Migrant women in European migration policy: the pitfalls of a partial and biased conception of the migrant (2/2) – The qualification of migrant women and their integration into society

Temps de lecture : 8 minutes

Migrant women in European migration policy: the pitfalls of a partial and biased conception of the migrant (2/2) – The qualification of migrant women and their integration into society

Illustration réalisée par Yona Rouach : @welcome_univers

14.08.2020

Written by Adèle Monod
Translated by Julie Penverne

While part 1^[1]https://igg-geo.org/?p=1595&fbclid=IwAR1CSPn2LzROj2fkb26MQjTZ0znDng_13L6wAJBz3HZgw_S9EorQq-8KLdQ analysed the difficulties of the migratory journey and the consideration of these difficulties in European and international law, this second part will look at the situation of women once they have arrived on European soil.

Asylum-seeking women?

While the asylum seeker benefits from additional guarantees as well as a certain form of security (financial, legal, medical) in comparison with irregular migrants, she may have great difficulties in obtaining refugee status. On the one hand, persecution linked to her gender is not identified as such in the text of the Refugee Convention (1951). On the other hand, her political activism is not recognized in the same way as that of men.

1. Recognition of gender-related persecution

The 1951 Convention maintained the “neutral” character of international protection. Interpretative (non-binding) guidelines on the gendered aspect of persecution and asylum have been drafted by international organizations. Since 2011, a legally binding provision deals with this issue. Article 60 of the Istanbul Convention requires signatory states – including European Union (EU) member states – “to take the necessary legislative or other measures to ensure that gender-based violence against women can be recognized as a form of persecution in accordance to Article 1, A (2) of the 1951 Convention^[2]Council of Europe, Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, Istanbul, 2011, Council of Europe Treaty Series, No. 210.. However, this advance has several limitations:

The burden of proof rests on the woman. Thus, it falls on her to prove that her claim for asylum due to sexual and gender-based persecution is credible in the face of potentially skeptical authorities. Material evidence of gendered persecution is very difficult to obtain^[3]Jane Freedman, Introduire le genre dans le débat sur l’asile politique, L’insécurité croissante pour les femmes réfugiées en Europe, Les cahiers du CEDREF, 2004, 1-16. Moreover, even though European law provides that states must adapt the interlocutor depending on the migrant woman^[4]Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast) (the “Procedure … Continue reading, the reality is that migrant women often have to relate the violence suffered to a man. Thus, the granting of international protection related to gender-based persecution depends entirely on the assessment of national authorities and the judge^[5]S. LAACHER, Les femmes migrantes dans l’enfer du voyage interdit, « Les Temps Modernes », Gallimard, 2012, pp.183-201..

Rape is not always recognised as persecution within the meaning of Article 1 of the 1951 Convention. Rape committed by persons belonging to a militia or rebel group in the victim’s country of origin may provide women with international protection. However, rape perpetrated by the authorities of an “authoritarian and lawless^[6]Ibid” transit country does not qualify a woman for refugee status. While the first crime is qualified as “persecution^[7]Ibid” in the sense of article 1 of the Refugee Convention, the second is considered “violence^[8]Ibid”.

Gendered persecution is based on the ground of belonging to a “particular social group^[9]UNHCR, 1951 Convention relating to the Status of Refugees, Article 1 A (2).“. However, this abstract term is not legally defined. As a result, it can lead to a confusing interpretation. The Committee on the Elimination of Discrimination against Women, which is responsible for ensuring the proper implementation of the Convention on the Elimination of All Forms of Discrimination against Women (1979), noted that this interpretation may “reinforce the stereotypical view that women are dependent victims.^[10]Committee on the Elimination of Discrimination against Women, General Recommendation No. 32 on women and refugee situations of asylum, nationality and statelessness, 14 December 2014,CEDAW/C/GC/32, … Continue reading” Is this not a new form of categorisation? Like the conception of the migrant person, this interpretation of gendered persecution admits that, in sum, women belong to a homogenous social group, without any distinction.

