THIS DOCUMENT SHOULD BE USED AS A TOOL FOR IDENTIFYING RELEVANT COUNTRY OF ORIGIN INFORMATION. IT SHOULD NOT BE SUBMITTED AS EVIDENCE TO THE HOME OFFICE, THE TRIBUNAL OR OTHER DECISION MAKERS IN ASYLUM APPLICATIONS OR APPEALS © Still Human Still Here 2015 6 August 2015 (COI included up to 13 July 2015) A Commentary on the April 2015 and February 2015 Country Information and Guidance reports issued on India This commentary identifies what the ‘Still Human Still Here’ coalition considers to be the main inconsistencies and omissions between the currently available country of origin information (COI) and case law on India and the conclusions reached in the following Country Information and Guidance (CIG) reports issued by the UK Home Office: o Country information and guidance report: Women fearing gender-based harm/violence, India, April 2015 o Country information and guidance report: Background information, including actors of protection, and internal relocation, India, February 2015 Where we believe inconsistencies have been identified, the relevant section of the CIG report is highlighted in blue. An index of full sources of the COI referred to in this commentary is also provided at the end of the document (COI up to 13 July 2015). This commentary is a guide for legal practitioners and decision-makers in respect of the relevant COI, by reference to the sections of the CIG reports on India. The document should be used as a tool to help to identify relevant COI and the COI referred to can be considered by decision makers in assessing asylum applications and appeals. This document should not be submitted as evidence to the UK Home Office, the Tribunal or other decision makers in asylum applications or appeals. However, legal representatives are welcome to submit the COI referred to in this document to decision makers (including judges) to help in the accurate determination of an asylum claim or appeal. The COI referred to in this document is not exhaustive and should always be complemented by case-specific COI research. Contents A. India CIG: Women fearing gender-based harm/violence (April 2015) p. 3 Is there effective protection for women? p. 3 Is a woman able to internally relocate within India to escape that risk? p.12 B. India CIG: Background information, including actors of protection, and internal relocation, p.17 (February 2015) Are those at risk able to seek effective protection? p.17 Access to effective protection for religious minorities p.20 Are those at risk able to internally relocate within India? p.22 Relevant COI omitted from the CIG in relation to effective protection p.26 Barriers to protection in general Overworked and demoralized police officers p.27 Poor police working conditions with inadequate training and equipment p.27 1 THIS DOCUMENT SHOULD BE USED AS A TOOL FOR IDENTIFYING RELEVANT COUNTRY OF ORIGIN INFORMATION. IT SHOULD NOT BE SUBMITTED AS EVIDENCE TO THE HOME OFFICE, THE TRIBUNAL OR OTHER DECISION MAKERS IN ASYLUM APPLICATIONS OR APPEALS © Still Human Still Here 2015 The police being subject to corruption and political influence p. 30 Overburdened judiciary p. 32 Bribery being common in the judicial system p. 33 Cases proceeding to court- pre-trial detention and low conviction rate p. 35 Overview of human rights abuses committed by security forces, particularly the police p. 37 Barriers to legal remedies for serious police misconduct p. 44 Barriers to fair trial p. 50 Barriers to justice for religious minorities p. 54 Barriers to justice for scheduled castes p. 59 Barriers to women accessing police protection Police resources for dealing with women’s cases p. 66 Police training for dealing with women’s cases p. 66 Police and authorities’ attitudes to violence against women p. 67 Police response to violence against women p. 69 Police abuse of women with impunity p. 73 Barriers to women accessing a fair trial Judicial resources for dealing with women’s cases p. 75 Judicial attitudes to violence against women p. 76 Judicial response to violence against women p. 76 Useful sources to consult on the economic situation for women in India p .78 Index of sources p. 81 2 THIS DOCUMENT SHOULD BE USED AS A TOOL FOR IDENTIFYING RELEVANT COUNTRY OF ORIGIN INFORMATION. IT SHOULD NOT BE SUBMITTED AS EVIDENCE TO THE HOME OFFICE, THE TRIBUNAL OR OTHER DECISION MAKERS IN ASYLUM APPLICATIONS OR APPEALS © Still Human Still Here 2015 A. India CIG: Women fearing gender-based harm/violence (April 2015) Is there effective protection for women? The CIG on ‘Women fearing gender-based harm/violence’ finds that “a person is likely to be able to access effective protection from the state”: Excerpt from CIG on women fearing gender-based harm/violence 1.3.17 In general, a person is likely to be able to access effective