematically (on a weekly basis or more often if problems arise) so that if issues come up they can be swiftly removed from the system. 139 Correspondence dated 26 January 2006, on file. 99

100 section nine Quality of decision-making Like the culture of disbelief, it is inevitable that the quality of decision-making generally will affect the quality of decisions related to gender-related or gender-specific persecution. The decision-making process was described as a juggernaut of speed, which contributes to the appalling and atrocious standard of decisions. Immigration officers were described as all ignorant of guidelines and procedures, and it was reported that caseworkers do not read clients detailed statements properly and make mistakes in refusal letters. This was seen as partly due to the low educational qualifications required for these staff. 140 Inconsistency in decision-making was also noted with cases being refused when an almost identical case was granted. When it comes to caseworkers [decisions] it is absolutely shocking. How many times I had actually had the time to put a really detailed statement and they don t read it. They get the actual things covered in the statement wrong in the refusal letter, it s embarrassing. Not to mention the spelling mistakes and the grammar mistakes that you find in the refusal letters I think they have no idea. You do come across really decent immigration officers who know what they are doing but not many of them. And this is the big problem with the system, the initial decision-making for asylum generally. [R3] They continue to make the same appalling points in their decisions which are made by low level administrators on a cut and past e job in their refusal letter irrespective of the guidelines, and I don t think that they really consider them in any way at all to be honest [R8] You can t trust them to do anything They say they take representation into account, it doesn t mean they have to agree with the representations, it has to mean they address them. They don t. It s general [not just women s cases] [R10] 140 The Home Office announced it increased entry requirements for Home Office caseworkers recruited externally to A levels after UNHCR published the findings and recommendations of its Quality Initiative Project in autumn See Tony McNulty MP, Minister of State, Home Office, letter to UNHCR dated 24 October

101 Improving the quality of initial decisions would save money: What they do is waste the opportunities they have in investigating the case through mismanagement, through poor interviewing techniques, just refusing everything and then absolutely everything gets to appeal and then they talk about the costs spent in the asylum system there s no grown up thinking really in the whole asylum process. It s about percentages.. showing that these people are liars to get votes. [R8] There were mixed opinions as to whether decision-making had improved or got worse over the last couple of years. It was thought that even if a case fitted into all the Convention grounds, it would succeed only if the facts were really unusual. I think so long as there is a lack of understanding of what persecution is, and a lack of understanding of what a wellfounded fear is, claims of the most vulnerable will always be poorly determined. The super-articulate poet who flies in with his volume of poetry in one hand and his coherent claim in the other has always been well treated in this country, and always will be. But the vulnerable, the incoherent, you need a level of caseworking to fil l that gap, and that is missing here. [R17] Again, these comments are backed up by those received by the South London Citizen s Enquiry who also investigated the quality of decision-making: Themes that emerged are: poor questioning, inappropriate reasoning and speculation, poor country-of-origin knowledge, poor application of human rights law, inadequate knowledge on the part of interviewers. 141 Mixed comments were received on the standard of Home Office Presenting Officers (HOPOs), who were described as being sometimes sympathetic and helpful, but on other hand plenty of bad ones. Examples included: I think the standard, or the approach of the younger HOPOs is significantly better, in that they seem to be more aware of everything is not black and white. Sometimes you do get black and white, and sometimes you get people who can be quite aggressive. But I would say on the whole the more recent recruitments have shown that the HOPOs are a bit more understanding. And again maybe they re seeing that it s not really meant to be adversarial it s not them and us. [R14] HOPOs are generall y unhelpful about any case, let alone women s cases they choose not to use their discretion The fact is most seem to have a blanket approach. [R4] 141 Back, L., et. all, op. cit., p

102 As seen before, UNHCR comes to a similar conclusion in its 2 nd Quality Initiative Report to the Minister. 142 Recommendations covering matters already raised with the Home Office, and their responses Entry requirements and accreditation of caseworkers Entry requirements for caseworkers should be raised to degree level: the Home Office is not in agreement with this requirement, noting that external applicants now need 2 A levels, and sees the forthcoming NAM (New Asylum Model) accreditation scheme as dealing with this issue. All Home Office caseworkers should be accredited to LSC standards 1 & 2: the Home Office agrees with accreditation but the system is as yet undecided as under development under NAM. RWRP recommendations Accreditation of caseworkers Gender awareness and an understanding of the Gender Guidance should be an essential element of any future accreditation system introduced for Home Office asylum caseworkers. 142 UNHCR, Quality Initiative Report, Second Report to the Minister, op. cit., p

103 103

104 section ten Management failures 10.1 Overview of problems identified There was a widely held view amongst respondents that obstacles to the implementation of the gender guidelines were linked to management issues. One of these was that the Home Office staff were under pressure to meet targets and that this took precedence in decision-making over quality and fair decisions. There is quite a lot of pressure on Home Office workers to turn cases around, and my understanding is that they don t look at country information when they re making a decision. They will the first time perhaps they reach a decision on a particul ar country, but once they ve done that they won t go back and look at it again. 143 [R2] Home Office caseworkers work to targets for numbers of refusals or grants to be given. Any guidance becomes irrelevant - caseworkers simply attack credibility and refuse the case so that they comply with their targets. [R9] It's about controlling numbers of people in this country, I don't know much of that influence is via the Government, there must be some impact on the decision-making process. [R12] It s about percentages, showing that these people are liars for their figures to get votes. [R8] Another management issue cited was the supervisors own lack of knowledge of the guidance or the API. Also cited was the lack of monitoring and/or evaluation system to measure its use in case processing and decision-making (leaving it to individual s own will to implement it); but also the lack of mechanism to ensure staff were adequately trained or that training was followed-up. Significantly there was a commonly perceived view that gender training was not part of the initial induction training for caseworkers, and thus not systematic, with absent staff 143 This respondent specified that his opinion on the issue was based on his involvement with Home Office stakeholder group meetings. 104

