chapter  1
29 Pages

Why we are not there yet: the particular challenge of ‘particular social group’

WithMICHELLE FOSTER

One of the most complex aspects of establishing qualification for refugee status is the need to link a well-founded fear of being persecuted to a Convention ground, that is, to one’s race, religion, nationality, political opinion, or membership of a particular social group (PSG). While this constitutes a challenging aspect of refugee status determination in many types of claim, the difficulties are particularly acute for claims based on gender or gender identity given the lack of explicit reference to ‘women’, ‘sex’, ‘gender’, ‘homosexuality’, or ‘gender identity’ in the 1951 Refugee Convention. Of course it has always been understood that women can be persecuted on other grounds, and indeed the ‘political opinion’ ground is especially promising, as illustrated in one New Zealand tribunal’s understanding that ‘the political opinion ground must be oriented to reflect the reality of women’s experiences and the way in which gender is constructed in the specific geographical, historical, political and socio-cultural context of the country of origin’ (Refugee Status Appeals Authority (‘RSAA’) Decision 76044, 2008 [84]). Yet this level of sophistication has not been uniformly achieved, and it remains undoubtedly the case that the PSG ground is, in most jurisdictions, the only available Convention ground where gender-based persecution is at issue. Although the Conference of Plenipotentiaries responsible for drafting the Refugee Convention considered it unnecessary explicitly to refer to gender inequality, even raising doubts as to whether there ‘would be any persecution on account of sex’, it has long been accepted that the social

group ground is capable of accommodating gender-based claims (Edwards 2010, 23). This proposition has been accepted and affirmed by the highest courts in the common law world and increasingly in the civil law world as well, including in the European Union’s ‘Qualification Directive’ (Council Directive 2004/83/EC).2 Further, the United Nations High Commissioner for Refugees (UNHCR) has recognized since the 1980s the importance of infusing the refugee definition with gender-sensitivity, and, in 2002, explicitly affirmed that ‘sex can properly be within the ambit of the social group category’, in both its Guidelines on International Protection relating to membership of a particular social group (UNHCR 2002b, [12]) and Guidelines on International Protection concerning gender-related persecution (UNHCR 2002a, [30]). Yet despite these positive developments, establishing that her wellfounded fear of being persecuted is for reasons of her gender remains a pervasive challenge for many women claiming refugee status. This chapter examines and explores current challenges in interpreting social group for claims based on gender and gender identity. It begins with a brief overview of the key conceptual approaches to interpreting the social group ground, outlining and explaining the two dominant approaches. The chapter then analyses a wide range of jurisprudential developments, both common law and civil law, concerning social group over the past ten years in order to identify why many gender-based claims fail at this crucial stage. The chapter concludes by making some recommendations that might guide decision-making in the future.