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The use of the “male network” as a form of protection under Swedish asylum adjudication - A gender-sensitive analysis of Article 1.A (2) of the 1951 Refugee Convention

Tesfay, Jenni LU (2017) LAGM01 20171
Department of Law
Abstract
The availability of a “male network” of family members and/or friends may be decisive for the outcome of a woman’s asylum application. As it is recognised under the jurisprudence of ECtHR and Swedish asylum adjudicators that women, who originates from countries where societal structures maintain women’s reliance on men, are particularly vulnerable. The Migration Agency, the Swedish decision-making administrative authority in asylum cases, has in its published policy documents stipulated that the living conditions of women originating from Afghanistan and Somalia may amount to “persecution for reasons of gender” within the meaning of the refugee provision of the Swedish Alien Act.

This thesis examines to what extent the availability of... (More)
The availability of a “male network” of family members and/or friends may be decisive for the outcome of a woman’s asylum application. As it is recognised under the jurisprudence of ECtHR and Swedish asylum adjudicators that women, who originates from countries where societal structures maintain women’s reliance on men, are particularly vulnerable. The Migration Agency, the Swedish decision-making administrative authority in asylum cases, has in its published policy documents stipulated that the living conditions of women originating from Afghanistan and Somalia may amount to “persecution for reasons of gender” within the meaning of the refugee provision of the Swedish Alien Act.

This thesis examines to what extent the availability of “male network”, as decisive factor, has a legal basis under Article 1.A. (2) of the 1951 Convention and Swedish refugee law.

To achieve this aim, the ECtHR and Swedish Migration Courts adjudication on the “male network” concept is analysed and the refugee provision of the Convention will be interpreted in a gender-sensitive manner in accordance with the general customary rule of interpretation as stipulated under the VCLT. The interpretation explored will be objective and contextual, by employing a human rights based approach, which takes into account relevant human rights instruments such as the ICCPR, ICESCR and the CEDAW. Further, this paper not only intends to provide an interpretation that is legally valid but one that is rational and empirically sound, why the analysis is guided by a feminist theoretical framework.

In this study three main findings are reached. First, the availability of a “male network” does not impact the assessment of the protection grounds and the nexus clause of the refugee provision. Hence women, with or without the access to a male network, who risks gender-related persecution, do so for reasons of political or religious belief, or membership of a “particular social group”. Second, even if there is a “male network” available, the restricted life of women in patriarchal societies may be sufficiently severe to constitute persecution within the refugee definition. Further, a woman cannot be expected to conform to roles or behavioural codes prevailing in the country of origin in order to avoid persecution, as such living conditions per se constitutes persecution, and because a refugee cannot be expected to conceal her political opinion, religious belief and/or identity as member of a “particular social group”. Third, the “male protection network” cannot substitute “state protection” under the refugee definition and is not relevant in the assessment of “internal protection alternative”. Further, such network as a form of protection is inadequate, as it must be considered ineffective and lacks durability. (Less)
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author
Tesfay, Jenni LU
supervisor
organization
course
LAGM01 20171
year
type
M3 - Professional qualifications ( - 4 Years)
subject
keywords
Refugee law, International Human Rights Law, Swedish Asylum Law
language
English
additional info
jenni.tesfay@gmail.com, 0727195774, 9005162467, examensseminarium 1 juni, 2017.
id
8908855
date added to LUP
2017-09-18 09:25:33
date last changed
2017-09-18 09:25:33
@misc{8908855,
  abstract     = {The availability of a “male network” of family members and/or friends may be decisive for the outcome of a woman’s asylum application. As it is recognised under the jurisprudence of ECtHR and Swedish asylum adjudicators that women, who originates from countries where societal structures maintain women’s reliance on men, are particularly vulnerable. The Migration Agency, the Swedish decision-making administrative authority in asylum cases, has in its published policy documents stipulated that the living conditions of women originating from Afghanistan and Somalia may amount to “persecution for reasons of gender” within the meaning of the refugee provision of the Swedish Alien Act.

This thesis examines to what extent the availability of “male network”, as decisive factor, has a legal basis under Article 1.A. (2) of the 1951 Convention and Swedish refugee law. 

To achieve this aim, the ECtHR and Swedish Migration Courts adjudication on the “male network” concept is analysed and the refugee provision of the Convention will be interpreted in a gender-sensitive manner in accordance with the general customary rule of interpretation as stipulated under the VCLT. The interpretation explored will be objective and contextual, by employing a human rights based approach, which takes into account relevant human rights instruments such as the ICCPR, ICESCR and the CEDAW. Further, this paper not only intends to provide an interpretation that is legally valid but one that is rational and empirically sound, why the analysis is guided by a feminist theoretical framework.

In this study three main findings are reached. First, the availability of a “male network” does not impact the assessment of the protection grounds and the nexus clause of the refugee provision. Hence women, with or without the access to a male network, who risks gender-related persecution, do so for reasons of political or religious belief, or membership of a “particular social group”. Second, even if there is a “male network” available, the restricted life of women in patriarchal societies may be sufficiently severe to constitute persecution within the refugee definition. Further, a woman cannot be expected to conform to roles or behavioural codes prevailing in the country of origin in order to avoid persecution, as such living conditions per se constitutes persecution, and because a refugee cannot be expected to conceal her political opinion, religious belief and/or identity as member of a “particular social group”. Third, the “male protection network” cannot substitute “state protection” under the refugee definition and is not relevant in the assessment of “internal protection alternative”. Further, such network as a form of protection is inadequate, as it must be considered ineffective and lacks durability.},
  author       = {Tesfay, Jenni},
  keyword      = {Refugee law,International Human Rights Law,Swedish Asylum Law},
  language     = {eng},
  note         = {Student Paper},
  title        = {The use of the “male network” as a form of protection under Swedish asylum adjudication - A gender-sensitive analysis of Article 1.A (2) of the 1951 Refugee Convention},
  year         = {2017},
}