105 not necessarily undergoing it or not for a long time. This view implies that management deficiencies should be corrected. Lack of appropriate, adequate and continuous training on gender, violence against women & human rights issues and the Gender Guidance itself. [R15] It s partly a training issue but I m reasonably sure that the Home Office initial training for [Home Office] caseworkers is actually quite good. It s just that there s not that much follow up, and they re not really instructed to refer back to their training materials or to the APIs on a sort of regular, day to day basis. And I m not sure that that s something that the supervisors, the senior caseworkers, will be looking at. [R2] If they re not looking at country information then there s very little chance that they ll be taking the initiative to remind themselves of what was in that particular API or in fact any other API. I m sure it s covered in the initial training for Home Office caseworkers, but I doubt there s very much follow up and I doubt there s very much encouragement or forcing of people to actually look at those things once they ve started their case work careers. [R2] Lack of management monitoring the enforcement of the Home Office Gender Guidance by its employees and officials. [R15] The reality is that whether guidelines provided to caseworkers or provided to supervisors of caseworkers ever make any difference, it depends on those individuals working within the system actually ensuring that they re implemented. [R9] These views tally with the UNHCR s recommendations that mechanisms be in place for systematic feedback sessions on assessments of caseworkers as well as systematic reviews of all out-going decisions. 144 There were also a number of comments referring to what was described as a lack of commitment or interest of the Home Office staff in their job, and lack of political will by the Home Office in general to ensure application of the Gender Guidance, again impeding their willingness to investigate gender issues adequately. Specifically it was thought that the Home Office caseworkers lacked the curiosity and initiative necessary to test the facts presented to them, search for gaps in applicant s knowledge and simply download APIs. 144 See UNHCR, Quality Initiative Report, Second Report to the Minister, op. cit., p. 34, recommendations 51 and

106 Very unlikely that procedure of downloading API and approaching case of vulnerable woman in a different way wil l be followed ; going to be a shortcut [R1] API is clear but requires someone interested and inquisitive to apply it. [R17] 10.2 Recommendations concerning management issues Some respondents pointed to the fact that existing guidelines (Home Office/UNHCR) needed to be used first 145 and that monitoring systems at management levels be put in place or improved to ensure they are being used. They indicated that there was an issue with current management procedures in terms of application of the Home Office s own instructions. According to some, there is a need to improve the way APIs are being disseminated to Home Office caseworkers, how they are being used with the introduction of sanctions if necessary - but also how supervisors assess their use: Follow their own guidelines. [R5] You couldn't just introduce a requirement that you must look at APIs for example on gender every time you decide an asylum case. But supervisors [could] be more conscious of those kinds o f issues and point their staff back to specific APIs on a more regular basis and say, I see you ve refused this claim on credibility grounds, late disclosure. Make sure that you ve checked the APIs before you go ahead and do that. Ongoing training, follow-up stuff, interest of the supervisors in those kind o f issues when reviewing and doing internal sampling of cases. [R2] There were also submissions that the Home Office should have a holistic approach: gender awareness should be taken into consideration throughout the whole asylum process, right from initial recruitment process of Home Office caseworkers, to assessment and decision-making. The latter should include a knowledge and understanding of Court decisions on women s cases. Part of the recruitment process has to identify you know a section where you test them on gender sensitivity really and awareness of women's issues. Unless you do that I really do not believe that 145 A view also shared by South London Citizens who conducted an 18 month enquiry into services at Lunar House, South London. Subsequently the organisation called for the promotion of gender specific services and for IND Gender Guidelines and IAA Gender Guidelines [to] be implemented as a matter of urgency. See: Back, L., et. all, op. cit., p In its second report to Minister, UNHCR talks of a missing link between the development of APIs and their application, or even reference to, by caseworkers. Feedback sessions reveal that awareness of the content of APIs amongst caseworkesr and SCWs is limited. This should be of serious concern. UNHCR, Quality Initiative Project, op. cit., p

107 people can sympathetically or cl early identify, or address what the issues are. [R12] Better monitoring of Courts decisions on cases involving vulnerable women. [R16] [The Home Office should] make sure they actually apply to all, to the entire process right from screening to adjudication [R13] Other recommendations were that Home Office caseworkers be accredited the same way legal representatives need to be and, in line with obstacles identified, that targets should be removed as the existence of targets runs counter to the idea of a fair and just asylum determination system. They should be accredited because it wil l give them a much better understanding of the whole system, they would possibly feel a little bit more committed because they re better trained Under the new system 147 there s going to be one Home Office person who s responsible throughout, if they were accredited they woul d be able to see how people fit within the system and they could make proper decisions, which would save millions and millions. [R8] In the context of its New Asylum Model (NAM), 148 the Home Office is currently looking at different models for accreditation, including accreditation to Law Society Standards 149 (rather than introducing minimum entry requirements to the level proposed by UNHCR, i.e. university degree or equivalent). The Home Office also told RWRP that both NAM and caseworkers will be accredited. 147 This refers to NAM the New Asylum Model. The Home Office states that the central theme of NAM is to have a case owner responsible for the case from the point of claim to the point of integration or removal. See Tony McNulty MP, Minister of State, letter (to UNHCR) dated 24 October For more on NAM, see Home Office, The New Asylum Model: Swifter Decisions - Faster Removals, 18 January 2006 at Correspondence dated 26 January 2006, on file. 107

