Domestic Violence as Persecution: When the State Fails to Protect

Last updated: 5 October 2026

Photo: WWPW-2014-DRizzico-8 - David Rizzico

Domestic violence persecution is now established in international law. When a woman faces repeated violence at home, and the state cannot or will not protect her, this is persecution. Courts in the UK, US, Canada, and the EU have confirmed this principle many times. The 1951 Refugee Convention protects people who fear serious harm because of their membership of a particular social group. Women who face domestic violence in countries where the state fails to protect them belong to such a group.[1]

This article explains the legal framework for domestic violence persecution claims. It covers how courts decide if state protection is enough. It also looks at countries where protection consistently fails. For expert witnesses and asylum lawyers, understanding this area of law is essential. Domestic violence is one of the most common grounds for asylum claims by women worldwide.

Legal Framework: The 1951 Convention and Non-State Persecution

The 1951 Refugee Convention does not mention domestic violence by name. However, it protects anyone who faces persecution because of their race, religion, nationality, political opinion, or membership of a particular social group (PSG). Courts have ruled that women who face domestic violence can qualify under the PSG ground. This means that a woman who faces serious harm from her partner, and who cannot get protection from the state, may be a refugee.[2]

The key legal question is not whether the violence happens. It is whether the state protects the victim. This is called "non-state persecution." The persecutor is a private person, not the government. However, the state becomes responsible when it fails to protect. The law asks: is the state unable or unwilling to provide sufficient protection?

The PSG Ground: Islam and Shah (1999)

The landmark UK case of Islam v Secretary of State for the Home Department; R v Immigration Appeal Tribunal, ex parte Shah [1999] UKHL 20 changed everything. The House of Lords ruled that Pakistani women who faced domestic violence formed a particular social group. They shared two things: they were women, and they lived in a country where the state did not protect them. This decision opened the door for thousands of DV asylum claims worldwide.[3]

Sufficiency of Protection: Horvath (2001)

In Horvath v Secretary of State for the Home Department [2001] 1 AC 489, the House of Lords set out the "sufficiency of protection" test. The court said that a state does not need to provide perfect protection. However, it must provide a "reasonable level" of protection. This means a system of criminal law that makes violence a crime, plus a reasonable willingness by the authorities to enforce that law. If a country has DV laws but does not enforce them, protection is not sufficient.[4]

The obligation of the state is not to eliminate all risk but to provide a system of protection that is reasonably effective. Where the system fails at every level — police, courts, and social services — protection cannot be said to be sufficient.
Lord Hope, Horvath v SSHD [2001] 1 AC 489

When Domestic Violence Becomes Persecution

Not every case of domestic violence is persecution under refugee law. Three things must come together for a DV asylum claim to succeed. First, the violence must be serious enough to count as persecution. Repeated physical violence, sexual violence, and severe psychological abuse all meet this threshold. Second, the state must be unable or unwilling to protect the victim. Third, there must be no safe place within the country where the woman can relocate — this is called "internal relocation."[5]

Courts look at the full picture. They consider how often the violence happens and how bad it is. They also consider whether the abuser has power or connections that make escape impossible. In many countries, an abusive husband can find his wife anywhere. Family networks, social pressure, and corrupt police make internal relocation unsafe.

The Role of State Failure

State failure is the heart of every DV asylum claim. The question is simple: did the state try to protect this woman, and did it succeed? In practice, courts examine several factors. Did the woman report the violence to police? Did the police investigate? Were charges brought? Were protection orders issued? Were those orders enforced? Are shelters available and accessible?

However, it is important to understand that a woman does not need to have reported to police if reporting would be useless or dangerous. Many courts accept that in some countries, going to the police makes things worse. The police may tell the husband, refuse to act, or even blame the woman. In such cases, the failure to report does not weaken the claim.[6]

How Courts Assess State Protection in DV Cases

When a woman claims asylum based on domestic violence persecution, the court must decide if her home country provides enough protection. Courts use a structured approach to answer this question. They look at both the law on paper and the law in practice. A country may have excellent DV laws but terrible enforcement. The gap between law and reality is often the most important factor.

Courts typically ask these questions:

• Did the woman report the violence? If yes, what happened? If no, why not?
• Did police respond? Did they come to the home? Did they take a statement? Did they arrest the abuser?
• Were charges brought? Did the case go to court, or was it dropped?
• Are protection orders available? Can the woman get a restraining order? Is it enforced?
• Are shelters available? How many? Where? Are they accessible to this woman?
• Is internal relocation possible? Can she live safely in another part of the country?

The answers to these questions depend on the specific country. This is where expert witnesses play a critical role. They provide evidence about how the system actually works in the woman's home country. Country of origin information (COI) reports from UNHCR, the UK Home Office, and the US State Department also help courts understand the reality on the ground.[7]

Key DV Asylum Case Law by Jurisdiction

Table 1: Key domestic violence persecution case law across major asylum jurisdictions.

