Designating ‘vulnerability’: the asylum claims of women and sexual minorities

The Refugee Convention was not designed with the persecution of women and sexual minorities in mind. But times change and today most would agree that women at risk of Female Genital Mutilation and LGBT people threatened with the death penalty in their countries of origin should be granted asylum. The problem is these individuals do not obviously fit the Convention definition of a refugee based on persecution due to race, religion, nationality or political opinion, leaving identification as members of a ‘particular social group’ the only option available. Advocates then struggle to define the parameters of that group. Is it as broad as women in Pakistan or as narrow as gay men who frequent a certain park in the centre of Tirana?

One way to circumvent the problem might be for advocates instead to consider ‘vulnerability’ as the basis for qualifying for international protection. The ways in which women and sexual minorities are persecuted often correspond to the criteria for vulnerability identified in EU asylum directives which include ‘victims of human trafficking… and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, such as victims of female genital mutilation…’. In two cases in recent years, the European Court of Human Rights (ECtHR) has applied vulnerability in this way: broadly in M.S.S v. Belgium and Greece, where an asylum seeker was found to be vulnerable on the basis of his migratory experience; and more specifically in O. M. v Hungary where a detained asylum seeker was agreed to be a ‘member of a vulnerable group by virtue of belonging to a sexual minority in Iran’.

At first this might seem progressive in finding a way to recognise that sexual minorities and women experience specific forms of persecution not envisaged by the framers of the Convention. And in adopting the language of vulnerability, the EU and ECtHR is reflecting the language of policy and service provision – at least in the UK – where the concept of vulnerability is commonly used, including in the field of asylum and immigration: the Shaw Review into the welfare in detention of vulnerable persons recommends that ‘the presumption against detention should be extended to victims of rape and sexual violence [and] to transsexual people’ (p12). The Government programme for supporting Syrian refugees – the Syrian Vulnerable Person Resettlement programme – enshrines ‘vulnerability criteria’ including ‘women and girls at risk’ and ‘persons at risk due to their sexual orientation or gender identity’ (p19).

Yet while the label of vulnerability may benefit asylum seekers individually and in the short term by strengthening the basis on which they are entitled to protection, it is also problematic in a number of senses. Firstly, vulnerability becomes part of the individual’s identity – it defines women and sexual minorities:

One problem with a construct such as vulnerability is that it potentially closes the focus of attention around those peoples and places reckoned to be vulnerable. It is something about them, about their intrinsic characteristic or properties, including the simple and, at first blush, accidental fact of their worldly location on a particular floodplain, below a particular mountain or in a particular urban district, that renders them vulnerable to something bad happening (whether that be a natural event such as a landslide, or a social occurrence such as an outbreak of terrorism). There is a danger that our eyes are drawn away from the larger context, the situation, the chains of influence, within which their vulnerability is created, we might even say produced, maybe perpetuated. ^[1]

Secondly, characterisation as vulnerable poses the question: vulnerable to what or whom? Of course that partly depends on the situation in which vulnerability is being attributed, but in building the case for asylum, it is generally expedient to present an account of extreme mistreatment by an oppressive ‘other’, underlining the dichotomy between refugee-producing and refugee-receiving parts of the world. This places a burden on individuals who need protection but who are unwilling to paint their families, communities or countries of origin as entirely without redemption in the narrative they use to claim protection. As one asylum seeker from Pakistan said (though probably not in his interview with the Home Office):

I still miss my country, not everything is horrible there.^[2]

Finally, this trope only helps those who can conform to the stereotype of absolute victimhood. Those whose accounts show more agency – women experiencing domestic violence but who are also active in campaigning against it – may find their claims fail because Home Office decision makers and judges do not recognise them as sufficiently ‘vulnerable’. Training and guidance for officials and members of the judiciary may offer some remedy here.

Analysing decisions by the European Court of Human Rights, scholars such as Venturi, or Peroni and Timmer have argued that the benefits of operationalising ‘vulnerability’ outweigh the drawbacks, as long as courts avoid the pitfalls of the stigmatising and essentialising conceptions associated with the term. But applying this argument at a domestic level incurs risks: the refugee legal system is based on expediency and cuts in access to legal aid, advice and representation – again speaking from a UK perspective – mean that lawyers and advisors with reduced capacity do not have the time to develop a more nuanced case for asylum, one that would correspond to people’s real experiences and afford them a degree of agency. The safest option is to paint them as abject victims of brutal regimes rather than risk jeopardising the individual’s claim when the odds are already heavily stacked against those who fall outside the refugee archetype that the system was drafted for – a single male political activist facing persecution at the hands of the state.

To conclude, this is not (necessarily) to argue against the deployment of ‘vulnerability’. It is to recognise its use as a manifestation of a greater problem, variously labelled as homonationalism or white men saving brown women from brown men,^[3] whereby the complexities and ambiguities of asylum seekers’ experiences are lost in simplistic stories of women and sexual minorities as victims of utter misogyny and homophobia. While advocates will inevitably find it expedient to portray claimants as vulnerable victims on a case-by-case basis, a blanket definition of some individuals as vulnerable should be avoided in favour of asylum processes that correspond with people’s needs and experiences.

Acknowledgements

With many thanks to Carmelo Danisi, Nuno Ferreira, Nina Held and Denise Venturi for their comments and advice.

Cover photograph: Copenhagen Pride parade, 2005, by David M., from gobackpacking.com

Inline photo: Victoria Nevland, Please take me away, https://flic.kr/p/dc19nL