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HOW IS GENDER ARTICULATED AND/ OR OBSCURED WITHIN THE
REFUGEE SYSTEM? IS THIS PROBLEMATIC?
The ways in which the omission of ‘gender’ is articulated and obscured within both
the international and domestic refugee systems has changed and (questionably)
‘progressed’ drastically since roughly the 1980s (Foote 1994, Edwards 2010,
Freedman 2007). When the core instrument of refugee legislation- 1951 Refugee
Convention (UNHCR)- was originally ratified, gender was a discourse absent: the
legislation was overwhelmingly ‘gender-blind’ (Indra 1987), in so far as it was
written from a standpoint of male domination (he), and therefore implicitly assumed
that the driving forces which underpin male and female motivations for seeking
refugee status are identical (Indra 1987). However, whilst the legacies of these
objective tendencies will be considered as still playing a part in shaping the refugee
process, it is important to direct the discussion to a critical turn in refugee legislation
that has altered the way in which gender is both articulated and, as shall be argued,
‘obscured’ in new ways for refugees internationally. As ‘obscured’ may possess
various meanings, within this context I have come to understand its relation to
gender as synonymous with how a legal and societal understanding of gender is
limited in both scope and depth.
This essay will firstly map the way in which the articulation of gender has altered in
the UK, since the implementation of various amendments which have urged
policymakers to consider gender as a significant variable for seeking asylum. I will
then consider whether ‘gender-blindness’ still subordinates women’s ability to

2. 2
validify their asylum claims (Crawley 2000). There has been a tendency within socio-
legal refugee academia to synonymize ‘gender’ and ‘women’ (Edwards 2010:40) and
therefore refugee men are often left out of analysis, which can be pose challenges to
understanding masculinity within the refugee system. However, as women dominate
the discourse as a homogenous group marginalised by the asylum system, and as the
main victims of gender-based persecution (Asylum Aid 1994), the essay will be
focused on assessing the conceptualisation of women within the asylum process. I
shall then proceed to argue that, whilst international law has moved to a more
‘gendered’ approach, the implicit articulation and obstruction of gender presents new
and pressing challenges for women seeking asylum in the UK. The focus of the essay
will be upon the socially constructed gender norms that are echoed in UNHRC
discourse which reinforce gendered stereotypes regarding what it means to be a
female refugee. I will argue, that the subordinated stereotyping of femininity is
inherently problematic for those individuals who fail to fit into a gendered category.
This stereotyping is echoed within UK refugee institutions such as the Home Office
who reinforce and institutionalise gendered stereotypes which are omitted in
legislation, and replicate ideas of ‘vulnerability’ and ‘passivity’ about refugee women.
The secondary attention given to the refugee system at ‘ground level’ will demonstrate
a specific obstruction of gender on account of a rigid ‘culture of disbelief’ that makes
becoming a refugee on the grounds of gender increasingly complex, which then in
turn creates unmerited barriers for those in grave danger against gender-based-
persecution.
The ‘refugee system’ in the UK can be understood as two parts: the international
socio-legal framework within which refugee claims are assessed (Refugee Convention

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1951 and 1967 Protocol (UNHCR)), and the groundwork carried out by the Home
Office and other similar institutions who assess individual asylum claims. Although
both parts are interdependent, they institutionalise different problems for gender and
thus it is necessary to consider the two separately. It is important as well to consider
the widely criticised public hostility towards UK refugees as a factor which
exacerbates problems for women, and delays gender equality (Mulvey 2010) within
the refugee system.
Since roughly 1985, the Refugee Convention has received criticism right across the
feminist spectrum for failing to consider gender as a variable that can shape
persecution (Valji 2001, Palmary 2010). As a result of extensive lobbying (Asylum
Aid, Women for Refugee Women), both UK and international refugee legislation have
introduced guidelines that consider refugees experiences and motivations for
persecution within an increasingly gendered setting (UNHCR Policy Refugee Women
1989, Immigration Appellate Authority 2000, Home Office 2006). Although gender is
not directly mentioned within the Refugee Convention, it is now incorporated within
the understanding of a ‘particular social group’ (UNHCR): simply belonging to a
certain gender could be the driving force behind persecution and consequently, flight.
These cited policy amendments seek to recognise and incorporate this underlying
ethos (Fatin v. INS 1993). The agreement that rape in particular is a crime which
overwhelming affects women (Kelly 1993), and often seeks to reinforce and
normalise patriarchal power relations between men and women (Mackinnon 1994),
is now a pressing concern that international organisations have attempted to
interlace into policy (Bower 1993, UNHCR 1998). This strategy has been part of a

