‘She, of Course, Holds No Political Opinions’
| Published date | 01 April 2017 |
| DOI | 10.1177/0964663916681067 |
| Author | Nora Honkala |
| Date | 01 April 2017 |
| Subject Matter | Articles |
Article
Social & Legal Studies
2017, Vol. 26(2) 166–187
‘She, of Course, Holds
ª The Author(s) 2017
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No Political Opinions’:
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DOI: 10.1177/0964663916681067
Gendered Political
journals.sagepub.com/home/sls
Opinion Ground in
Women’s Forced
Marriage Asylum Claims
Nora Honkala
City, University of London, UK
Abstract
Women continue to face challenges in having their asylum claims recognized under the
Refugee Convention. This is to a significant extent due to the ways in which the Con-
vention is applied to women’s claims and is particularly the case in gender-based per-
secution claims. While there have been important advances in the field of gender and
refugee law, contributing to an improved understanding of the relevance of gender
within international refugee law, there remains a need for more gender-sensitive
interpretations of the Convention. This article critiques the ways in which the political
opinion ground of the Refugee Convention has been applied to some women’s forced
marriage claims in the United Kingdom. Women’s gender-based persecution claims are
often categorized under the membership of a particular social group ground and the
political opinion ground remains an underused and narrowly interpreted category.
Drawing on feminist critiques, it is argued that this demonstrates an underlying gendered
politics, and that the political opinion ground can indeed be relevant to women’s asylum
claims involving forced marriage. Women’s resistance to their gendered oppression in
the form of forced marriage should be seen as a valid expression of their political opinion
and agency.
Corresponding author:
Nora Honkala, The City Law School, City, University of London, Northampton Square, London, EC1V 0HB,
UK.
Email: Nora.Honkala@city.ac.uk
Honkala
167
Keywords
Adjudication, feminism, forced marriage, gender and asylum, political opinion ground,
refugee law
Introduction
Although in the original text of the Refugee Convention, gender was explicitly excluded
as a ground for persecution justifying the granting of refugee status, significant advances
have been made in recognizing the relevance of gender in relation to refugee law. When
the Refugee Convention was drafted, gender was discussed only once and the suggestion
by a Yugoslav delegate to include the category of sex in the non-discrimination Article 3
was quickly rejected (Spijkerboer, 2000: 1). The approach at the time was exemplified
by the British delegate’s pronouncement ‘that the equality of the sexes was a matter for
national legislation’ (2000: 1). The Chairman of the drafting conference, UN High
Commissioner for Refugees van Heuven Goedhart, strongly doubted that there would
ever be any refugee cases on account of sex (2000: 1). From the time of the adoption of
the Convention till around 1980s, the specific gender-based concerns of asylum-seeker
women mostly remained invisible.
It is largely due to non-governmental organizations (NGOs), feminist activists and
academics that this invisibility of gender-based concerns of asylum-seeker women has
been exposed and brought on to the agenda (Edwards, 2010: 22). Feminists have been
critiquing the supposed gender neutrality of the refugee definition for decades (Arbel et
al., 2014; Crawley, 2001; Greatbatch, 1989; Indra, 1987). Early critiques of the absence
of gender as a sixth category (in addition to race, nationality, religion, political opinion,
and membership of a particular social group (PSG)) argued that this meant that gender-
related persecution was trivialized and that trying to deal with this type of persecution
through the analysis of the other categories was insufficient (Stevens, 1993: 214). Others
pointed out that a separate category might lead to all persecution of women being
thought of as falling within a single category, leading to perceptions that women’s
persecution was always something fundamentally different than men’s and by inference
perhaps something less important (Freedman, 2015: 75). In practice, however, it has
been accepted that the international political climate has not been conducive to the
expansion of the refugee definition by way of including gender as a sixth category
(Copeland, 2013: 114). Efforts have therefore turned to the interpretation of the Con-
vention and its practical application. According to current feminist critiques, the problem
is not the Convention per se but rather the ways in which women’s experiences are
‘actually represented and analytically characterised’ within refugee determination pro-
cesses (Crawley, 2000: 19).