protection from the state. However, an assessment of whether a person would be able to access assistance and protection must be carefully considered on the facts of the case. Decision makers must take particular account of past persecution (if any) and past lack of effective protection. In each case, decision makers must identify whether attempts were made to seek protection and what the response of the authorities was, while taking into account that in some cases there may be good reason why a woman was unable or unwilling to seek protection from the authorities. However it is considered that this position fails to take account a gendered assessment of whether effective protection will be realised in practice. As detailed below, COI included in the CIG and elsewhere in the public domain documents the many issues that women face in accessing the criminal justice system, particularly as victims sexual and gender based crimes. Indeed, the position on protection highlighted above in paragraph 1.3.17 is more restrictive than that taken in the policy summary of the CIG which considers that in some circumstances protection may be unavailable: Excerpt from CIG on women fearing gender-based harm/violence 1.4 Policy Summary […] Victims of gender based violence may in some circumstances be unable to obtain effective state protection. This commentary addresses each of the paragraphs of guidance included in the section of the CIG ‘Is there effective protection for women?’ in turn. Excerpt from CIG on women fearing gender-based harm/violence Is there effective protection for women? 1.3.13 There are specific statutory laws in place which provide tough penalties for domestic violence, rape, acid attacks, sexual harassment, trafficking and other related offences. Furthermore, new legislation was adopted in 2013, including a Criminal Law (Amendment) Act which – according to the United Nations Special Rapporteur on violence against women – has improved the legislative framework significantly, introducing new criminal offences and stronger sanctions. The Special Rapporteur did, however, note in a report of April 2014 that effective implementation of these laws, and the allocation of financial resources to support their execution adequately, was reportedly lacking in many instances. (See Violence against women in the country information section) Whilst the CIG does recognise that effective implementation of the Criminal Law (Amendment Act) is lacking in many instances, it is considered that the above section of the guidance fails to mention the limitations of the Act. It is the view of the UN Special Rapporteur on violence against women, its causes and consequences that the laws that were adopted did not fully reflect the recommendations of the Verma Committee (which was established by the Government to review existing normative gaps following the brutal gang rape and death of a student in December 2012). The UN Special Rapporteur considers that (emphasis added): 3 THIS DOCUMENT SHOULD BE USED AS A TOOL FOR IDENTIFYING RELEVANT COUNTRY OF ORIGIN INFORMATION. IT SHOULD NOT BE SUBMITTED AS EVIDENCE TO THE HOME OFFICE, THE TRIBUNAL OR OTHER DECISION MAKERS IN ASYLUM APPLICATIONS OR APPEALS © Still Human Still Here 2015 UN Human Rights Council, Report of the Special Rapporteur on violence against women, its causes and consequences, Addendum : Mission to India, 1 April 2014 […] 50. However, the laws that were adopted did not fully reflect the recommendations of the Verma Committee. The opportunity to adopt a holistic approach to violence against women, including addressing the root causes and consequences of such violence, was lost. In fact, the Criminal Law (Amendment) Act failed to: criminalize existing beliefs and practices linked to chastity; protect women with disabilities, unmarried women, lesbian, gay, bisexual and transgender persons, religious minorities, and girls below 18 years of age from sexual violence; or recognize marital rape as a criminal offence. Moreover, gang rapes and mass crimes involving brutal acts of sexual violence are not considered as multiple crimes against women, but as a single punishable crime under this law. Many concerns were raised about the deterrent effect of the application of the death penalty, as provided for in the Act. This is a statutory option for the courts in cases of gang rape where a perpetrator is a repeat offender, or if sexual violence results in the death of the victim, or puts the victim in a permanent vegetative state. It is of concern that conviction in such cases may entail higher evidential burdens for the victim, since the death penalty is a consideration in sentencing. The current legislative framework is therefore still in need of reform. 51. Serious concerns were expressed