By Angelina Kaneva
International Women's Initiative Staff Writer
Equal access to justice stands at the very heart of any responsible social democracy and plays a central role in ensuring respect for a person’s economic, social and cultural rights. Yet, there are a number of existing barriers to effective access to justice, the most serious of which are the lack of access to lawyers for the poor, the lack of appropriate laws in place, and the systematic barriers both in the justice system and in police accountability. Sadly, all of these could be encountered in the Global North just as often as they could in the Global South.
This gap between ‘law-in- the-books’ and ‘law-in- action’, especially with regard to the first obstacle, is mostly addressed through the work of pro-bono lawyers and legal aid attorneys who act as a driver of positive social change and can be an incredibly valuable asset in legal systems that mainly cater for the rich and powerful.
The prominent English barrister Michael Mansfield QC argues that access to justice is all about ‘protecting ordinary and vulnerable people and solving their problems’ and encompasses the recognition that ‘everyone is entitled to the protection of the law and that rights are meaningless unless they can be enforced’. The latter is very true – there is hardly any point in continuing to enact countless conventions and covenants promoting and protecting civil and political as well as economic, social and cultural rights if the effective means of enforcement and redress are denied to those unable to afford them.
However, Mansfield’s definition seems to be viewing the whole concept entirely through the lens of the law, thus failing to recognise one of its other important aspects – namely that access to justice does not simply equate to litigation and access to courts but is rather a much broader concept encapsulating a number of social justice components, such as access to healthcare, education and housing, the right to a fair treatment in accordance with the rule of law, knowledge of one’s basic rights, economic empowerment, access to ombudsmen, advice bureaus and competent public authorities, adequate police law, and so on and so forth (the list goes on forever).
We, at International Women’s Initiative, believe that the scope of power of pro-bono lawyers is oftentimes far too narrow for them to be able to respond adequately to the myriad needs of the most vulnerable and marginalised sections of society. As a result, choosing to follow the ‘legal route’ through accessing free legal aid provided by those professionals does not necessarily lead to breaking the cycles of poverty, discrimination and social exclusion.
This is especially true in the case of women seeking asylum. According to official UNHCR statistics, women comprise at least half of any refugee, internally displaced or stateless population. As such, women asylum seekers experience many similar problems and have many of the same needs as male asylum seekers do – protection against forced return, respect for their human rights while in exile and assistance in finding durable solutions to their plight, just to name a few.
However, they also have additional special needs while waiting for their asylum claim to be processed. In the often chaotic conditions of large-scale refugee emergencies, women are extremely vulnerable to sexual and gender-based violence. They frequently bear responsibility for other, even more vulnerable, family members such as children and the elderly. Women are often separated from male family members who may be taking part in the conflict or staying behind to guard the family’s property.
In camp- and reception centre- situations, the disruption of traditional patterns of decision- making may leave women without a voice in matters that affect their daily lives and their security. For example, if men, or a certain faction of men, control the distribution of aid, women can be forced to exchange sexual favours for food. They may also be at risk of sexual violence from other refugees and asylum seekers, the local population, nearby combatants and the police and security forces in the country of asylum.
Apart from legal impediments, there are a number of procedural obstacles in the process of status determination which lawyers do not have the capacity to address. In countries with individual status determination procedures, women travelling with male family members may not be given an opportunity to present their own claim, even if the man’s claim is denied. Women may also find it more difficult to speak frankly to a male interviewer or through a male interpreter, particularly if some aspect of their international protection claim involves sexual violence or questions of family honour.
Although there is a growing body of jurisprudence on women’s asylum requests, including gender-related claims, and, admittedly, more and more countries are starting to issue guidelines on how to examine such requests, the dire reality is that legal aid organisations representing women in asylum claims end their role as soon as a decision on their status determination has been issued irrespective of whether refugee status has been granted or denied.
There is no one to follow up on the clients who stayed in the recipient country and check whether they managed to find affordable accommodation, whether they have health care, whether they were able to secure a job, learn the local language, solve their psychological problems or address the trauma resulting from the violent situations they fled from…
This is where interdisciplinary advocacy and the adoption of a more holistic approach to access to justice come into play. They involve a ‘client-centred and interdisciplinary model of public defence that addresses the circumstances driving poor people into [the situation they are in] and the consequences of that involvement by offering criminal and civil legal representation, social work support, and advocacy in the client’s community’.
Thus, legal and social service organisations who are keen to apply this model reassess their methodology and add more interdisciplinary teams to their staff – such as social workers, psychologists, immigration lawyers, housing specialists and domestic violence attorneys. What we need in order to be able to help female asylum seekers is precisely this – a more holistic way of advocating for asylum seekers’ rights and a more multi-faceted understanding of what is involved in the process of delivering justice.
We need to begin understanding the needs of the communities we work with as a whole and guarantee that they are on track to achieve their goals, whether these are integration, employment, education or rising out of poverty. We need to be asking ourselves: Where do our clients come from? What factors in their environment have led to their legal issues and what can we do to best tackle the root problems at the community level?
Implementing such models of thinking (and acting!) in our work can benefit this target group immensely. Even if we are unable to assist clients with the range of other non-legal problems that they may have, we still need to take the time and interest in connecting them with other community service providers which could be better equipped to handle their complex situations and provide assistance in a long-term sustainable manner.
Ultimately, breaking the cycle of exclusion and vulnerability extends well beyond simply solving a person’s legal problems. So let’s make this a movement and advocate for a more holistic access to justice for women seeking international protection.