Women and girls make up the majority of displaced people and asylum seekers in the world. They are more vulnerable to (sexual) trafficking, gender-based and sexual violence, domestic violence, armed violence, and poverty. Millions of women suffer under regimes in which their rights (such as to education and freedom of movement) is restricted or practically non-existent. Governments rather than protecting them, actually perpetuate the harm, leaving no other choice to women but to flee oppressive patriarchal systems.

Regardless of the frequency with which women are forced to seek asylum, the legal system is ill-fitted to protect them from this harm. This manifests in a number of ways. Firstly, because women are less likely to be in possession of their documents and are more likely to suffer harm at the hands of private actors, there are significantly more hurdles to prove that they fit the legal definition of a refugee and thus are deserving of asylum. Additionally, ‘gender’ is not named in the 1951 Refugee Convention as a ground for persecution, despite the fact that women, always and everywhere, suffer from discrimination because of their gender identity. 

However, what is most detrimental in the plight of the women asylum seeker is that the legal framework allows for the permeation of sexist biases that lead to the arbitrary rejection of women asylum seekers. This is because to be granted asylum, as per the 1951 Refugee Convention, the applicant needs to prove a ‘well-founded fear’ of persecution. In non-legal terms, this means that she has to convince the asylum application adjudicator that 1) gender-based violence is pervasive in her country of origin (objective component) and that 2) she is personally a victim of such violence (subjective component). 

Both of these components and the manner in which they must be interpreted discriminate against women asylum seekers. The subjective component demands that the asylum seeker tells a story of her persecution that is ‘capable of being believed’. This is a demand of credibility in which the asylum adjudicator enjoys an absolute margin of discretion. Because women asylum seekers are often not in possession of necessary documentary evidence, and because persecution targeting women often cannot be documented, the subjective component is almost entirely dependent on whether the asylum adjudicator personally believes the asylum applicant. This means that she must provide a ‘coherent, consistent, plausible and detailed’ account of the discrimination she has suffered, reliving the traumatic experience that made her flee in the first place. Whether or not a woman asylum seeker will get her/their application accepted depends on this falsely objective and actually arbitrary decision, leading to a massive number of rejections based on adverse credibility findings. 

This is especially problematic for women asylum seekers because women are systematically disbelieved, at a much higher rate than men. This can be referred to as the ‘gender credibility gap’: women are seen as less reliable and less credible and are, as a result, less likely to be believed. This credibility gap is as intersectional as most discrimination is. When BIPOC or sexually and gender diverse people apply for asylum, they are even more likely to be disbelieved and dismissed. At the ‘intersection of sexism, racism, homophobia and xenophobia’, the woman asylum seeker is much less likely to be granted a positive asylum decision due to these high evidentiary hurdles.

For example, in one case three men caseworkers rejected a woman’s asylum application, deeming her story of imprisonment, rape, and escape unbelievable because no one had escaped from the prison before. In another particularly problematic case, an asylum seeker who had suffered female genital mutilation was barred from asylum as her story was deemed ‘implausible’ because the caseworkers had never heard of the practice. Women’s experiences are systematically misunderstood, arbitrarily disbelieved, and outright rejected as ‘false’ due to the misogynistic biases that permeate the asylum application procedure. 

The objective component should, at least theoretically, allow less of this permeation. This part of the application requires that the country of origin of the asylum seeker has a well-documented history of human rights abuses, such as gendered oppression. The available data is then compared with the story as told by the asylum seeker to determine whether these two sources of information contradict each other. However, ‘objective’ data almost always misrepresents the extent of gender discrimination. Due to chronic underreporting, the gendered violence suffered by women is inevitably underestimated. As mentioned, women’s persecution is perpetrated largely by non-state parties in informal settings. Domestic and sexual violence, failure to conform to social norms, and the inability to participate in socio-political forums all constitute forms of persecution but are difficult to prove and perpetrated with impunity. For example, 99.1% of sexual violence cases go unreported in India; around 80% in the United States of America; and 83.3% in the United Kingdom. 

In light of such statistics, it is clear that the available information (where it is even available) undermines the extent to which women experience persecution. The effect of this chronic underreporting is that, when this incorrect data is compared to the story of persecution as told by the asylum seeker, it will result almost inevitably in a negative asylum decision. 

Another facet of this issue that requires addressing is that the way the asylum definition currently operates favours physical violence over more nuanced forms of psychological and indirect violence, such as poverty, domestic labour, the wage gap, and, more generally, the toll women pay for living in a society that demands their continued disenfranchisement. Indeed, the definition in the Refugee Convention was written largely with the idea of an asylum seeker as a man, political refugee fleeing authoritarian regimes (remember, it was written in 1951). As a result, the definition provides little protection towards women from even overt harm, let alone forms of such harm that are so institutionalised and ingrained in the fabric of modern society that it is rarely questioned. 

In this way (and more), access to asylum is particularly limited for women asylum seekers due to their gender and the manner in which they suffer persecution. Women flee from and into systems that discriminate against them. The legal framework that is meant to protect women from harm actually constitutes another form of this harm, perpetrated not by private actors but by the state institutions that apply the Refugee Convention. In this manner, asylum is gendered.