European law has taken this last consideration into account, specifying in the preamble of the Directive 2011/95/EU called “Qualification”:

“It is also necessary to adopt a new common definition of the ground of persecution that constitutes ‘membership of a particular social group’. For the purpose of defining a particular social group, due consideration should be given to issues related to the applicant’s gender – including gender identity and sexual orientation, which may be linked to certain legal traditions and customs, resulting for example in genital mutilation, forced sterilization or forced abortion – insofar as they relate to the applicant’s well-founded fear of being persecuted^[11]Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification and status of third country nationals or stateless persons as beneficiaries … Continue reading”.

The obligation to recognise violence against women as persecution has been conscientiously laid down in European law: Article 9 paragraph 2 (f) provides that “acts directed against persons on account of their gender^[12]Ibid” are acts of persecution. European law thus seems to be a step ahead of the 1951 Refugee Convention. Indeed, while the Convention remains neutral, Article 9 explicitly provides that gender-related persecution is persecution within the definition of a refugee.

2. Granting political asylum

Political asylum (Article 1 A (2) of the Refugee Convention) may also prove more difficult for women to obtain. The expression of women’s political demands differs from that of men. Women’s most common forms of political activities (e.g., “hiding people, transmitting messages, or feeding and caring^[13]Jane Freedman, Introduire le genre dans le débat sur l’asile politique, L’insécurité croissante pour les femmes réfugiées en Europe, Les cahiers du CEDREF, 2004, 1-16.”) are considered by the authorities to be “indirect^[14]Ibid.” political activities. In contrast, men’s political activities are considered to be “direct^[15]Ibid.”. As a result, women may be denied political asylum on the grounds that their political activities do not meet the criteria set out in the 1951 Refugee Convention. This distinction between women’s and men’s political activities exposes the problem of a neutral view of asylum. The term neutral implies equal treatment: men and women are granted refugee status equally. However, failure to include gender in the assessment of an asylum application puts women at a considerable disadvantage^[16]C. LESSELIER , Femmes migrantes en France, Le genre et la loi, Les Cahiers du CEDREF, 2004, pp.45-59.. It is essential to take into account the status of women in the societies from which they come in order to determine whether their asylum claim is well-founded.

Article 60(2) and (3) of the Istanbul Convention prescribe “gender-sensitive^[17]Op. cit.” interpretations and procedures for asylum claims on any grounds set out in the Refugee Convention. However, this vague and abstract article gives little guidance to the
authorities as to the practical application – essential to this interpretation.

Dependent women ?

The migrant woman is subject to unequal treatment on two levels: as a woman and as a migrant. On the one hand, due to the lack of consideration of gendered realities, migrant women do not receive equal treatment compared to migrant men. On the other hand, due to their irregularity, they do not have the same guarantees as female nationals.

In terms of domestic violence, it is apparent that women’s dependence on their husbands can be detrimental to them, as their residence permit is often derived from that of their husbands. The fear of losing their residence permits or being expelled from the territory weakens their situation and their claim to certain rights. Not only must the risks they run in going to the police station or separating from their husbands be taken into account, but so should the hostile environment in which they find themselves. They live in a foreign country where they do not know the language, the law, or the customs. In addition, migrants generally find it difficult to trust the authorities because of treatment previously suffered in the country of origin, transit or arrival.

Article 59 of the Istanbul Convention requires signatory states to provide that a victim of domestic violence, who has a residence permit dependent on that of her husband or partner, may be granted an autonomous residence permit regardless of the length of their marriage or relationship. The European directive on family reunification recognises in article 13 paragraph 2 sub-paragraph c) that “the annulment of marriage or the break-up of a registered partner (…) shall not entail the loss of the right of residence of the family members of an EU citizen who are not nationals of a Member State^[18]Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, 2003, OJ L 251, Article 13 (2).” if that person has been a victim of domestic violence during their relationship.” In light of previously mentioned findings, the implementation of such a provision seems fragile in practice as, once again, the woman bears the burden of proof. In addition, it is possible that the migrant woman may not be aware of her rights

On June 24, 2020, the Commission adopted a Strategy on Victims’ Rights. In this text, the Commission recognises that “irregular migrants who are victims of crime are often also in a vulnerable situation and may have difficulties in accessing justice^[19]Commission européenne, « Communication de la Commission au Parlement européen, au Conseil, au Comité économique et social européen et au comité des régions. Stratégie de l’UE relative au … Continue reading”. The European Union’s policy could take a new turn with regard to migrant victims.

