Nora Honkala is a final year PhD Candidate and a Teaching Fellow at the School of Law, University of Reading. Her research concerns asylum seeker women’s gender-based persecution claims in the UK.
On 16th June 2014, forced marriage became a criminal offence in England and Wales. The Anti-Social Behaviour, Crime and Policing Act 2014 specifies a maximum prison sentence of seven years for the offence. David Cameron declared in 2011 that his government will criminalise forced marriage. Following repeated consultations on the matter, the provisions criminalising forced marriage are now law.
The initiative has been strongly campaigned for by Karma Nirvana, which is headed by Jasvinder Sanghera. However, the initiative has been strongly opposed by other women’s rights NGOs, such as Southall Black Sisters, End Violence Against Women, Rape Crisis, and Women’s Aid. Opposition arose from fears that it will not help women on the ground that do not wish to criminalise their family members or relatives. Furthermore, criminalisation might deter them from seeking support. Instead, organisations opposing criminalisation have repeatedly called for improved funding of existing support frameworks. Support frameworks that have been extensively under threat with current government funding cuts for NGOs.
Given these concerns, it remains to be seen how criminalisation in practice will change the landscape of protecting the rights of victims of forced marriage.
Recently the government has come under intense scrutiny for the so-called hypocrisy with which its Foreign Office affirm their support for victims of sexual violence in conflict while the Home Office desperately fails in the treatment of those same women when they seek asylum in the UK.
Women asylum seekers who flee forced marriages form a small portion of women asylum seekers. The criticism of ‘dis-jointed’ thinking about violence against women, that were voiced about The Global Summit to End Sexual Violence in Conflict, apply to the treatment of asylum seeker women fleeing forced marriages as well. My examination of these women’s appeal claims in the Upper Tribunal (and its predecessors) shows the limited ways in which the adjudication system understands violence against women in the asylum context.
As the government recognises, forced marriage is a human rights violation. In international refugee law, forced marriage can constitute gender-based persecution if the State is unwilling or unable to offer protection. Refugee determinations are made on an individual basis according to principles of international refugee law, national immigration laws and norms.
Feminist academics and NGOs have repeatedly criticised the application of these norms in practice. Repeated criticismsa have included gendered critiques of the failures of the decision-making in the first-instance to the more general critiques of the androcentric interpretations of the refugee definition. Feminists have pointed to the ways in which the current asylum system fails to evaluate women’s asylum seekers claims in a gender sensitive manner.
In my examination of forced marriage-based asylum appeals from 2004 till 2014, I found that adjudicators are systematically framing asylum seeker women’s claims in a problematic manner. By framing forced marriage as a purely “personal problem”, rather than understanding it as a symptom of larger patterns of violence against women, adjudicators enable state complicity in women’s persecution. This failure has been enabled adjudicators – by privatising women’s harm – to find the internal relocation option as being available to them.
In addition to the problematic gendered assumptions in the decision-making, there are also assumptions about “culture”. These assumptions impair the recognition of forced marriage as a serious human rights violation with its roots in the inequality of women as opposed to “private matters of the family”
If the British government is serious about women’s rights, as William Hague’s support of the important project of addressing sexual violence in conflict would appear to say, it needs to take the rights and experiences of refugee women seriously.
To show real commitment, a start would be to re-instate the carelessly scrapped Gender Guidelines to the Upper Tribunal.