108 RWRP recommendations A member of the Senior Management Team in the Immigration and Nationality Directorate should take responsibility and be accountable for gender issues in relation to asylum claims. The Home Office Policy Adviser with responsibility for gender issues should have no additional responsibilities (the current post holder is responsible for data protection and freedom of information as well as gender). When deciding to adopt new procedures for processing asylum applications, an assessment should be made by the Home Office as to how this will impact on the implementation of the Gender Guidance. 108

109 109

110 section eleven Additional issues unrelated to Home Office practice In addition to shortcomings related to Home Office staff and resources, other obstacles were identified in terms of a fair initial decision on a woman s claim: in particular, poor legal advisers and the legal aid cuts introduced in Poor quality advisers were cited as an obstacle as they are less likely to investigate gender issues in a claim; also a lack of awareness amongst legal representatives and appeal adjudicators: Clearly there have been changes because there s been accreditation. There has been some increase of knowledge but I think there are many unscrupulous advisors who do nothing [and] won t really look into this. I don t know that the gender guidelines are widely known through both sides. [R8] General knowledge of the guidelines is very poor. Even among solicitors actually, not many know what status they carry or would routinely refer to them. [R13] Another view was that in general the court system was biased: If the court system [were] totally fair, they would listen to arguments around gender guidelines more. [R8] Also cited were constraints related to the legal aid regime, which came into force in April As mentioned above, the shortage of information on women s rights means that legal representatives require more time to obtain this detailed information. However with the legal aid cuts 150 representatives who rely on public funds have even less time to obtain medical and country information evidence to support what are often complex women s claims. 151 Only the most dedicated will ensure that they have investigated all potential sources to back up their client s claim. You have to do work outside the publicly funded otherwise you can t, you re never going to get anywhere. [R11] 150 Currently legal aid will only cover up to five hours of advice on preparation of initial applications and up to 10 hours controlled legal representation (CLR) for advice on, preparation of and representation at appeal hearings. See BID and Asylum Aid, op. cit., p Ibid., p

111 This contract hours and legal aid thing actually restricts the amount of time that you can spend with the client. Sometimes it would take three, four sessions for me to get really substantial evidence of what they d been through. How many people would do that? Many organisations [have] limited resources. In some ways [it] impacts on the decision making process. And representatives who are not competent that s another issue for these women because a lot of people in the community actually refer women to so called lawyers who will help women get their stay in the UK without really understanding the issues. [R12] Insufficient public funds to obtain proper representation. This makes solicitors rushing up women while they are giving their statement to submit to the Home Office, and/or the solicitors attitude makes women less willing to disclose details of the violence suffered. Insufficient public funds also means difficulties to get interpreters, and/or paid for expert testimony - either for a country report, or for a psychological examination. [R15] [The client] has serious mental health problems we applied to the LSC to attend her Home Office interview and they refused, so it was completely inconsistent decision-making on behalf of the LSC, and I think they were very obstructive. because I d had this previous very bad experience with the Home Office interpreter we really wanted to attend but they wouldn t give us the funding and now they won t give us the funding to listen to the interview tapes. [R5] In addition, it was pointed out that the limits on time for a representative to find out a client s story, due to legal aid cuts, add to the difficulties of getting full disclosure: 152 When you have particularly sensitive cases, [it] causes massive problems. They don t seem to understand that it takes longer to take statements from people who are traumatised like a lot of these women are. It takes so long to read back this statement because she keeps crying, you know i t s a very sensitive thing, we have to have breaks, we have to stop, you can t pressurise someone. We have to do it over say several appointments. You can t force someone to sit there all day long, but they just continually try and cut the funding saying you re asking for too much I think it has a big effect on women s cases. [R5]. 152 See Asylum Aid (2005) Justice Denied, for a full account of problems caused by cuts in legal aid. 111

112 RWRP recommendations To the Legal Services Commission (LSC), the Office of the Immigration Services Commissioner (OISC), and Government: The Legal Services Commission (LSC) and the Office of the Immigration Services Commissioner (OISC) should make greater efforts to publicise the Gender Guidance to their stakeholders, for example through their websites and newsletters 153. Both LSC and OISC accreditation/regulation requirements should include an understanding of gender issues and an awareness of the Gender Guidance. The OISC should offer training on gender issues to all levels of regulated advisers. The LSC should ensure that gender issues are taken fully into account in respect of all its immigration functions, including funding and auditing. Training for Immigration Judges should include understanding of the IAA Asylum Gender Guidelines. The Government should bring forward legislation guaranteeing all asylum applicants and appellants access to quality assured specialist legal advice and representation. RWRP reiterates its recommendation that consideration be given to the setting up of an independent documentation centre for country specific reports with special sections on women. Such a centre should be accessible to all involved in the asylum process and be able to respond to specific research requests on gender issues by decision-makers (as is the case in Canada) and legal representatives. 153 See for example Legal Services Commission, Immigration Services Team Newsletter, 20 June

