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Unsustainable: the quality of initial decision-making in women’s asylum claims

Unsustainable: the quality of initial decision-making in women’s asylum claims

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Published by LGBT Asylum News
Report by Asylum Aid
Report by Asylum Aid

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Published by: LGBT Asylum News on Feb 05, 2011
Copyright:Attribution Non-commercial


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Key fndings

• Internal fight alternative was referred to in 12 cases.

• Internal fight alternative was generally considered in a cursory manner, without any detailed
engagement with the specifc circumstances of the applicant.


The Gender AI directs case owners that when considering the reasonableness of relocation he/

she may need to take into account gender issues. This was expressed in the previous API and
elaborated on in the revised AI.230

The issue of IFA arose in just over one third of the refused cases
examined as part of the research. Where it did arise, it was considered in a cursory manner and
was not substantively assessed. In the majority of cases, the underlying argument was that as the
credibility of the applicant’s claim was rejected, it would be safe for her to return to her place of
residence and that there was no need to substantially consider the issue of IFA.

Rachel stated during her asylum interview that due to her mixed ethnicity, the only place in the DRC
where she could live would be Goma. The decision concluded that “as aspects of your claim have
been rejected, internal relocation is not considered necessary but if you wish to internally relocate,
this is a viable option for you”. In fact, the applicant’s mixed ethnicity was never rejected and

therefore internal relocation should have been considered, regardless of any other fndings made.
In a subsequent appeal hearing, the immigration judge made a specifc fnding on the issue stating
that: “she [the Appellant] says that the only place to which she could go is Goma because of her

mixed ethnicity and I accept that to be the case. Internal relocation within the DRC would not be a
viable option and, in any event, it would be unduly harsh to expect her and her son who is under age

to accompany her and start a new life within the country. Her Rwandan/Congolese mixed ethnicity

and her Tutsi background would make it impossible for her to do so in safety”.

The viability of IFA was often considered ‘in the alternative’. For example, in the case of a lesbian
from Uganda, it was suggested that “even if it were accepted that you are a lesbian, it is considered
that you could relocate to another area of Uganda”. In the majority of cases it appeared that IFA
was considered only to ‘cover all bases’ in the event of the decision being appealed to the Tribunal.
The UNHCR has previously commented that decisions based on ‘alternative’ arguments tend not to

suffciently engage with case specifc facts.231

Consideration of IFA did not take into account objective evidence or the concept, taken from case
law, of relocation being unduly harsh. For example an applicant from Iraq who feared that her brother
might kill her was told she could “seek protection from other family members such as your sister
and her husband”. It was also suggested that she could relocate by staying in a shelter for victims
of domestic violence in another area of Iraq. Not only did the COI show that no such shelters were
available, but no consideration was given as to whether such relocation would be ‘unduly harsh’
when taking into consideration all the relevant circumstances pertaining to the applicant and her
country of origin.232

In fact the UNHCR had produced detailed Eligibility Guidelines for Assessing

230 UKBA Asylum Policy Instruction, Gender Issues in the Asylum Claim, 2004, revised October 2006, under ‘Internal
Relocation’; UKBA Asylum Instruction, Gender Issues in the Asylum Claim, March 2004, revised September 2010,
para 5.2, pp. 14-15.
231 UNHCR, Quality Integration Project First Report, undated, p. 3.
232 The test formulated by Lord Bingham in Januzi v Secretary of State for the Home Department [2006] UKHL 5.

Unsustainable: the quality of initial decision-making in women’s asylum claims


the International Protection Needs of Iraqi Asylum Seekers which contained detailed information

about specifc risk categories, including lone women, and recommended a two-stage approach to
the question of IFA: whether such relocation is relevant; and if so, whether it is reasonable. 233


reference was made in the decision to these guidelines.

A more systematic approach was taken by the immigration judge when considering the appeal.
Prompted by counsel for the Appellant, who made detailed submission on the issue of IFA, after

accepting that the applicant’s account was credible, and that no suffcient state protection would

be available to her in her home area, the immigration judge proceeded to systematically analyse
whether relocation to different areas of Iraq was relevant and reasonable. After examining the
Appellant’s circumstances, the country situation and the guidelines provided by the UNHCR on
the country situation, he found that this option was not available. He concluded by examining the
possibility of relocating to a women’s shelter. He accepted that requiring the appellant to remain
in such a shelter would amount to the ‘Anne Frank principle’, described thus by Pill LJ in HJ (Iran)
[2009] EWCA Civ 172:

“ It would have been no defence to a claim that Anne Frank faced well-founded fear of persecution
in 1942 to say that she was safe in a comfortable attic. Had she left the attic, a human activity she
could reasonably be expected to enjoy, her Jewish identity would have led to her persecution.
Refugee status cannot be denied by expecting a person to conceal aspects of identity or suppress
behaviour the person should be allowed to express.”234

The ‘Anne Frank principle’ serves to illustrate how concepts that were relied upon to refuse claims
within the research sample are not, on examination, a reasonable basis upon which to refuse a
claim. When examining the possibility of IFA, case owners are expected to take into consideration
the particular circumstances of the individual woman’s case.235

In the case of the applicant
discussed above, the immigration judge accepted, based on the particular circumstances of the
case, that it would be ‘unduly harsh’ to expect her to relocate to a women’s shelter or to any other
area within Iraq. The appeal was allowed and the applicant was recognised as a refugee.


In the research sample, IFA was considered in a cursory way with inadequate consideration being

given to women’s specifc circumstances, to access and effectiveness of state protection and to

country of origin information about the situation for women. In addition, there was evidence that the
“undue harshness” test was not being appropriately applied.

233 UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of Iraqi Asylum Seekers (Geneva:
UNHCR, 2009), pp. 144-151, 195-196, 42-43.
234 HJ (Iran) & Anor v Secretary of State for the Home Department [2009] EWCA Civ 172 (10 March 2009), para. 10.
235 UKBA Asylum Policy Instruction, Gender Issues in the Asylum Claim, March 2004, revised October 2006, under
‘Internal Relocation’; UKBA Asylum Instruction, Gender Issues in the Asylum Claim, March 2004, revised September
2010, para 5.2 pp. 14-15.


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