Persecution

Persecution

Nexus between persecution and protected grounds and the Refugee Issues

As published by the UNHCR in relation to Nexus between persecution and protected grounds: Assuming that the necessary element of persecution is established and the definitional requirements of membership in a particular social group are met, a victim must still show that the persecution feared is on account of the characteristics defining membership in a particular social group.130 One of the principle problems for victims of trafficking seeking inclusion in the category of particular social group on the basis of gender-related persecution is establishing this nexus.131 A pattern can be seen in United States immigration decisions of treating claims by women victims of trafficking as “personal, criminal problems.”132 In the case discussed above involving the kidnapping, rape and threatened trafficking of a teenage Albanian girl, the immigration judge failed to find a connection between the protected grounds and the acts of persecution because they were simply personal, criminal acts directed at the victim.133

In response to another young Albanian woman's claim of attempted kidnapping for sexual exploitation, the immigration judge acknowledged that the evidence showed that Albania had an “overwhelming problem with the trafficking of women” but that the requisite nexus was not established because it was likely that there were many people in the victims situation who were harassed in the same manner as the victim.134 As Stephen Knight explains, the existence of a large scale criminal problem in trafficking cases should not affect the determination and furthermore, “[t]he requirement that 'at least one central reason' for the harm need be linked to one of the five grounds does not mean that the existence of other potential reasons – such as monetary gain – is a barrier to a grant of protection.”135

The United Kingdom Gender Guidelines address the issue of pervasive violence against women in determining whether harm qualifies within the analysis. The Guidelines caution that “[t]he fact that, within a particular country, violence and/or discrimination against women is endemic and/or socially/culturally accepted is irrelevant when determining whether gender-specific forms of harm amount to 'serious harm'.”136

This principle applies also to the establishment of the nexus between persecution and a protected ground; for example, evidence of large-scale crimes against members of a certain religion does not diminish the fact that individuals of that religion are targeted because they possess a characteristic identifying them as members of that religion. The analysis should not be any different for victims of trafficking claiming persecution on gender-related grounds. The presence of wide-spread gender-related persecution, whether perpetrated by the State or private individuals, where State protection is deficient, is still persecution.


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