113 113

114 Conclusion This study aimed to provide a synopsis of opinions on the implementation of the Gender Guidance by Home Office caseworkers and decision-makers when processing and deciding women s asylum claims in the UK. Regrettably, nearly two years after its publication, only a few examples of the Gender Guidance being followed were mentioned, mostly in relation to interviewing procedures. At best, it was noted that sometimes caseworkers were helpful, but it was a matter of individuals, rather than the result of an organisation-wide policy and practice being rigorously followed. Contributors also recognised that although they may not have heard of any cases of the Guidance being followed, it might have happened without them being aware. However the accounts and evidence gathered for this study point overwhelmingly to the conclusion that the Home Office Gender Guidance is far from being systematically implemented when processing and assessing women s asylum claims in the UK or dealing with women asylum seekers. Whilst by no means claiming to be representative of all practitioners in this field, the fact that many of these views concur with that of UNHCR as the agency continues its Quality Initiative Project can only strengthen their validity. The Quality Initiative Project has been crucial in understanding the shortcomings of the current asylum determination system and the Home Office should be praised for having collaborated with UNHCR with the aim of improving the quality of its refugee status determination process. The Project highlights issues raised on numerous occasions previously. But its investigation is based on a review of internal procedures and working practices at the Home Office, which few external stakeholders could claim to have the authority to comment on, mainly due to lack of direct access to such information. Thus, the UNHCR s findings and recommendations most of which the Home Office says it has in principle or practice accepted - constitute a benchmark for future evaluation of decisionmaking on asylum claims. This includes women s asylum claims or any asylum claims raising gender issues which, it is hoped, will greatly benefit from the improvements suggested by UNHCR. We are not arguing that all women presenting an asylum claim should be granted refugee status or international protection. However, as our research in 2003 showed and this research now reiterates, there cannot be a fair determination of women s asylum claims in the UK without an understanding of gender issues, and without adopting appropriate measures as rightly outlined in the Gender Guidance. Until then, the impact of the Guidance not being followed will continue to include unnecessary distress caused to claimants, late or lack of disclosure leading to poor quality decision-making, poor quality decision-making overall, and when women s experiences are not recognised, bias against women s claims. 114

115 All of this leads to recourse to appeal more often than necessary, and at the cost of taxpayers money. It is now time for the Home Office to demonstrate that it is not just paying lip service to the government s commitment to gender issues and to live up to its implicit commitment with the publication of the Gender Guidance two years ago - that gender issues be systematically taken into consideration when assessing women s claims or asylum claims with gender issues at stake. 115

116 Recommendations On the basis of the evidence collected for this report, drawn from both the experiences described by the people we interviewed and a review of some Asylum Aid s cases, in addition to supplementary secondary evidence, we urge the government to implement the following recommendations. a. Recommendations covering matters already raised with the Home Office, and their responses RWRP is aware that other agencies, notably UNHCR, have recently raised their suggestions on improving decision-making with the Home Office, to which various responses have been made. These responses partly address some of our own concerns and recommendations. 154 We note some of these here, with a brief summary of Home Office comments where appropriate, and would urge that any action agreed is implemented as soon as possible. We will be following any progress with interest. 1. Use and content of Gender Guidance The Home Office should institute monitoring of the use of Gender Guidance in detained fast-track: according to the Home Office, a Senior Officer checks all decisions before they are served, but we are not aware whether the use of Gender Guidance is systematically checked as part of this process. 2. Training and education of decision-makers Initial training, content and duration Training should be extended: according to the Home Office, the initial Asylum Casework Training course has been extended, and it already includes 3.5 days training on sensitive interviewing (also to be extended) Training should include gender issues: the Home Office notes that gender issues including gender in the Refugee Convention are already covered in the initial course. Further training on gender issues for staff at Yarl s Wood: according to the Home Office, this is to take place in early Credibility issues: the Home Office has noted that it is setting up training on assessing credibility. Training on Country of Origin issues: the Home Office has commented that it is interested in the idea of country experts coming in for workshops. 154 The Home Office comments here are summarised from a written response by Tony McNulty MP, Minister of State, Home Office, letter (to UNHCR) dated of 24 October 2005 in response to UNHCR s Quality Initiative Project, Second Report to the Minister, op. cit. 116

117 General cultural awareness and anti-racism: all Home Office staff already undergo compulsory diversity training including on gender issues. Ongoing training and assessment The Home Office should institute a management mechanism to follow-up on training needs both generally and on gender issues: according to the Home Office, a training programme is in place; senior caseworkers also cascade down training to other staff and decisions are routinely monitored; refresher training is now provided. Entry requirements and accreditation of caseworkers Entry requirements for caseworkers should be raised to degree level: the Home Office is not in agreement with this requirement, noting that external applicants now need 2 A levels, and sees the forthcoming NAM (New Asylum Model) accreditation scheme as dealing with this issue. All Home Office caseworkers should be accredited to LSC standards 1 & 2: the Home Office agrees with accreditation but the system is as yet undecided as under development under NAM. 3. Country of Origin Information The Home Office should improve the quality of Country of Origin Information available to caseworkers: according to the Home Office, action is being taken on this. 4. Procedural issues There should be automatic provision of female interviewers and interpreters for women and specialist and gender-appropriate interviewers and interpreters for women and men who report sexual abuse and other forms of torture: the Home Office note that they agree in principle with this provision but that it can be difficult to find female interpreters. Yarl s Wood caseworkers and interpreters should be all female; other detention centres holding women to have a high ratio of female staff: again, the Home Office says that this is under consideration but it can be difficult to find female interpreters. The Home Office should remove daily decision targets for caseworkers: the Home Office notes that case production targets will be kept to reasonable levels. All decisions should be reviewed before issue: the Home Office notes that decisions are already reviewed on sampling basis and it does not agree to review all decisions Home Office representative, October RWRP correspondence (on file): all asylum caseworkers regularly have their decision letters and asylum interviews sampled internally by senior caseworkers and externally by Treasury Solicitors and UNHCR. Home Office Presenting Officers also provide feedback about cases at the appeal stage. If weaknesses in decision letters o r interviewing technique are identified, senior 117

