Berkley Center

In the current “age of migration,” scholars have raised concerns about the dimensions of movements of individuals and groups who abandon their country of origin in search of better conditions of life, welfare, and access to fundamental rights, generating an increasing refugee crisis. In many European countries, various macro-phenomena (public safety, financial crisis, rise of populism, crisis of democracy) combined with a “religiosity gap” have provoked skeptic and xenophobic reactions towards migrants and refugee seekers. There is increasing concern about whether and to what extent legal resilience will be able to counterbalance the increasing enforcement of anti-immigration policies.

Migration also has a gendered dimension that requires new strategies of management. In their countries of origin, women do not often enjoy full gender equality. In geographical contexts where religion contributes to building gender roles and state policies fail to provide effective protection against violence, exploitation, and discrimination against women, the only alternative is displacement. However, women, as a minority within a minority, face many difficulties in getting their asylum claims accepted and their experiences as refugees are framed by laws which define the scope and limits of their rights. So, a thought-provoking question is whether the interplay between gender and religion can become a key element of such legal resilience in hosting countries, empowering women in their experience as asylum claimants.

Limits of the International Protection System

Since the Geneva Convention, the system of international protection has given priority to an androcentric narrative, invisibilizing women’s rights and gender-based persecutions. Indeed, the gender-blind definition of refugee status provided by Article 1 of the Geneva Convention and the exclusion of gender from unlawful reasons for disparate treatment outlined in Article 3 have resulted in the establishment of a dividing line between public and private matters, setting the boundaries of international protection jurisdiction. Furthermore, the political intent to avoid overexpansion of the application of the Geneva Convention has marginalized women in “the public discourse concerning international protection.” However, a gendered perspective has been gradually incorporated into international protection. Indeed, the Istanbul Convention emphasized the existence of a gendered dimension of persecution, imposing a duty upon states to grant international protection to asylum seekers who are victims of gender discrimination, violence, and persecution.

Furthermore, the United Nations Human Rights Council (UNHRC) underlined the nexus between socially and culturally built rules defining status, identity, role, and the risk of female persecution in legal contexts where there has been a return of religion in the public sphere. Here, gendered migration is strictly linked with religious intolerance, discrimination, and even persecution in the country of origin: women are subject to double vulnerability, giving rise to intersectional persecution.

In legal contexts where the relationship between the sacred and the secular is quite blurred, the link between politics and religion has been revitalized and governments have often used religion for political gain, reinforcing political choices in contradiction with Western secular values. The enforcement of gender policies reduces female identity to her traditional status, role, social responsibilities, and duties in a patriarchal society. “Rebellious” female behavior within this code of conduct can expose a woman to social isolation or private penalties which are neither prevented nor punished by the state. So, the boundary between discrimination and persecution becomes narrow: combined forms of discrimination may disproportionately affect women or even generate specific gendered harm.

In the case of asylum claims, an investigation focused on the concrete circumstances of the case is required. The effective ability of state authorities to prevent third-party persecutory and discriminatory conduct against women should be seriously investigated, with a view to emphasizing the link between religion and gender as a key driver of stronger international protection for asylum seekers.

For many years, the implementation of international protection in the Italian legal framework, as in other member states, has been entrapped between a strong need for effective enforcement of international and European standards and the pressing domestic interest to limit the access of foreigners within the territorial borders of a state.

Through a multi-step analysis, the element of credibility of an asylum seeker has played a role in filtering the select asylum seekers’ claims that deserve the start of a judicial inquiry. A survey of case law demonstrates that for many years courts have been reluctant to accord refugee status in cases concerning gendered violence (such as forced marriage and rape), granting a lower level of protection (that is, subsidiary protection) to female asylum seekers. Furthermore, scholars have underlined how the rise of populist forces has implied a significant impact to the introduction of more restrictive anti-immigration laws and securitization of borders in recent years.

A Gender-Sensitive Approach

In 2017, the Italian Court of Cassation reversed this traditional view, adopting a new and promising judicial gender-sensitive approach. The case was of a Nigerian Christian woman who abandoned her country of origin in order to avoid a forced marriage with her brother-in-law, imposed on the basis of religious-customary law. Because of her refusal, she was expelled from her house, deprived of her parental rights over her children and of her property, and was persecuted by her brother-in-law. The Court of Appeal of Bologna rejected the woman’s claim of persecution, arguing that she was allowed to get away and escape the application of customary rules, granting her mere subsidiary protection. Reversing the judgment of the lower court, the Court of Cassation held that the woman was subject to persecutory acts, as they were serious enough to undermine her fundamental human rights, because of their nature and frequency, and they were aimed at targeting the claimant because of her gender.

Not only did the court refer to the Istanbul Convention, but also to the 2002 UNHRC Guidelines. The court emphasized that in certain geographical contexts, women are exposed to penalties for their refusal to comply with their role according to a religious code of conduct. Such a risk can provoke a woman’s founded fear of persecution, as her refusal to comply with a religious and/or customary code of conduct is perceived as adherence to “unacceptable” religious convictions.

As a matter of fact, the claimant was subject to persecution because of her refusal to comply with customary law, and was deprived of her fundamental rights. Although she appealed to local authorities, they were unable to provide effective protection. She was, indeed, allowed to escape customary laws, on the condition that she renounce her property and her parental rights, but continued to be subject to her brother-in-law’s threats and harassment. So her leaving the country of origin could not be considered as a free choice, as the lower court argued. According to the Court of Cassation, the case found coverage under the Convention of Istanbul and the Italian legislation, as a preliminary requirement of access to refugee status is the founded fear of personal and direct persecution in the country of origin because of race, nationality, religion, and/or membership in a specific social group. In the case concerned, the claimant was subject to persecutory acts against a specific gender. Furthermore, according to Article 5 of the legislative decree no. 251/2017, non-state actors can be considered liable for persecution where state authorities do not provide appropriate protection to the victim.

In the Italian context, the above-mentioned judicial reasoning has given an important contribution to the identification of gender persecution. It has boosted a new judicial approach, according to which gender-based violence is no longer deemed a private matter and can give rise to an infringement of human rights. As the court seriously considered the subjective and objective circumstances of the case, the nexus has been emphasized between persecution and structural gender-based discrimination. Since the 2017 judgments, on several occasions, the Court of Cassation and lower courts (Court of Bologna, 15333/2018; 15080/2018) have reiterated the reasoning that forcing a woman to comply with religious rules connected with her gender is a serious infringement of human dignity when domestic authorities do not provide appropriate protection. It can be considered a gendered persecution, enabling a woman to access international protection.

The above-mentioned cases show how courts can become the main guardians of legal resilience, with a view to preserving fundamental rights which are at the core of a democratic society and restoring the hierarchy of interests concerned against anti-immigration populist waves. The judicial adoption of such an intersectional perspective can boost migrant women’s international protection in hosting societies and counterbalance disparate treatment in the country of origin, in full compliance with Article 10 of the Italian constitutional text. Furthermore, this intersectional perspective could facilitate a change of paradigm from the traditional narrative of migrant women as victims in need of charitable protection to the acknowledgment of women as main characters in displacement processes, whose fundamental liberties and dignity deserve full protection.