4. 4
wider instrument of ‘gender-mainstreaming’ carried out by international
organisations such as the EU, which aims to reinforce the philosophy that women’s
rights must be protected and seen in the same way as universal human rights
(Crawley 2001, Edwards 2010). The process by which the articulation of gender has
changed (and continues to) frames two central arguments of this essay: that the
omission of gender in a rudimentary sense is not the pressing challenge for refugee
women, as it is evident that the international community have made efforts to
consider the dimension of gender in assessing grounds for persecution. However, the
social-constructions of ‘femaleness’ that surround an understanding of gender
bridges gender-based crimes with an unremitting idea of women as passive victims
who possess little autonomy over gendered forms of persecution which affect them.
This obscures, and limits the extent to which women can inspire a discourse that can
evolve, with a political idea of gender which is constantly in-flux (Palmary 2010).
The omission of gender (as a ground for persecution) may be widely praised as a
step towards ending violence-against-women at both domestic and international
levels, as it appears to foster equality of the sexes. However, the extent to which the
recognition of gender as ‘a particular social group’ has been a useful tool in facilitating
genuine gender equality within the refugee system, or whether they realistically pose
greater challenges for identifying as a refugee woman, is debatable (Charlesworth
1991, Mackinnon 2009). Many feminist scholars across the socio-legal spectrum have
criticised the discourse for being narrowly focused upon an incomplete conception of
‘gender-based-persecution’ (crimes performed on account of one’s gender (Chantler
2010, Edwards 2010)). Common understanding amongst western governments
(Crawley 1998, 2001) have been concerned with an idea of gender-based-persecution

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that is politically motivated and owes itself exclusively to the public sphere/ political
involvement (Wankel 2010), like the public acts of mass rape performed against
women in the former Yugoslavia and Bosnia (Mackinnon 1994, Wankel 2010: 19).
Whilst rape is often performed as a power tool within the public sphere, and may be
an act which contributes to wider politically motivated crimes, other ‘private’ forms
of gendered persecution are just as prolific for many women seeking refugee status-
yet are paradoxically, overwhelmingly ignored within international refugee
legislation (Charlesworth 1991, 2000). Chantler discusses how, despite movement
towards a recognition of gender-based-persecution, when those crimes move beyond
public acts of rape towards acts performed in private, or for individual (rather than
political) motivation, it becomes extremely difficult for women to meet the legal
requirements for claiming asylum on account of their gender (Kneebone 2005). The
issue is with whether ‘private forms’ of persecution (FGM, Domestic-Violence, spousal
rape (Chantler 2010)) experienced by women can be considered a ‘well-founded fear’
(UNHCR 1951) worthy of asylum. FGM for example, is a practice that inherently
attaches itself to the private sphere and is ironically often ignored as a ground for
persecution as an independent case (Chantler 2010, Flamand 2015, Burrage 2014).
This can be illustrated in the case of Afusat Saliu, a Nigerian woman who was
deported in 2014 because her FGM asylum application did not meet official
requirements (Burrage 2014).
It is therefore reasonable to postulate that an understanding of gender-based
persecution in the UK may be limited in both its scope and depth, owing mainly to its
failure to address the omnipresence of private forms of persecution like FGM. This

