Towards Contextual Intersectionality: An Analysis of the Common European Asylum System

Author:Fiona Argenta
Position:Receives an LLB in European Comparative Law from Maastricht University in 2019, graduating summa cum laude
Pages:284-311
© 2020 Fiona Argenta and Dublin University Law Society
TOWARDS CONTEXTUAL INTERSECTIONALITY: AN
ANALYSIS OF THE COMMON EUROPEAN ASYLUM
SYSTEM
FIONA ARGENTA*
Introduction
While there has been considerable focus placed on the political
implications of the EU ‘refugee crisis’, the multidimensional barriers
encountered by asylum seekers throughout the Common European
Asylum System (CEAS) have attracted less attention.
1
This vulnerable
group is located at the crossroads of multiple forms of oppression, as issues
of race, gender, legal status, class and various other power relations
overlap within their lives.
2
To appreciate how these overlapping structures
affect and influence the asylum legal process, this article will argue that
intersectionality is a useful analytical tool.
Intersectionality is a method of analysis that focuses on the
dynamics of power that simultaneously interact within an individual’s life,
underscoring how such intersections may place certain persons, like
asylum seekers, in a particularly disadvantaged position. By doing so, the
concept facilitates the identification of aspects of identity which are often
invisible within the law. This article will argue that the CEAS, in failing to
* Fiona Argenta receives an LLB in European Comparative Law from Maastricht University
in 2019, graduating summa cum laude. She is currently completing her LLM at the
University of Cambridge. She is interested in human rights, feminist legal theory, and queer
studies. Her current research focuses on the theoretical foundations of legal gender. The
author would like to thank Dr Felipe Oliveira de Sousa for having continuously supported
her work throughout her undergraduate and the Editorial Board for their help with this
article.
1
Lillian Langford, ‘The Other Euro Crisis: Rights Violations under the Common European
Asylum System and the Unravelling of EU Solidarity’ (2013) 26 Harvard Human Rights
Journal 217, 247; Anna Carastathis, Natalle Kouri-Towe, Gada Mahrousse, and Leila Whitley,
‘Introduction: Intersectional Feminist Intervention in the “Refugee Crisis”’ (2018) 34(1)
Refuge 3, 3.
2
Helen Baillot, Sharon Cowan, and Vanessa E. Munro, ‘Crossing Borders, Inhabiting Spaces:
the Incredibility of Sexual Violence in Asylum Appeals’ in Sharron A FitzGerald (ed);
Regulating the International Movement of Women: From Protection to Control (Routledge 2011),
189; Carastathis, Kouri-Towe, Mahrousse, and Whitley (n 1) 6.
2020] Contextualizing Intersectionality
285
apply an intersectional lens to the experiences of asylum seekers, has failed
to reflect their reality.
3
The EU has become one of the most important
institutions in the regulation of asylum. Consequently, exploring the
circumstances in which applicants fall outside the protection of the CEAS
is of great importance.
4
It is also worth noting that the EU is currently in
the process of reforming the CEAS, and has previously recognised the
relevance of intersectionality in matters of asylum.
5
This article will consider how the CEAS has failed to include an
intersectional approach, both at a procedural and substantive level, and, as
a result, has failed to recognise the potential value of the concept in the
improvement of its legal framework. Part I will offer an explanation of the
concept of intersectionality, arguing the pertinence of its application to
asylum law. Part II will provide a brief overview of the CEAS, followed by
a discussion of its deficiencies. The discussion of these deficiencies is
twofold, firstly discussing the substantive law regulating asylum claims
and the failure to appreciate the utility of intersectionality; then secondly
examining the issue of sexual violence, and how it operates as an
intersecting continuum.
6
It is advanced that EU law and policies governing
legal procedures not only fail to address the intersecting nature of violence
adequately, but also take an active role in the perpetuation of such
violence. This section will predominantly focus on gender-based identities,
as they overlap with other identity markers. It will be contended that their
treatment by authorities has proven problematic.
7
Finally, Part III will
3
Monica Katherine Beard, ‘Feminist Theory, Gender Mainstreaming and the European
Union: Examining the Effects of Gender Mainstreaming and National Law on Female Asylum
Seekers in the United Kingdom and Ireland’ (PhD thesis, University of Sussex, 2016), 5; Moira
Dustin and Nina Held, ‘In or Out: A Queer Intersectional Approach to ‘Particular Social
Group’ Membership and Credibility in SOGI Asylum Claims in Germany and the UK’ (2018)
2 Genius 74, 79.
4
Langford (n 1) 222; ‘Introduction to the Common European Asylum System for Courts and
Tribunals: a Judicial Analysis’ (European Asylum Support Office 2016) 14.
5
European Parliament Resolution of 8 March 2016 on the situation of women refugees and
asylum seekers in the EU [2015/2325(INI)], recital K and para 12; Commission, ‘Toward a
Reform of the Common European Asylum System and enhancing legal avenues to Europe’,
COM (2016) 197 final, 6 April 2016; Salvo Nicolosi ‘Unfinished Business: The European
Parliament in the negotiations for reform of the Common European Asylum System’ (23 June
2019).
6
Victoria Canning, Gendered Harm and Structural Violence in the British Asylum System
(Routledge 2017) 30.
7
Jacqueline Greatbatch, ‘The Gender Difference: Feminist Critiques of Refugee Discourse’
(1989) 1 International of Refugee Law 518, 518; Alice Edwards, ‘Age and Gender Dimensions
in International Refugee Law Law’ in Erika Feller, Volker Türk, and Frances Nicholson (eds),
Refugee Protection in International Law: UNHRC’s Global Consultations on International
Protection (Cambridge University Press 2003), 68; Bethany Lobo, ‘Women as a Particular

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