There is thus a need to examine the specific ways in which adjudicators deal with
gender-based persecution claims. Gender-based persecution has been conventionally
characterized under the PSG ground, leading to the underuse of the political opinion
ground. However, is this selection the most appropriate and what does it tell about the
ways in which the Refugee Convention is interpreted in relation to women’s
experiences?
168
Social & Legal Studies 26(2)
In this article, forced marriage is examined as one type of gender-based persecution
claim in which the political opinion ground has been underused and narrowly inter-
preted. The argument advanced is that its interpretation reveals the gendered politics
at play in the context of refugee determinations in which the rights pertaining to gender
(and also sexual orientation) are yet to be fully realized. The article therefore explores
the specific ways in which the political opinion ground is understood by adjudicators and
the implications it may have on women’s claims.
The first part of the article discusses the developments in international refugee law in
relation to gender-based persecution. It looks at why women’s claims involving gender-
based persecution conventionally fall under the PSG, and why this might not always be
the most appropriate one. The second part examines this tendency in light of feminist
critiques of the public/private dichotomy and its effects on the gendered and partial ways
in which the political opinion has been interpreted. The argument advanced is that the
distinction between the public and private spheres underlines the framing of women
asylum-seekers’ experiences of gender-based persecution as ‘private’, thereby construct-
ing women as social and cultural actors as opposed to political ones. This restriction to
the ‘private’ may prevent us from appreciating the political nature of women asylum-
seekers’ claims. The third part draws on my research into women’s asylum appeals
claims involving forced marriage between 2004 and 2014. Most of these cases were
advanced under the PSG ground, but in two cases, the political opinion ground was also
advanced. While the conceptual overlap between the two grounds is recognized, this
section illustrates how adjudicators have construed the political opinion ground nar-
rowly. As explained in part three, due to the ways in which these types of cases are
published, it is not possible to evaluate how representative of forced marriage claims in
general they are. However, the manner in which the political opinion ground has been
discussed can shed light on the ways in which women’s experiences are represented and
their claims are categorized. The argument advanced is that resistance to forced marriage
can be seen as political and becomes as such due to the context in which that resistance
takes place. To understand refusal of a forced marriage as a valid expression of political
opinion and agency avoids the depoliticization of women’s claims and allows the rec-
ognition of the personal as political.
Establishing the convention ground
The Refugee Convention defines a refugee as a person who has a well-founded fear of
being persecuted for reasons of race, religion, nationality, membership of a PSG, or
political opinion (Article 1 A). When a state makes a refugee status determination, the
asylum-seeker must prove that she has a well-founded fear of being persecuted for
reasons of one or more of these Convention grounds. The legal claim of persecution
is conducted by demonstrating ‘serious harm’ in combination with a ‘failure of State
protection’. The manner in which these aspects are evaluated may have adverse gender-
based effects on women’s claims of asylum.
Regarding the evaluation of a relevant convention ground, gender-based persecution
has generally been considered to fall within the category of PSG. The United Nations
High Commissioner for Refugees (UNHCR) has, over the years, given guidance to states
Honkala
169
on the manner in which gender-based persecution should be interpreted. In 1985, the
UNHCR recommended (in Conclusion 39) that ‘women asylum seekers who face harsh
or inhumane treatment due to the values of their society may be considered as a partic-
ular social group under Article 1 A (2)’.
Moreover, in 1991, the UNHCR Executive Committee’s Guidelines on the Protection
of Refugee Women recommended that ‘women . . . fearing persecution or severe discrim-
ination on the basis of their gender’ should be considered a member of a PSG and that
‘others may be seen as having made a religious or political statement in transgressing the
social norms of their society’ (UNHCR ExComm, 1991: 71).
Already two decades ago, then, the UNHCR made clear that some women’s gender-
based persecution claims that included transgressing ‘social norms of their society’ could
be appropriately determined under political or religious convention grounds. However,
as the guidelines are not...
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