6. 6
state of affairs clearly poses major challenges to the safety of women experiencing
‘other’ forms of gender-related persecution.
In addition, this one-dimensional approach fails to recognise that women also
experience persecution within the non-sexual public sphere, and do flee on account of
typically ‘male’ forms of persecution, such as being forced to be a soldier in a civil
war (Crawley 2001). As participation in civil war at ground level has been historically
associated with men (Hutchings 2008), it can leave women in grave danger as a result
of warfare, outside gendered binaries. It is the typical ideas of which sexes participate
in which acts can result in some women being outside the scope of protection. The
idea that women’s persecution is confined to a sexual and private nature is given
credence through a focus on sexual violence within mainstream policy, and as a result
seeks to obstruct many reasons for which women flee persecution, so that these
motives for flight are depoliticised (Crawley 2001). Depoliticisation is problematic
for refugee women because it downplays the severity and range of crimes which can
be committed on account of ones’ gender.
The understanding of gender in terms of the public-private divide is what some
feminist scholars have criticised as simply ‘bringing women in’ (Okin 1995, Olivius
2010:7), rather than integrating the varying experiences of individual refugee
women. The distinction between public-private forms of persecution that is
articulated in emerging refugee legislation (and its influence upon understandings of
gender-based persecution) is seemingly shallow and reductive, in its incapacity to
bridge the public-private binaries.

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The inherent flaws of the current refugee system, along with the gravity of the crimes
against women, have motivated policymakers and academics to move towards a more
coherent and thorough understanding of gender-based persecution (see. UNHCR
1991, Metha et al 2003: 1). Amongst many schools of thought, this has included a
proposal to recognise women as a separate group, the membership of which is a
reason to claim asylum; this therefore becomes a part of the way in which gender is
articulated within the refugee system (Macklin 1995, Randall 2002). This initiative
would supposedly help to overcome the ‘gender-blind’ dimension of refugee
legislation. Its central argument is possibly that it is incoherent to suggest that the
state can understand gender-based persecution if gender is not explicitly addressed
within the Convention: the mechanisms for devising a well rounded framework that
accounts for the experiences of women as a social group separate from men, are
absent (Metha et al. 2003). However, I believe that the consideration of women as a
separate homogenous group is a mechanism born out of a particular understanding of
gender-based persecution, which is limited to the private sphere.
The movement to consider women as a separate group appears to only perpetuate
the gendered inequalities it seeks to supress (Foote 1994). The paradigm shift
towards recognising gender as a ground for persecution produces a very restrictive
image of what it means to be a refugee woman (Crawley 2001). Refugee women are
strongly associated with a degree of vulnerability which as many scholars have
argued, only reinforces gendered hierarchies within the UK refugee system through
the patriarchal stereotyping that women are naturally subordinate beings (Tvedt
2013:27). From a structuralist position, Crawley argues that the social construction of

8. 8
‘the vulnerable refugee woman’ also polarises refugee women from western women:
seen as the archetypal independent and liberated opposition to the refugee woman
(2001). This seeks to reinforce western, liberal feminist conceptions of an ‘oppressed
third world’ (Kea, Roberts-Holmes 2012). This is an incredibly damaging way in
which gender is obscured and increasingly depoliticised within the refugee system in
the UK, because not only does the portrayal of vulnerability reinforce gendered
hierarchies in relation to men (Indra 1995); it also feeds classist and racialised
discourses between different groups of women from different cultures (Edwards
2010, Tvedt 2013).
The rigid way in which gender is articulated with asylum law produces major
implications as to how asylum claims are dealt with at ground level via the
assessment of UK governmental institutions such as the Home Office or UK Border
Agency. The relationship between refugee assessment institutions and refugee
international law is one that reinforces overlapping gendered hierarchies and
therefore obscures the way in which gender is considered at both levels. There is a
great body of literature from human rights organisations that suggests there is a
profound ‘culture of disbelief’ that permeates asylum claims in the UK (Asylum Aid
2014, Centre for Refugees 2014, Refugee Women 2015). A ‘culture of disbelief’ is a
term referring to the tendency of officials within the UK to treat refugee claims with
automatic scepticism; the prevalent notion is that refugee claims are likely to be
‘bogus’ and a cover up for economic migration goals (Dorling, Girma 2012). The
culture of disbelief has been explicitly linked to racialised and classist dimensions of
the migration debate, given its intrinsic tendencies to assume certain ethnicities
fleeing for certain reasons may be likely to seek economic migration (Sales 2002,