118 b. RWRP s recommendations on improving the implementation of Gender Guidance 1. Use and content of Gender Guidance The Home Office should ensure that the use of Gender Guidance by caseworkers is compulsory for all women s or gender-related cases their use should be checked as part of existing practice of sampling and checking a proportion of decisions by a senior caseworker. The Home Office should improve the content of the current Gender Guidance to the standard of the IAA/RWLG/UNHCR gender guidelines. UNHCR and RWLG should be consulted on this revision. The revised version should be brought to the attention of stakeholders through the Home Office usual communication networks. The Home Office should mainstream gender issues throughout all APIs as well as having separate Gender Guidance, and in doing this consult with agencies such as UNHCR and NGOs to ensure quality. The Home Office should ensure that it is implementing its Guidance adequately in the UK in order to strengthen the credibility of its promotion of Gender Guidance to European Union member states. 156 caseworkers will draw the attention of caseworkers to these and ask for the necessary corrections to be made or remedial action taken. 156 Gender issues in assessing asylum claims: spreading good practice across the European Union: Briefing by Asylum Aid tabled by the UK Government at the Intergovernmental Committee Asylum Working Group the Refugee Women s Resource Project at meeting in Geneva on 15/16 November 2005, available at 118

119 2. Training and education of decision-makers Initial training The Home Office should extend further the length of its initial training period, as recommended by the National Audit Office, to accommodate in-depth comprehensive training on the understanding of gender issues in asylum claims, in addition to training in refugee and human rights law and country information provided by external experts. Initial training should include discussion of the impact of the negative portrayal of asylum seekers by politicians and the media which can affect caseworkers views; NGOs working with asylum seekers and refugees should be invited to speak. Interviewing skills training should include how to interview people who have suffered torture and trauma, including women survivors of sexual violence, to enhance disclosure. Ongoing training and assessment The Home Office should introduce a system of annual assessment of caseworkers knowledge and awareness of the Refugee Convention and its application, including gender dimensions. Home Office caseworkers should be regularly updated on UK case law as well as on asylum case law in other countries. The Home Office should hold annual workshops with expert speakers on issues affecting many women asylum seekers including domestic violence, FGM, trafficking, and other forms of harm. The programme should be developed in consultation with relevant women s groups and NGO and attendance should be compulsory. The Home Office should regularly invite external speakers to speak specifically on women s issues and human rights issues in countries of origin: at least, experts from each of top 20 refugee-producing countries every year on a rolling programme; attendance by caseworkers and senior caseworkers should be compulsory. Accreditation of caseworkers Gender awareness and an understanding of the Gender Guidance should be an essential element of any future accreditation system introduced for Home Office asylum caseworkers. 3. Country of Origin Information As the Home Office Gender Guidance regularly refers to CIPU or COI reports, the Home Office should ensure that these reports include thorough information on women s rights and position in society, as described in the UNHCR guidelines. This information should be mainstreamed throughout reports e.g. in all sections such as freedom of expression, freedom of movement, detention etc, as well as an additional section for women s issues not otherwise covered 4. Procedural issues 119

120 General All women arriving as dependents should be informed that they have a right to make a separate claim and to be interviewed separately. Women should always be interviewed without family members / friends present. Interviews should be automatically postponed if no childcare provision can be found. All out-going decisions should be subjected to independent scrutiny to ensure gender issues have been appropriately dealt with. Fast-track Women should be screened adequately by gender-trained caseworkers so that those who have suffered gender-specific or gender-related persecution are not put into the fast-track. According to current guidance those deemed unsuitable for fast-track include any case which does not appear to be one in which a quick decision can be made. This guidance should be expanded to include a non-exhaustive list of types of women s cases which should be excluded. The Home Office should review women s suitability for the fast-track systematically (on a weekly basis or more often if problems arise) so that if issues come up they can be swiftly removed from the system. 5. Wider policy issues A member of the Senior Management Team in the Immigration and Nationality Directorate should take responsibility and be accountable for gender issues in relation to asylum claims. The Home Office Policy Adviser with responsibility for gender issues should have no additional responsibilities (the current post holder is responsible for data protection and freedom of information as well as gender). When deciding to adopt new procedures for processing asylum applications, an assessment should be made by the Home Office as to how this will impact on the implementation of the Gender Guidance. 120

121 c. RWRP/Asylum Aid recommendations to other parties To the Legal Services Commission (LSC), the Office of the Immigration Services Commissioner (OISC), and Government: The Legal Services Commission (LSC) and the Office of the Immigration Services Commissioner (OISC) should make greater efforts to publicise the Gender Guidance to their stakeholders, for example through their websites and newsletters 157. Both LSC and OISC accreditation/regulation requirements should include an understanding of gender issues and an awareness of the Gender Guidance. The OISC should offer training on gender issues to all levels of regulated advisers. The LSC should ensure that gender issues are taken fully into account in respect of all its immigration functions, including funding and auditing. Training for Immigration Judges should include understanding of the IAA Asylum Gender Guidelines. The Government should bring forward legislation guaranteeing all asylum applicants and appellants access to quality assured specialist legal advice and representation. RWRP reiterates its recommendation that consideration be given to the setting up of an independent documentation centre for country specific reports with special sections on women. Such a centre should be accessible to all involved in the asylum process and be able to respond to specific research requests on gender issues by decision-makers (as is the case in Canada) and legal representatives. 157 see for example Immigration Services Team Newsletter, Legal Services Commission, 20 June

