Updates, commentary, training and advice on immigration and asylum law
Evidence and arguments in asylum claims based on gender-based violence
Gender-based violence is an umbrella term used to describe crimes including rape, domestic violence, forced marriage and female genital mutilation. Women who are fleeing gender-based violence from their country of origin and enter the UK can seek protection and claim asylum in the UK on this basis.
As practitioners who work in this area will know, these cases can be complex as past experience and future risk of gender-based violence can be hard to corroborate. Recent changes in immigration law, including the Nationality and Borders Act 2022, have made it even harder for women to be granted asylum on the basis of gender-based violence. As such, it is crucial that when assisting clients with these claims, an effort is made to put forward all the available evidence to support the case, including at initial stages. For ease, we will reflect on a case study and what evidence might be obtained in this case.
What evidence can be put forward on the applicant’s behalf?
As a starting point, due to the nature of these cases, it is essential for Amanda to provide you with detailed disclosure of what happened to her in Namibia. A witness statement should be obtained to cover the events that took place in Namibia, focusing on her forced marriage and her experience of domestic violence.
Due to the fact that domestic violence is very often hard, if not impossible, to corroborate with external evidence, Amanda’s disclosure is material. Obtaining a lengthy statement should also mean that the Home Office does not ask as many questions during the asylum interview.
On this note, anyone working on this disclosure ought to be mindful of the risk of re-traumatising Amanda, by asking her questions around potentially very traumatic past events. A balance should be struck between the need to obtain her detailed account whilst protecting her well-being and mental health.
It is good practice to ensure to obtain and familiarise yourself with information that Amanda has already shared with other professionals (with her consent) and to use this as a starting point so as to avoid her having to repeat things to multiple people. In addition to this, it is important that attempts are made to link Amanda in with a specialist service that can provide her with mental health support, if needed.
Medical, mental health evidence & supporting letters
If Amanda obtained any treatment for injuries in Namibia, efforts should be made to gather any medical reports available. If she has any injuries from the violence, a medical report should be instructed to comment on whether the injuries are consistent with her account of domestic violence.
Similarly, if Amanda has obtained any mental health/counselling support in the UK, supporting evidence of this should be provided. Depending on Amanda’s current circumstances, it might also be appropriate to instruct an independent psychological report, asking a psychologist to comment on her mental health diagnosis and whether her experience of domestic violence is consistent with this. In more serious cases, it might also be beneficial to request an assessment of her suicide risk, as this might be useful to build arguments under article 3 ECHR.
If Amanda is supported by a specialist organisation (such as Women’s Aid or Solace), a supporting letter should be requested, setting out the support Amanda is receiving as well requesting an assessment as to whether, in the service’s view, Amanda is indeed a survivor of domestic abuse.
Objective evidence & expert reports
Even if the Home Office finds Amanda credible and her account plausible, she will still need to prove that the Namibian police cannot protect her from future harm from her husband and that she cannot internally relocate within Namibia to be safe. Because of this, country-specific objective evidence is essential in these cases.
A good starting point is always to look at the Home Office Country Policy notes which, in some cases, might prove useful. Asylos is also a useful resource to look at for objective evidence. However, depending on which country you are looking at, it can be difficult to find strong, up-to-date evidence. In these cases, it might be appropriate to instruct a country expert report to comment on these particular issues, with reference to Amanda’s specific circumstances.
How can the evidence be used and what arguments can be made?
When preparing these cases it is important to check whether country guidance exists that is applicable to your client’s particular circumstances. For instance, for countries like Pakistan, country guidance should be considered to either argue that your client meets the criteria set out in the relevant judgment or to argue why the Home Office should depart from it.
Going back to Amanda’s case, her disclosure and medical/mental health evidence should be used to argue that her account is plausible and that, therefore, she would face a real risk of persecution upon return to Namibia. In addition to this, it will need to be argued that Amanda belongs to a particular social group, and therefore her claim falls under the Refugee Convention. These arguments are now more important than ever – particularly in light of the changes brought in by the Nationality and Borders Act in relation to the interpretation of the Refugee Convention (see here for a useful briefing on how this disproportionately affects women).
Sufficiency of protection?
Moving on to sufficiency of protection, it is often quite a challenge to show that clients like Amanda would not be able to access protection from the state in their country of origin. The Home Office will very often argue that countries like Namibia are taking proactive steps in improving the protection for women at risk of harm. To counter this, it will need to be argued that, based on Amanda’s specific experience and future fear, the Namibian police would be unable and unwilling to assist her upon return.
To corroborate this, it is essential to refer to the objective evidence mentioned above and, when required, obtain an expert report to show this if the objective evidence accessible is otherwise insufficient. An expert report might also be essential in cases where other factors (such as tribal or customary norms) are at play and objective evidence cannot be obtained to support this.
Addressing internal relocation
Finally, even if the Home Office finds that Amanda is credible, has a genuine fear and will be at risk of persecution and cannot access protection in Namibia, she will still need to show that internal relocation would not be an option in her case. From my experience, in most gender-based violence cases, it is difficult to show that it would be unsafe for a woman to relocate in terms of the perpetrator being able to find her (especially in large countries and in cases where the perpetrator has not particular powerful role or influence).
In these cases, it will need to be shown that internal relocation would be unduly harsh for Amanda, in line with the cases of Januzi v Secretary of State for the Home Department  UKHL 5 and Secretary of State for the Home Department v AH (Sudan)  UKHL 49. Even although the courts have made it clear that this is a high threshold to meet, there are a number of things that can play in Amanda’s favour. Essentially, it will need to be argued that, because of her vulnerabilities and circumstances, Amanda would struggle to cope, if she was returned to Namibia and that she could not lead a normal life. Things such as mental health issues and medical issues are key in this assessment.
In addition to this, objective evidence regarding potential obstacles in accessing basic things like housing, employment and healthcare should also be explored. If Amanda has any children, would she be able to adequately support them on return? Would they have access to education? All of these issues will need to be considered and used to build a holistic argument as to why it would be unduly harsh for Amanda to relocate. If an expert report is being obtained, these questions should also be put to the expert for comment and their view used to corroborate the argument.
Gender-based violence asylum claims can be tricky. There are many hurdles that women face when arguing that they should be granted asylum in the UK, as explored in one of our previous articles here (in relation to credibility). Because of these complexities, it is essential to front-load these claims during the initial asylum stage and present to the Home Office as much supporting evidence as possible. These cases are also very country-specific so attention should be paid to the specific circumstances of the country of origin in question and the protections (or lack of) afforded to women facing gender-based violence.
Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.
Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.