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Schuster 2004). However, gender issues also have serious and complex influences
upon the UK’s culture of disbelief and therefore arguably, obstruct the extent to which
it is a valid claim for asylum; gender-based-violence (as a problem overwhelmingly
experienced by women) is particularly problematic for a number of reasons. Briddick
discusses three central factors as to why the UK culture of disbelief in credibility
assessments are causing women to be less able to claim asylum: not having the
correct documentation; being forced into oral testimony within the asylum claim; and
possessing the ability to prove ones claims (Briddick 2015). Gender-based-
persecution (such as rape) is likely to be incredibly difficult to gain documentation for
(Charlesworth 1999), and thus women are forced to rely on giving a distressing oral
testimony to a stranger who is unlikely to have an informed understanding of gender-
based persecution due to cultural difference (Mckinnon 2009). Moreover, these
institutions are likely to be male-dominated (Refugee Women 2015), creating further
traumatic barriers for women giving their testimony. It is almost inevitable to suggest
that, given the trauma most of these women have endured, they may not give a
completely accurate account of their assault, or may provide information late. Human
rights organisations have referred to the rigidity of the Home Office in tolerating any
inconsistencies in asylum claims which concern gender-based persecution (Asylum
Aid). All of these problems serve devastating consequences on women if their claims
are refused upon these grounds (Refugee Women 2014, Asylum Aid 2015), and has
the capacity to create a position of ‘limbo’ which many women are likely to find
themselves in; they cannot return to their country of origin, yet they cannot move
forward. Thus, the problems with UNHCR discourses such as ‘well-founded fear of
persecution’ additionally appear to have drastic effects on the ways in which asylum

10. 10
is dealt with not only in theory, but in practice. It appears that all of the pressing
challenges that surface when gender-based persecution is dealt with under UK
refugee institutions suggests that the practical framework for assessing gender-based
asylum claims may fall short of justice and equality for prospective refugee women.
Gender-based persecution and the framework for assessing asylum in the UK is
incompatible through its evident tendency to undervalue ‘gender’ as a sole
motivation to flee conflict.
In tackling the proposed question, I have sought to deconstruct the essay in to two
interdependent parts. By mapping the constantly in-flux relationship between gender
and asylum within mainstream legislation, one was able to pinpoint critical junctures,
and shed light on the multiple complexities of gender-based persecution. The process
by which women have become recognised within refugee legislation however, has
been built upon a shallow and limited understanding of gender-based persecution
that is underpinned by ideas of passivity, male subordination and vulnerability. I
argue that as a result, gender is dealt with superficially within the refugee system;
treating women as a homogenised group who’s differences are not represented. This
inevitably constructs challenging barriers for women seeking refugee status for well-
founded reasons; placing them in potentially grave danger.
The proposition to consider women as a separate group is also an important
dimension of the debate, as a ‘solution’ that influences the way women are perceived
within the asylum process holistically. I have argued that despite the existing
literature which advocates a separate grouping for women within the refugee system,

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this proposal will only further marginalise women and draw borders around our
understanding of what constitutes as gender-based persecution.
Given that the refugee system exists at two levels, the latter part of this essay was
dedicated to understanding the way that the ‘culture of disbelief’ which infects the
refugee system, obscures the notion of gender (as a ground for persecution) in a
practical sense. The central tenant of my argument here is that, the framework for
assessing asylum claims in the UK is profoundly incompatible with the multifaceted
nature and traumatic reality of gender-based-persecution. This therefore limits the
extent to which gender can be considered a legitimate ground for claiming asylum,
and escaping imperative dangers across borders.
However this essay did not intend to argue that the ways in which gender is
misunderstood in refugee legislation is necessarily a deliberate strategy aimed to
intentionally reinforce gender hierarchies by policymakers. Given the sheer
complexity of gender-based persecution and gender roles (within the context of
‘forced’ migration), it is almost inevitable that any individual framework for
articulating gender within the refugee process will incur challenges, and become
misconstrued in some ways. Neither was it within the purpose or scope of this essay
to devise a policy solution to reconcile with the cited problems. However, that is not
to say that these issues concerning gender, refugee women and persecution cannot be
overcome with further research and theorising that allows for experiences of all
women (regardless of public/private divide), to be considered equally.

12. 12
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