The Limits of EU Standardization: Legal Approaches to Gender-Based Asylum Claims

• In Event: Citizens Across Borders: The Role of Courts in Migration and Asylum

Abstract

This article examines how European national courts interpret international, supranational, and national law in deciding asylum claims in cases of gender-based persecution. I use a feminist and post-colonial IR lens to build on the work of Michael C. Tolley, who demonstrated that high national courts in Europe rely on EU law and ECtHR rulings to bolster existing rights in national law. By doing so, the courts implement more progressive standards than those required by the EU. Unlike the cases Tolley examines however, gender-based persecution is neither clearly addressed by international or European asylum law nor has its validity as a basis for asylum protection been clearly established by European courts. I hypothesize, therefore, that national courts look not only to other sources of law in determining gender-based asylum claims but to gendered distinctions between private and public spaces and to domestic concerns regarding foreigners, especially people of color, in evaluating the validity of requests for asylum and protection. Rather than leading to more progressive stances on asylum policies or a more standardized approach to asylum law in Europe, these precedents leave European courts with multiple, conflicting, and often discriminatory options for determining the refugee claims of women who have been persecuted as women.

Author

• Patricia Charlotte Rodda, Carroll University