122 appendix one questionnaires and response from the Home Office 1. Questionnaire for professionals working in the field of asylum determination (Introduction: explain the purpose of the research and confidentiality issues). 1. What is your role in the asylum determination process? 2. How long have you been working in this field? 3. How long have you been aware of the Home Office Gender Guidance? 4. How familiar are you with the Guidance? 5. What is your opinion of the quality or content of the Guidance itself? 6. In the last 12 months, have you heard about or experienced any problems concerning Home Office decision-making on women s asylum claims? For instance: female interviewer/interpreter not respected, request for postponing interview to be able to find supportive evidence rejected, gender issues in the claim overlooked? Can you provide examples? 7. Can you describe any examples that you have come across where the HO Gender Guidance or other gender guidelines were applied correctly? 8. Do you think that the introduction of the Home Office Gender Guidance has had any impact on the overall quality of initial decisions on women s asylum claims? If so, please describe. 9. Do you think the Guidance has had any impact on the outcome of women s claims at appeal or tribunal level? If so, please describe. 10. What are, in your opinion and if any, the obstacles to the application of the Home Office Gender Guidance? 11. What other problems, if any, do you think there are with decision-making on women s claims? 12. Do you have any recommendations on how to improve the implementation of the Gender Guidance or how to improve decision-making on women s claims in general? 13. Do you know of anyone else you think we should interview for this research? 2. Questionnaire to the Home Office and response received Answers to RWRP/Asylum Aid Questionnaire on Implementation of the API on Gender Issues in the Asylum Claim (letter dated 26 January 2006) 122

123 Section 1 1. Since the adoption of Gender Guidance in the Asylum instructions in March 2004, could you describe the efforts made by the Home Office to ensure due awareness and application amongst caseworkers making decisions on asylum claims? See 1a and 1b below 1a. (Unless covered by question 1) Could you tell us of any internal training on gender issues organised by the HO since the adoption of the Gender guidance? Following publication of the Asylum Policy Instruction (API), Gender Issues in the Asylum Claim, in March 2004, the Immigration and Nationality Directorate (IND) held training seminars for caseworkers and senior caseworkers in Croydon and Liverpool in January (Croydon and Liverpool are the main centres where asylum applications are processed). The training seminars were led by representatives of the Refugee Women s Legal Group (RWLG), who had worked closely with IND in the production of the API. 1b. (unless covered and if applicable) could you tell us who benefited from an internal training on Gender Guidance at the HO and how it was further cascaded down to other HO caseworkers/decision-makers on asylum issues? There were four training seminars altogether two in Croydon and two in Liverpool. Each seminar was attended by twenty caseworkers, so 80 caseworkers attended altogether. The seminars were planned so that there would be an even mix of a caseworkers and senior caseworkers at each seminar. This allowed senior caseworkers to cascade information to caseworkers who had not attended the seminars. 1c. Could you elaborate on the training provided by the Refugee Women s Legal Group (RWLG) in January 2005 (unless covered by question 1)? Yes, I will send the RWLG training pack separately, as I do not have an electronic copy. 1d. Could you tell us who benefited from the RWLG training in January 2005 at the HO (Unless covered by question 1 & 2b)? See 1b above 1e. Could you tell us how/if the RWLG training has been cascaded down to other staff dealing with asylum at the HO (Unless covered by question 1, 2b & 2c)? See 1a and 1b above. In addition, all asylum caseworkers regularly have their decision letters and asylum interviews sampled internally by senior caseworkers and externally by Treasury Solicitors and UNHCR. Home Office Presenting Officers also provide feedback about cases at the appeal stage. If weaknesses in decision letters or interviewing technique are identified, senior caseworkers will draw the attention of caseworkers to these and ask for the necessary corrections to be made or remedial action taken. 1f. Could you tell us what are the training provisions at the HO to ensure that all newly recruited staff benefit from such a training (unless covered)? 123

124 IND trainers attended the gender seminars in January 2005 and assessing gender issues is now an integral part of the initial asylum casework training. Gender issues are discussed throughout the course in the context of the consideration of the various aspects of the claim. For example, in the section of the course which assesses reasonableness of internal relocation for a particular applicant, gender will be a key consideration for trainees. Similarly, when trainees are thinking about the kind of treatment which is likely to constitute persecution as it relates to and affects the individual, gender will be a major part of that consideration. There is additional emphasis when the course examines the 1951 Convention reasons and how these should be interpreted in relation to women s claims. 1g. Generally speaking could you explain how are training needs reviewed at the HO, including training on Gender guidance? See 1(e) above. In addition, as part of the Quality Initiative Project, the UNHCR has been working closely with IND by monitoring the quality of initial decisions. The UNHCR has already published two reports and IND has implemented a number of its recommendations, including improving the quality of country information on which asylum decisions are based, extending induction training programmes and introducing refresher training for all caseworkers in credibility issues and human rights. 1.h What mechanism is currently in place to monitor internally the application of HO gender guidance in the APIs in asylum decision-making? See 1e and 1g above Section 2 In the past and until now there has been criticism relating to the quality o f initial decision-making at the HO which has been linked to the educational level of decision-makers at the HO. IND has received some criticism about the quality of initial decisions, but not all of it has been fair. External assessors found that over 80% of decisions sampled at random in 2004/5 were fully effective or better. In addition, 78% of the appeals determined in 2004 were dismissed this illustrates that most initial decisions stand up to scrutiny by the independent judiciary. 2a. Could you confirm what is the current entry requirement for caseworkers working on asylum issues at the HO in terms of education level? When external candidates apply to be asylum caseworkers they must have a minimum of 2 A levels. When posts are advertised to staff within the civil service, staff can apply on level transfer or on promotion to become a caseworker. They complete an application form and sit a competency-based interview no minimum educational requirements are asked for, but only those who are considered capable to do the job will be appointed. 2a. Do you think this is sufficient to grasp the complexity of asylum cases and in particular women s cases under the terms of the Refugee Convention and the Human Rights Act? If yes, could you elaborate why? 124

