Blog post by Victor Sibaja, a Costa Rican attorney who holds an LLM in International Law from the University of Cambridge. Victor is currently a staff attorney at the Jesuit Migrant Service, UNHCR’s partner for legal protection in Costa Rica.
Many Central American women, particularly from Honduras and El Salvador, face risk of persecution at the hands of their partners and former partners. In many cases these men have ties with gangs like MS-13 and 18th Street, which often makes it impossible for these women to find any form of protection in their countries of origin. Even when persecutors are not gang-affiliated, many victims are not able to secure adequate state protection (see here, and here).
Salvadoran and Honduran women fleeing domestic violence may face significant barriers when seeking international protection in Costa Rica. Under Costa Rican refugee law, asylum seekers requesting protection on gender-based grounds must prove the exhaustion of domestic remedies by all possible and reliable means or, failing that, proof that the state has not acted with due diligence or is not willing or able to give such protection (Article 13 of the Refugee Regulations). International protection on other grounds does not require such evidence. This requirement, alongside the application of a higher evidentiary threshold, bars many women in need of international protection from acquiring refugee status. This blog sheds light on the challenges Costa Rican refugee law presents to gender-based claimants, more specifically domestic violence cases. Firstly, I will examine the protection afforded to these women under international human rights and refugee law. I will then discuss the challenges Costa Rican law presents to gender-based claimants. Finally, I will set out conclusions.
Gender-based claims under international human rights and refugee law
The 1951 Refugee Convention does not enshrine gender as a protected ground. In some jurisdictions, refugee protection has been granted under the “particular social group” clause by means of expansive interpretation (Jimenez). In some others, like Costa Rica, gender has been made a protected ground under domestic law (Article 3 of the Refugee Regulations).
The road for domestic violence victims seeking international protection has not been an easy one. Until recently, this harm was not considered worthy of refugee protection. It was rather – and surprisingly still is – considered a form of private harm (Seith). Feminist scholars make interesting arguments regarding the reasons behind this. Firstly, they argue that harmful gender stereotypes invalidate the seriousness of domestic violence cases (Seith; Marsden; Akbari and Vogler). Secondly, they argue that decision makers are too concerned about the possibility of opening the floodgates to a vast number of asylum seekers arriving at their jurisdictions (Mullally; Marsden). Perhaps these concerns have hampered efforts for gender to make its way into refugee treaty law (Masetta-Alvarez).
International human rights law has been a venue to address protection concerns of domestic violence victims. Although the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) does not provide for any form of specific protection for refugee women, its supervisory Committee has set out relevant procedural safeguards through its case law and recommendations. Of relevance to this discussion, CEDAW has found that a systematic interpretation of the Convention alongside the 1951 Refugee Convention requires states to extend refugee protection when there is a reasonable likelihood of persecution, rather than the higher threshold of “probability” required for other claims. Whereas reasonable likelihood requires proof of “good grounds”, probability requires claimants to prove that persecution would be more likely than not (Immigration and Refugee Board of Canada). The Committee has also established that states have a duty to carry out an individualized assessment of the well-founded fear of persecution that the applicant would face. States cannot rely on a number of previous inconsistent statements to refuse a gender-based claim altogether (General Recommendation 32; R.S.A.A. v. Denmark).
Some of the Committee’s views on procedural safeguards apply to all claims regardless of the protected ground. For instance, the shared burden of proof and the credibility assessment criteria are pivotal procedural rules in refugee law (UNHCR RSD Handbook 2019). The reasonable likelihood and the active role of the examiner in gathering evidence go beyond refugee law rules and should thus have special attention paid to them in gender-based claims. These rules might not be applicable to all states on the basis of the principle of relativity of treaties and the reception of international law domestically. Costa Rica, however, is a State Party to the CEDAW and Refugee Convention and follows a monist approach to international law, which means that international law is automatically incorporated into the domestic system. It goes even further when it comes to international human rights instruments that grant greater protections than the Costa Rican Constitution, as they enjoy supra-constitutional status and are immediately enforceable regardless of their ratification by government. I will now turn to the implementation of these protections to refugee women under Costa Rican refugee law.
Challenges of Costa Rican refugee law
As mentioned previously, Article 13 of the Refugee Regulations raises the bar for gender-based claims. It requires the claimant to produce evidence regarding exhaustion of domestic remedies or, alternatively, the unwillingness or inability of her state to provide protection. This provision seems troublesome under international law for three reasons.
