Domestic Violence Asylum Claims and Recent Developments in International Human Rights Law: A Progress Narrative?

Abstract

Recent years have witnessed significant developments in international human rights law relating to domestic violence. No longer viewed as a matter ‘essentially within the domestic jurisdiction of the State’, domestic violence now frequently commands the attention of international human rights bodies. The obligations imposed on states include positive obligations of due diligence to prevent, investigate and to punish domestic violence, whenever and wherever it occurs. Judicial dialogue across the borders of human rights and refugee law has also expanded the scope of refugee protection for women fleeing domestic violence, bringing with it a gradual recognition of the positive obligations that international law now imposes on states. However, as recent cases such as Jessica Gonzalez v the United States and Opuz v Turkey reveal, significant gaps remain between the rhetoric of human rights law and the reality of protection offered by states on the ground. These gaps are most keenly felt by refugee women. While state practice suggests greater gender inclusivity and sensitivity in the practice of refugee law, women fleeing domestic violence continue to face obstacles in making their claims heard.

The ambivalence with which domestic violence claims are treated in asylum adjudication reflects the hesitation to affirm the human rights norms and attendant obligations underpinning such claims. The very prevalence of domestic violence disadvantages women in presenting claims to persecution. The widespread impunity of state and non-state actors for crimes of domestic violence brings into question the exceptional claim of the asylum seeker and raises the spectre of opening floodgates in response to a human rights violation that is both familiar and endemic. Despite more than a decade of gender guidelines on international protection standards and procedures, refugee women continue to face difficulties in presenting claims of persecution and in demonstrating a failure of state protection when the harm suffered takes place, as the European Court of Human Rights notes, ‘within personal relationships or closed circuits.’

This article examines developments in international human rights law relating to domestic violence and questions how or whether refugee law has integrated those developments into asylum adjudication processes.

Keywords: Domestic Violence, Gender Related Asylum, Women's Human Rights, Credibility, Persecution