Migrant women in European migration policy: the pitfalls of a partial and biased conception of the migrant 1/2

Temps de lecture : 7 minutes

Migrant women in European migration policy: the pitfalls of a partial and biased conception of the migrant (Part I)

Illustration réalisée par Yona Rouach : @welcome_univers
23.07.2020
Written by Adèle Monod
Translated by Julie Penverne
The status of migrant women in European law is indicative of the inherent flaws of the European migration policy. Numerous sociological studies unveil the stereotypes from which a categorisation of migrant women derives. These two articles will analyse the prevailing view of migrant women and how this view is understood by European migration policies at each stage of migration: the migratory journey (Part 1) and the qualification of the migrant woman and her integration into society (Part 2).
Part I – Migratory journeys and arrival on European soil
The use of the generic and neutral term “migrant” when referring to persons leaving their country highlights the understanding by legislators and authorities on the ground (police, border guards etc.) of migrants as a homogeneous and neutral group. However, within this group there are just as many differences as in a traditional society: women and men; children with or without parents; large families; single-parent families; homosexual women; homosexual men; transgender persons; persons with visible or invisible disabilities; persons suffering from post-traumatic stress disorder, having been tortured, having lived through war; or persons falling into several categories. There are also significant ethnic, cultural and religious differences.
In European law, far fewer distinctions are made. Yet it is these distinctions that define the rights and guarantees granted to migrants. A distinction is made between legal and illegal migrants. Legal migrants are people who migrate for reasons provided for by European or national law (e.g. highly qualified persons^1[1]Directive 2009/50/CE du 25 mai 2009 établissant les conditions d’entrée et de séjour des ressortissants de pays tiers aux fins d’un emploi hautement qualifié., seasonal workers^[2]Directive 2014/36/UE du 26 février 2014 établissant les conditions d’entrée et de séjour des ressortissants de pays tiers aux fins d’un emploi en tant que travailleur saisonnier.). Illegal migrants are people who have entered the territory in an irregular manner: they may have left their country for economic or political reasons as refugees or asylum seekers. Within asylum seekers, European law considers a sub-category: vulnerable persons (defined according to European or national law). These are people who should benefit from more guarantees than the rest of the migrant population due to the experiences they have had (post-traumatic stress, genital mutilation…) or their situation (unaccompanied minors, pregnant women…).
European migration policy creates a biased and partial reality of the migrant as early as the categorisation process of migrants. This relates to the “neutral” character of migration policies, i.e. they do not take into account gendered and sexual differences that may exist among migrants. Nevertheless, society is not neutral and gender inequalities are intrinsic and systemic. Therefore, taking sociological realities into account is paramount to ensure the rights of migrant women. In this sense, article 5 paragraph (a) of the Convention on the Elimination of All Forms of Discrimination against Women (1979) stipulates that States must take measures to “modify the social and cultural patterns of conduct of men and women in order to achieve the elimination of prejudices and customary practices, or of any other type based on the idea of the inferiority or superiority of either sex or on stereotyped roles for men and women. ».
Thus, in order to examine how migration policies try (or do not try) to change socio-cultural patterns, these two articles will contrast some of the sociological preconceptions of women and the European law practices or measures deriving from them. This first part will focus on the status of women and their rights during the migratory journey.
Women as victims of human trafficking ?
Human trafficking is defined by the 2005 Council of Europe Convention signed in Warsaw as “the recruitment, transportation, transfer, harbouring or reception of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs^[3] Council of Europe Convention on Action against Human Trafficking, Article 4. ». Thus, the convention considers three elements that amounts to  trafficking: action, means and purpose^[4]S. LAACHER, « Les femmes migrantes dans l’enfer du voyage interdit », 2012, Les Temps Modernes, Gallimard, 2012, pages 183-201, Available at: … Continue reading.
The definition of human trafficking is complex. It can include the smuggling and accompaniment of persons as well as human trafficking itself. The two practices may follow one another or even overlap. However, since European migration policies leave very few possibilities for access to European territory, women, like men, are often forced to resort to clandestine networks^[5]Ibid..
The Warsaw Convention repeatedly mentions “gender mainstreaming”. However, the inclusion of female human trafficking victims remains vague. Likewise, Directive 2011/36/EU on combating human trafficking recalls in Article 1 the need to “take into account gender equality issues”. In addition to this mention, the preamble refers several times to “gender”, without specifying how States should adopt this approach.