125 Yes. If IND didn t think it were sufficient it would put more stringent entry requirements in place. IND also recognises that academic qualifications are not the only factor which determines whether somebody will make a competent caseworker. Not everybody with A levels and a university degree will find it easy to absorb and apply the principles of the 1951 Refugee Convention. Equally, somebody with no formal academic qualifications but with relevant competencies gained, for example, through previous work experience may make a very good caseworker, hence promotion/transfer opportunities for internal candidates. All new caseworkers, regardless of academic background, undergo 15 days of induction training in assessing the asylum claim (1½ days induction, 1½ days IT which includes training in the use of the Case Information Database, and 12 days Asylum Casework Training course). The Asylum Casework Training covers the need to consider a person s gender when assessing the asylum claim. UNHCR and the Medical Foundation contribute to induction training. After the Asylum Casework Training course, new caseworkers enter a mentoring unit where they work on dummy files under the supervision of experienced mentors for another 15 days. Even when caseworkers leave the mentoring unit and are assigned to a case-working unit, they will continue to be mentored by experienced members of the team. Before caseworkers are allowed to interview applicants, they also have to undergo interview training. This course lasts for 3½ days and involves practising sensitive interviewing techniques on professional actors posing as applicants. IND believes these training programmes provide adequate training for all new entrants. Over 80% of cases sampled at random by independent external assessors in 2004/5 were found to be fully effective or better. 2b. At the UNHCR QI briefing in November 2005 it was reported that the Home Office has agreed in principle to an accreditation scheme for asylum decisionmakers. Could you give us any more information on this? Yes, IND is considering introducing an accreditation scheme for case owners working in the New Asylum Model (NAM). NAM is an important part of the Government s Five Year Strategy, which sets out a blueprint for asylum and immigration processes for the next five years. Under NAM, a single case owner will be responsible for dealing with the claim of an applicant through all the different stages of the asylum process, i.e. from initial decision, through the appeal stages, up to eventual integration or removal. This will involve extensive training for new case owners, hence proposals for an accreditation scheme. The likelihood is that NAM training will be in modular form and both the course and the caseworker will be accredited. Different models for accreditation are currently being looked at, including accreditation to Law Society standards. IND hopes to be able to announce its decision in the near future. Section 3 In the course of this research which has yet to be finalised we have heard of individual cases which have been unduly fast-tracked at Yarls Wood, even though there was evidence of torture and/or signs o f distress from the claimant which should have resulted in the person being immediately taken out of the fast-track system according to current procedures. In this context: 125

126 3.a Could you tell us what are the provisions for gender training of all HO staff at Yarl s Wood or any other detention centres liable to detain women asylum seekers or other detainees who allege they fled gender-related persecution? New caseworkers at Yarl s Wood, Oakington and Harmondsworth receive the same initial training as caseworkers who work in the mainstream process. In fact, many experienced, highly able caseworkers from Croydon and Liverpool spend temporary periods, on a rota basis, at the Detained Fast Track Centres. In addition, all Home Office staff (i.e. not just asylum caseworkers), including those at Yarls Wood and other detention centres, undergo compulsory diversity training which covers gender issues. However, we recognise that gender training is particularly important for caseworkers at Yarl s Wood who currently deal only with female claimants. That is why the attention of all caseworkers working there is drawn to the Gender API and the helpful Training Pack put together by the Refugee Women s Legal Group. Each caseworker is sent a personal reminding them of the importance of familiarising themselves with the guidance available on gender. In addition, the Senior Caseworkers at Yarl s Wood have planned a series of workshops to discuss a range of issues with the caseworkers there, including one on gender that will be held at the end of January or the beginning of February. David Dunford, the Head of the Detained Fast Track at Yarl s Wood, would be happy to extend an invitation for Asylum Aid to attend the workshop on gender to be held there. We are generally satisfied that caseworkers at Yarl s Wood have a good understanding of gender issues and the relevant case law on gender-related persecution, but are not complacent about this issue, which is kept under review. 3.b Can you explain whether current contract provisions between the HO and legal representatives at Yarls Wood submit that legal representatives be aware of gender issues arising in an asylum claim? Yes they do, though contract provisions are between legal aid suppliers and the Legal Services Commission, not the Home Office. The Legal Services Commission exclusively contracts with quality assured suppliers to provide advice and representation to clients under duty rota arrangements. As part of the bid process of awarding contracts to suppliers at Yarls Wood, the Commission asked suppliers to explain what specific arrangements they would put in place to represent a female only client group. The Commission took these responses into consideration when making an overall assessment of each suppliers bid. When contracts were awarded the Commission reminded suppliers of the need to consider the gender guidelines and to act upon them appropriately. See the extract below from letter sent to all Yarls Wood suppliers 29 April 2005: We would remind you that when taking on clients under the fast track rota you should have regard to the particular issue of gender and the guidelines which have been published in relation to this issue. You should address the issue with your client and if your client requests the services o f a female adviser you should ensure that you comply with your client s request. This would also extend to the services o f an interpret er where one is used. The Commission also reminded suppliers of the need to consider the Gender Guidelines in relation to Yarls Wood cases in their June 2005 Immigration Services Team Newsletter. 126