DV Asylum Claims: A Global Overview

Domestic violence persecution claims come from every region of the world. However, some countries produce more claims than others. This is because state protection varies greatly. In countries with strong police forces, functioning courts, and available shelters, DV claims are harder to make. In countries where the system fails, claims are more likely to succeed.

Figure 1: Estimated volume of DV-related asylum claims by region. Source: UNHCR, national asylum statistics, 2023-2025.

Countries Where State Protection Consistently Fails

In many countries, domestic violence laws exist on paper but fail in practice. The following are examples of countries where country reports consistently show that the state does not protect DV victims. This list is not complete, but it covers the most common source countries for DV asylum claims.[8]

Albania

Albania has a domestic violence law and a system of protection orders. However, enforcement is very weak. Police often treat DV as a private matter. Protection orders are violated frequently, and violations are rarely punished. Shelters exist but have very few places. The Council of Europe's GREVIO monitoring body has criticized Albania's response to DV repeatedly.[9]

Pakistan

Pakistan remains one of the most dangerous countries for women facing DV. Honour-based violence adds another layer of danger. Police routinely refuse to register complaints from women. The jirga (tribal council) system often forces women to return to abusive husbands. Shelters are scarce, and women who use them face social stigma. The landmark Islam and Shah case was about Pakistani women for good reason.[10]

Afghanistan

Since the Taliban returned to power in August 2021, women in Afghanistan have lost almost all legal protections. The Law on Elimination of Violence Against Women (EVAW) has been effectively suspended. Women cannot leave home without a male guardian. There is no functioning court system for women's complaints. Afghanistan represents the most extreme case of state failure to protect women from domestic violence.[11]

Honduras and El Salvador

The Northern Triangle countries of Central America have extremely high rates of gender-based violence. Gang involvement complicates many DV cases. Police are often corrupt or afraid of gang members. Women who report violence face retaliation. The US has received thousands of DV-based asylum claims from these countries. For more details on human rights conditions in these regions, see our analysis.

Somalia, India, and Georgia

Somalia has no functioning state protection system for DV victims. India has strong laws on paper but massive underreporting and poor enforcement. Georgia has made some progress, but police still treat DV as a family matter and protection orders go unenforced. Each of these countries illustrates the gap between legal frameworks and real protection.[12]

Common Mistakes in DV Asylum Claims

Many DV asylum claims fail not because the violence is not real, but because of how the claim is presented. These are the most common mistakes that lawyers and applicants should avoid:

• Focusing only on the violence: The claim must show that the state failed to protect, not just that violence happened.
• Not providing country evidence: Without COI reports or expert evidence on state protection in the specific country, claims are weak.
• Assuming the woman must have reported to police: Many courts accept that reporting was impossible or useless.
• Ignoring internal relocation: The claim must address why the woman cannot safely live in another part of her country.
• Not linking to a Convention ground: The violence must be connected to PSG, not presented as a random crime.
• Late disclosure: Women often disclose DV late because of shame and trauma. Lawyers must explain this to the court.

How Expert Witnesses Address State Protection

Expert witnesses play a vital role in DV asylum claims. They provide evidence that a court cannot easily find on its own. A good expert witness will explain the gap between law and practice in the woman's home country. They will describe how police respond to DV complaints, whether protection orders work, how many shelter places exist, and whether internal relocation is safe.

Expert reports typically cover the following areas:

• The legal framework for DV in the relevant country
• Police response patterns and documented failures
• Availability and accessibility of shelters
• Whether protection orders are enforced
• Social and cultural factors that prevent women from seeking help
• Internal relocation options and their viability
• Country of origin information from UNHCR, human rights organisations, and government sources

Expert evidence is often the difference between a successful and failed DV asylum claim. Courts need detailed, country-specific information to assess state protection properly. General statements about DV are not enough. The evidence must be specific to the country, the region within that country, and the individual circumstances of the claimant. For guidance on immigration and asylum procedures, see our detailed guides.

Conclusion

Domestic violence persecution is a well-established ground for asylum. The legal framework is clear: when a woman faces serious violence and the state cannot or will not protect her, she may qualify as a refugee. The key cases — Islam and Shah, Horvath, Matter of A-B-, and Khawar — have set out the principles that courts apply worldwide. However, success depends on good evidence. Claims must show the specific failures of state protection in the woman's country. Expert witness reports, COI evidence, and careful legal analysis are all essential.

The scale of the problem is enormous. One in three women worldwide experience physical or sexual violence. In many countries, the state does nothing to stop it. For these women, the asylum system is sometimes the only path to safety. Understanding domestic violence persecution — the law, the evidence, and the common pitfalls — is essential for everyone involved in asylum decision-making.[13]