Although women are clearly mentioned in both the Warsaw Convention and Directive 2011/36/EU, the status of victims of human trafficking does not only provide guarantees for women. Indeed, like the fight against illegal immigration, the fight against human trafficking can serve as a pretext for governments to strengthen border controls (as shown in article 7 of the Warsaw Convention). This strengthening of border controls may be to the detriment of victims of human trafficking. It can prevent the arrival of boats or groups of migrants who would have passed through clandestine networks without identifying the victims (contrary to Article 10 of the Warsaw Convention)^[6]E. TYSZLER, « Sécurisation des frontières et violences contre les femmes en quête de mobilité », 2018, Migrations Société, n°173, pages 143 à 158..
Women as maternal beings ?
In order to protect herself from instances of sexual violence intrinsic to human trafficking, the migrant woman is encouraged to form a new family^[7]Op. cit. 2. Indeed, as soon as they migrate, single women, with or without children, are encouraged to find a “protector” who plays the role of “head of the family”^[8]Op. cit. 4  et J. FREEDMAN, « The use and abuses of « vulnerability » in EU asylum and refugee protection : protecting women and reducing autonomy ? », 2019, … Continue reading.
Moreover, being pregnant is often encouraged or even required by smugglers to ensure that the authorities will come to their rescue at sea^[9]Op. cit. 4. All the more so as pregnant and thus vulnerable women migrants can benefit from more rights than others^[10]Op. cit. 6.
As a result, it appears that European migration policies view migration mainly through the prism of the family. This conception can be detrimental to migrant women: it can happen that women are victims of violence or exploitation, whether within an already constituted family or a family created during the journey. However, humanitarian organizations or competent authorities tend to provide assistance to the family and thus neglect the protection of women^[11]ONU, Comité pour l’élimination de la discrimination à l’égard des femmes, Recommandation générale n°32 sur les femmes et les situations de réfugiés, d’asile, de nationalité et … Continue reading. The Committee on the Elimination of Discrimination against Women has also noted this reductionist approach by the authorities: “(…) asylum authorities will tend to listen to  ‘the head of the family’ only, i.e. the man, not to have a female official listen to women, so that they can talk about their situation in an environment sensitive to their status as women, and to interview female asylum seekers in the presence of their husbands or male family members who are in fact the subject of their complaints”^[12]Ibid..
Women as vulnerable beings ?
The few times that women appear in the Common European Asylum System, it is among the list of vulnerable asylum seekers: pregnant women and women who are victims of genital mutilation benefit from additional guarantees compared to asylum seekers. As the list enshrined in Article 21 of the so-called “Reception Conditions” Directive (Directive 2013/33/EU) is non-exhaustive, Member States may grant vulnerable status to other migrant women.
Nevertheless, the conception of vulnerability can be problematic as it shows an essentialist view of vulnerable groups: legislators and implementing authorities tend to consider that all migrant women would have the same characteristics, vulnerabilities and history. This reductionist view can be detrimental to people belonging to these groups. Furthermore, the conception of vulnerability may reinforce gendered representations associating women and vulnerability and men and strength by not taking into account the structural and contextual reasons for vulnerability^[13]Hollander, J, « Vulnerability and Dangerousness: The Construction of Gender through Conversation about Violence », 2001 Gender and Society, pages 83-109.. This observation leads to a paradox: since they do not consider the gendered and sexual aspect of migration, the laws that are at the root of women’s vulnerability are also those that put in place measures to protect vulnerable people. Similarly, those who must ensure the protection of vulnerable persons – police or other representatives of state authority – may also be those who perpetuate violence against women, whether invisible and structural or whether it constitutes an aggression.
Moreover, Member States tend to identify only visible forms of vulnerability to the detriment of other forms of vulnerability such as mental illness or post-traumatic stress disorder^[14]Hollander, J, « Vulnerability and Dangerousness: The Construction of Gender through Conversation about Violence », 2001 Gender and Society, pages 83-109.. This practice has also led some migrant women to get pregnant in order to benefit from more guarantee^[15]Ibid. Thus, the legal category of vulnerable migrants only appears to resolve problems superficially, taking into account only a small part of the migrant population. As a result, the granting of vulnerable status ultimately allows a smaller number to benefit from the guarantees that should be enjoyed by the majority.
Conclusion
As early as the migratory journey, migrant women are prey to sexual and gender-based violence. The only way to reach asylum is through clandestine networks. Women who travel alone, with or without children and with or without a husband, are forced to rebuild a family: find a protector, get pregnant, and so on. This trend, which stems from the fact that the European authorities come to the rescue of boats with pregnant women on board, reveals another trend: the vulnerability of migrants, and more specifically the vulnerability of migrant women. The establishment of a vulnerable category simplifies the sexual and gendered realities intrinsic to society and suffered by migrant women.
To quote this article : MONOD Adèle, “Migrant women in European migration policy: the pitfalls of a partial and biased conception of the migrant (Part I)”, 23.07.2020, Gender in Geopolitics Institute.