International refugee law and the right to asylum are grounded in the Convention Relating to the Status of Refugees (1951) and its 1967 Protocol [1]. Together these constitute the primary global legal framework governing the protection of individuals who "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, [are] outside the country of [their] nationality and [are] unable or, owing to such fear, [are] unwilling to avail [themselves] of the protection of that country" [2]. The principle of non-refoulement, enshrined in Article 33 of the 1951 Convention and widely recognised as a rule of customary international law, prohibits the return of any person to a territory where they face a real risk of persecution [3].

Although gender is not explicitly listed among the grounds of persecution in the 1951 Convention, the interpretation of the refugee definition has progressively evolved, drawing on broader international human rights frameworks, to incorporate gender-related claims, to recognise Gender persecution [4]. Gender-related persecution is most commonly recognised under the ground of "membership of a particular social group," though, depending on the circumstances, claims may also be framed in terms of religion, political opinion, or other Convention grounds [5]. Forms of gender-related harm that have been recognised as capable of constituting persecution [6] include sexual violence, domestic violence, female genital mutilation, forced marriage, so-called "honour" crimes, forced sterilisation, punishment for transgressing social mores, and persecution based on sexual orientation or gender identity (SOGI) [7].

The Committee on the Elimination of Discrimination against Women’s ("CEDAW Committee") General Recommendation No. 32 (2014) on the gender-related dimensions of refugee status, asylum, nationality and statelessness of women provides an authoritative treaty body framework for these interpretive developments. It clarifies that gender persecution can give rise to a valid asylum claim where the state knowingly tolerates such acts, or refuses or proves unable to offer effective protection. This extends to cases where the persecution is carried out by non-state actors, including intimate partners, family members, or communities. Where gender-based violence or persecution is perpetrated directly by the state or its agents, the application of the 1951 Convention is unequivocal. Grounded in the prohibition on discrimination under the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) and its due diligence standard, this framework has provided the normative foundation from which regional instruments have developed more specific and binding obligations [8]. General Recommendation No. 32 clarifies that gender-related forms of persecution are forms of persecution directed against a woman "because she is a woman or that affect women disproportionately". It calls on states to interpret the refugee definition under the 1951 Convention in a gender-sensitive manner and to recognise gender as a relevant factor in identifying "membership of a particular social group", and affirms that states parties are prohibited from returning any woman to a territory where she would face serious forms of gender-based persecution or violence.

The Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention), adopted by the Council of Europe in 2011, explicitly links sexual and gender-based violence (SGBV) and asylum law. Article 60 requires states parties to ensure that gender-based violence against women may be recognised as a form of persecution within the meaning of Article 1A(2) of the 1951 Convention. It obliges states to adopt a gender-sensitive interpretation of each of the Convention grounds, and to establish gender-sensitive reception procedures and asylum determination processes [9]. Article 61 of the Istanbul Convention prohibits the return of victims of gender-based violence to any country where their life would be at risk or where they could be subjected to torture or inhuman or degrading treatment. Within the European Union, the Directive on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (2011/95/EU) (2011 recast Qualification Directive) gives these principles binding legislative force. It explicitly requires that gender be taken into account in the assessment of asylum applications and in the identification of membership of a particular social group (Articles 4(3)(c), 9(2)(f) and 10(1)(d)) [10]. The Organisation of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa (1969) adopts a broader refugee definition to include persons compelled to flee due to "external aggression, occupation, foreign domination or events seriously disturbing public order", a standard applicable to large-scale conflict and breakdown of public order, which can encompass displacement in contexts where gender-based violence is widespread, although the Convention itself does not address gender specifically.

Significant jurisprudential developments in recent years have strengthened the recognition of gender-based persecution in asylum law [11].

In Europe, the Court of Justice of the European Union delivered three landmark judgments in 2024, each advancing a gender-sensitive approach to asylum. In WS v State Agency for Refugees under the Council of Ministers (SAR) (C-621/21, 16 January 2024), the Court held that women who are victims of domestic violence qualify as members of a "particular social group" under EU asylum law. The Court clarified that gender is an innate characteristic fulfilling the first criterion for "membership of a social group", and that women as a whole may qualify for international protection, as well as groups of women who share an additional common characteristic. The ruling also confirmed that serious harm may arise not only from acts by state authorities but also by non-state actors, where the state is unable or unwilling to offer protection. In K and L v State Secretary for Justice and Security (C-646/21, 11 June 2024), the Court recognised that women, including minors, who identify with the fundamental value of equality between women and men may, depending on the conditions in the country of origin, belong to a particular social group capable of facing persecution, constituting grounds for refugee status. Subsequently, in AH and FN v Federal Office for Immigration and Asylum (Joined Cases C-608/22 and C-609/22, 4 October 2024), the Court confirmed that Afghan women may, due to the systemic nature of the Taliban regime’s restrictions, be regarded as facing a general risk of persecution on the grounds of gender and nationality, so that an individualised risk assessment is not always required in the usual way.

In Australia, the High Court held in Minister for Immigration and Multicultural Affairs v Khawar (2002) (HCA 14) that Pakistani women subjected to domestic violence, in circumstances where the state systematically failed to provide protection, could constitute a particular social group under the 1951 Convention. In Applicant S v Minister for Immigration and Multicultural Affairs (2004) (HCA 25), the Court articulated a flexible two-limb test for identifying a particular social group [12]. In the United Kingdom, the House of Lords in Secretary of State for the Home Department v Fornah (2006) (UKHL 46) recognised that women in Sierra Leone facing the risk of female genital mutilation could constitute a particular social group within the meaning of the 1951 Convention [13].