127 Clearly the Gender Guidelines apply to all cases, including those client s who are not in detention and who would instruct a legal representative outside the constraints of the Fast Track process. The Commission has taken up this issue with the Law Society and it is understood that they will be issuing guidance to practitioners with regards to this issue. The Commission (through participation in Home Office/ Immigration Service Fast Track meetings) has confirmed with the Home Office Fast Track team that where a client requests a female representative this information will be passed onto the duty adviser. The Commission does not believe that an all female adviser fast track rota is necessary. However advisers must clearly have consideration to and act within the published Gender Guidelines. This is being re-enforced both by the Commission (in correspondence and newsletter) and by the Law Society in relation to Professional Guidance. Indeed in turn the Commission s contract with suppliers requires that all suppliers comply with the requirements of their regulatory bodies. 3c. What mechanism is currently in place to monitor internally the application of HO gender guidance in the APIs in asylum decision-making of fast-track cases? In the detained fast track a Senior Executive Officer will always check decision letters completed by Higher Executive Officer (HEO) caseworkers before they are served. 127

128 128

129 appendix two list of references and online resources Advisory Panel on Country Information (APCI), Fifth meeting 8 September 2005, APCI.5.M: Minutes, available online at Amnesty International, Get It Right: How Home Office Decision Making Fails Refugees, Amnesty International UK: London, February 2004, online at Asylum Aid, No Reason At All, Asylum Aid: London, Asylum Aid, Still No Reason At All, Asylum Aid: London, Back, L., Farrell, B. and Vandermass, E., Repor t on the South London Citizen s Enquiry into Service Provision by the Immigration and Nationality Directorate at Lunar House, South London Citizens: London, Baldaccini, A., Providing Protection in the 21 st cent ury, Refugee Rights at the heart of UK asylum policy, ARC: London, Berkowitz, N., and Jarvis, C., Asylum Gender Guidelines, IAA: London, Bail for Immigration Detainees (BID) and Asylum Aid, Justice Denied: Asylum and Immigration Legal Aid a System in Crisis, BID/Asylum Aid: London, 2005, online at Bögner, Diana, What prevents refugees and asylum seekers exposed to violence from disclosing trauma, Doctoral Thesis in Clinical Psychology (UCL), 2005, extract on file. Ceneda, S., Women Asylum Seekers in the UK: a Gender Perspective Some Facts and Figures, RWRP, Asylum Aid: London, Ceneda, S., Cutler, S., They took me away, Women s experiences of immigration detention in the UK, Asylum Aid: London, 2004, online at Fraser, June, Review of case law on Particular Social Group from 1999 to 2005, Women s Unit, Refugee Legal Project (Legal Services Agency): Glasgow, Home Office API, Assessing the claim, online at Home Office API, Gender issues in the asylum claim, online at: policy/policy_instructions/apis/gender _issues_in_the.html. 129

130 Home Office API, Gende r issues in the asylum claim, online at policy/policy_instructions/apis/gender _issues_in_the.html. Home Office API, Membership of a particular social group, online at: policy/policy_instructions/apis/membe rship_of_a_particular.html. Home Office, Operational Enforcemen t Manual, Home Office Immigration and Nationality Directorate, on file. Immigration Advisory Service (IAS), Home Office Country Information Analysis, online at Immigration and Nationality Directorate (IND), Fast Track Processes Suitability List, November 2004, on file. Immigration and Nationality Directorate (IND), Detained Fast Track Processes Operational Instruction: Flexibility in the fast track process, April 2005, at mp/flexibilitydocument.pdf. Immigration and Nationality Directorate (IND), Asylum Claimants Suitable for Detained Fast Track Process, Immigration Service Operational Instruction, February 2006, on file. Legal Action for Women, Black Women s Rape Action Project, Women Against Rape, A Bleak House for Our Times: An investigation into women s rights violations at Yarl s Wood Removal Centre, Crossroad Books: London, Legal Services Commission, Immigration Services Team Newsletter, London, 20 June Migrationsverket, Gender-based persecution: Guidelines for investigation and evaluation of the needs of women for pro ection, t 28 March 2001, online at Morgan, B. et al., Home Office Research Study 271, Country of origin information: a user and content evaluation, Home Office Research, Development and Statistics Directorate: London, National Audit Office (NAO), Improving the speed and quality of asylum decisions, NAO: London, June Refugee Women s Legal Group (RWLG), Gender Guidelines for the Determination o f Asylum Claims in the UK, RWLG: London, July Refugee Women s Resource Project (RWRP), Gender issues in assessing asylum claims: spreading good practice across the European Union, briefing tabled by the UK 130

131 Government at the Intergovernmental Committee Asylum Working Group meeting in Geneva on 15/16 November 2005, available at Richards, S., Singer, D. & Steel, M., Hope Betrayed: Victims of Trafficking and their claims for asylum, Poppy Project and RWRP: London, 2006, available online at Smith, E., Right First Time?, Medical Foundation for the Care of Victims of Torture: London, 19 February See synopsis and conclusions at UNHCR, Guidelines on the Protection o f Refugee Women, UNHCR: Geneva, 1991, online at UNHCR, Guidelines on International Protection: Gender-Related Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, HCR/GIP/02/01, 7 May 2002 online at UNHCR, Quality Initiative Project, 1 st Report to the Minister, (undated). UNHCR, Quality Initiative Project, 2 nd Repor t to the Minister, (undated, prob. Autumn 2005). UNHCR QI reports and responses from the Minister available via the Home Office weblink at 131

132 asylumaid march 2006 Refugee Women s Resource ASYLUM AID 28 Commercial Street London E1 6LS Registered charity no.: Tel: Fax: sophiac@asylumaid.org.uk Asylum Aid Excerpts from this report may be copied as long as its authorship is acknowledged.