Firstly, the aforesaid provision reverses the burden of proof on the claimant. It is for her to show that domestic remedies have been exhausted or that, even if sought, the state would not have been willing or able to protect from persecution. This requirement is not only at odds with cornerstone refugee law safeguards, but is also especially damaging for women fleeing domestic violence. Women in these situations may be reluctant to seek any form of protection due to fear of reprisals at the hands of their perpetrators or stigmatization by state officials or the community. Additional burdens may be faced when victims are unaware of the existence of these mechanisms. This could be a common scenario for Honduran women as high levels of illiteracy are still an issue in Honduras.
Secondly, it seems to require a degree of certainty of persecution, when in fact reasonable likelihood would suffice. By showing that domestic remedies have been ineffective in shielding from persecution by “all possible and reliable means”, women are in fact proving that persecution is almost certainly going to take place upon return. This burden of proof, however, is not required for other claims, let alone gender-based claims.
Finally, this provision seems especially problematic when taking stock of the barriers already faced by women. Evidence suggests that women face greater hurdles to establish the credibility of their claims (Mullally). It is particularly so when it comes to domestic violence cases as there is still a widespread belief that these claims are not worthy of asylum protection (Marsden).
The hurdles faced by women fleeing domestic violence seem to be consistent with empirical data. The Refugee Unit has reported that on average in the past six years gender-based claims represented 4.92% of all successful applications annually (Circular DGUR-492-2021). Data from the Administrative Migratory Tribunal shows that in that same timeframe, out of 311 cases that were reversed on appeal, only twenty-one were gender-based claims. This means that only 6.75% were successful (Guideline 365-TAM-2021). This number comes as a surprise as UNHCR Eligibility Guidelines for El Salvador and Honduras show that women fleeing domestic violence are amongst the most in need of international protection in these countries. Domestic violence is also cited by the Administrative Migratory Tribunal as amongst the main reasons for which Honduran and Salvadoran nationals seek asylum in Costa Rica (Guideline 365-TAM-2021).
It could be argued that asylum applications are refused for a number of reasons. For instance, some asylum applications are rejected because of late disclosure of the fear, which is interpreted as lack of credibility (Gender-related guidelines). However, this is a hurdle faced by many asylum seekers. The reason why it seems to be a particular issue for gender-based claimants is the higher evidentiary threshold as stipulated by Article 13 of the Refugee Regulations. Credibility concerns might not necessarily prevent other claimants from proving probability of persecution, but make it nearly impossible for gender-based claimants to establish that persecution is almost certain to take place upon return.
Relocation alternatives could also be a reason for rejection, but this argument would seem to fail in cases of persecution by gang-affiliated partners. Under Costa Rican refugee law the examiner is bound to analyze internal relocation alternatives only when he/she is satisfied that domestic remedies would not be effective or available in the instant case. Because of the territorial size of El Salvador and Honduras, and the ability of gangs to operate country-wide in both countries, UNHCR has found that internal flight would not be an option for these women. These criteria have been followed in several refugee claims from El Salvador and Honduras. This means that once unavailability or ineffectiveness of domestic remedies has been established, it would seem rather difficult for an examiner to reject a gender-based claim on the basis of relocation alternatives.
Finally, it could well be the case that refugee protection is not granted in accordance with the exclusion clause of the Refugee Convention – Article 1F, which excludes persons who have committed particular kinds of serious crimes. However, further research would have to be carried out to determine the number of cases in which this clause has been invoked. This would help to determine whether exclusion clauses have been a relevant reason for declining refugee protection to gender-based claimants.
Article 13 of the Costa Rican Refugee Regulations raises concerns under international law. By requiring gender-based claims to meet a higher evidentiary threshold of likelihood of persecution, this provision seems to run counter to protections provided for refugee women under the CEDAW and the 1951 Refugee Convention. This higher evidentiary threshold might have barred many women from securing international protection in Costa Rica as suggested by empirical data. Recognition rates for gender-based claims seem to rank in the lowest percentiles.
Even when a number of reasons would seem to explain why gender-based claimants have not been able to secure protection, it seems that the most reasonable basis to explain why they have little success is Article 13 of the Refugee Regulations. Further research should be able to explore these issues in more detail, which could also shed light on low recognition rates for gender-based claims in other asylum systems such as the US.
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