Anti-feminist women ?

The question of the integration of women resonates with the phenomenon of “femonationalism”. It is the defense of a feminism perceived through the prism of national culture. Certain feminist movements have contributed to this phenomenon, notably by categorizing Muslim women wearing the veil as ” behind” or as “victims^[20]D.BADER, Sara R. FARRIS : In the Name of Women’s Rights. The Rise of Femonationalism, Nouvelles Questions Féministes, 2018, pp.144-147.”. These designations imply that the migrant woman would convey anti-feminist ideas by submitting to her husband. These ideas have also become entrenched in national policies. This can be seen in the values test for Muslim candidates for naturalization, which includes issues related to women’s and gay rights^[21]C. Catarino, Politiques migratoires et politiques d’emploi : la flexibilité sexuée en Europe, Cahiers du Genre, 2011, pp.93-112..

This femonationalism depicts the one-sided view of migrant women. While many migrant women have migrated with their husbands in their families, there are also women who came alone, who fled their husbands or who wanted to emancipate themselves by leaving their homes. This femonationism would thus be counterproductive: to consider that the migrant woman is dependent on her husband, a victim of her religion or culture, is to prevent the woman from expressing her emancipation, her empowerment in the way she wishes. Moreover, femonationalism can lead to a form of discrimination prohibited by Article 14 of the European Convention on Human Rights (ECHR) and Article 21 of the Charter of Fundamental Rights of the European Union or at least to a stigmatisation that can reinforce the feeling of abandonment and isolation generally perceived by the migrant woman.

Conclusion

Conclusion

After a migratory journey that has made the condition of women precarious, the arrival on the territory, the qualification and integration of migrant women can be all the more painful. Stigmatization and integration difficulties explain the “invisibility^[22]M. MOROKVASIC, L’(in)visibilité continue, Cahiers du Genre, 2011, pp.25-47.” of migrant women, which is the subject of much research^[23]Ibid.. This invisibility results in structural violence that takes several forms: lack of support, isolation and dehumanisation^[24]Intervention by Jenny Phillimore, Migration Policy Centre, Gender Based Violence and Migration in Times of COVID-19. Perspectives from across the globe, webinar, 1st July 2020, Available at: … Continue reading. The use of this term alone seems to imply that the migrant woman is responsible for this invisibility. However, this invisibility results from a conception of migrants as a single homogeneous group. The term “blindness^[25]H. Y MEYNAUD , Réclamer sa juste part : des mouvements de migrantes aux sans-papières en grève, Cahiers du Genre, 2011, pp.69-91, Hélène Yvonne Meynaud talks about “blindness in regards to … Continue reading” used by Hélène-Yvonne Meynaud, a researcher associated with the Gender, Work and Mobility team of the CNRS CRESPPA laboratory, seems to better characterise the lack of consideration of migrant women by legislators, field authorities and researchers.

Moreover, the existence of a number of non-governmental organizations created by migrant and refugee women^[26]See: http://www.migrantwomennetwork.org/ or https://www.sistersnotstrangers.com/hearusor the mobilization of migrant women^[27]Ibid. shows once again that the reality is not as clear-cut as legislators, field authorities and other concerned parties seem to think. The appearance of “gender-sensitive^[28]Ibid.” measures in European and international law is encouraging but remains insufficient in view of the practices observed on the ground. The adoption of a fresh look at migrant women is essential to ensure their fundamental rights under European law. However, more broadly, measures and practices relating to migration should stop considering migrants as a homogeneous social group and adopt a gendered approach.

To cite this article : Adèle Monod, “Migrant women in European migration policy: the pitfalls of a partial and biased conception of the migrant (2/2) – The qualification of migrant women and their integration into society”, Gender in Geopolitics Institute, 14.08.2020.