This article has been written by Ms. Akshita Jain, a 2-year student of Bharati Vidyapeeth institute of management and research New Delhi

ABSTRACT

Gender-based Violence is a form of violence that is based on gender inequality and remains one of the greatest human rights violations in all societies. It is violence that is committed against a person based on their gender. Women and men are victims of gender-based violence, but it is women and girls who are the majority of the victims. “Gender-based” and “violence against women” are terms used interchangeably in EIGE’s work, as it is well known that most gender-based violence is perpetrated against women and girls by men. The use of the term “gender-based” is important because it emphasizes that many gender based violence is based on power inequalities between men and women. The disproportionate number of gender-based crimes against women reflects this fact. There is general agreement that gender equality is essential for development, economic growth and poverty alleviation. Policy makers and researchers have focused more and more attention and resources on bridging gender gaps in key economic and social indicators in recent decades. Discriminatory social institutions i.e., formal and informal law, social norms, and practices that shape or limit the decisions, choices, and behaviors of women have become increasingly prominent as an analytical framework for understanding gender disparities. In parallel with the growing emphasis on gender equality within social norms, the larger question of measuring and shifting these norms has emerged.

KEY WORDS: Gender inequality, migrants, social institutions, interpersonal violence, Intersectionality, Xenophobia

INTRODUCTION

Today, more than 169 million people are living and working outside their home country in the quest for decent work and better living conditions, as per ILO 2021. When properly regulated, public employment services as well as private employment agencies play a vital role in the smooth and fair functioning of labour markets. However, during the recruitment phase, migrants, particularly low-paid workers, are at risk of falling into a cycle of exploitation and abuse. A State should regulate the recruitment of migrants in a manner that respects, protects and upholds internationally accepted human rights. In the event of any violation of these rights, workers – regardless of their citizenship, status, sex, religion, ethnic origin, caste or other social and economic considerations – should have access to justice and the right to seek effective legal remedies. The number of people forced to migrate around the world has increased steadily since 2010, reaching 79.5 million in 2020, with 20.4 million refugees declared by the United Nations High Commissioner for Refugees as well as 4.2 million asylum seekers). Women make up about half of forced migrants and are particularly vulnerable when forced to migrate. Women refugees experience extreme levels of sexual and gender-based violence, including sexual and gender-based brutality, in temporary camps, immigration detention centres, and in refugee camps. The extent of SGBV among refugees is unclear, but it is estimated that up to 50% of refugees experience SGBV in certain conflicts, with an under-reporting of the norm. Conflict scholars refer to SGBV as a ‘continuous’ form of violence across a person’s journey, and there is little knowledge of the long-term effects of SGBV or how it can be alleviated.

Abuses related to recruitment may include raising recruitment fees, deceitful misrepresentation of the terms and conditions of employment, keeping passports or travel documents for extended period of time, illicit wage deductions, Debt bondage associated with repaying recruitment fees and costs and Threats if workers want to quit their employers, including fear of being arrested, expelled, or deported from their country of employment.

UNDERSTANDING GENDER BASED VIOLENCE AMONG MIGRANT POPULATIONS

The term “violence” is often used to describe only physical forms of violence, leaving out other forms of non-physical violence. Violence is a multifaceted problem, and there is no one-size-fits-all definition of what constitutes violence. Gender-based Violence against migrants includes a wide range of forms of violence, discrimination and harm based on a person’s gender and immigration status. Some types of gender-based violence that migrants experience include:

1. Physical Violence: Physical violence includes assault, battery, and domestic violence, as well as other forms of physical violence against migrants based on their gender identity or their migration status.
2. Sexual Violence: Rape, Sexual Assault, Sexual Harassment, and Exploitation are some of the most common forms of sexual violence faced by migrants, often due to their vulnerability during migration journeys or in-migrant camps and detention facilities.
3. Emotional and psychological abuse: Migrants may be subjected to physical, psychological, and verbal threats, intimidation, and coercion, which can cause mental distress and trauma.
4. Forced marriage and “honor” violence: Migrants, especially women and girls, can be forced into forced marriages or face so-called “honor” violence for transgressing cultural or family standards.
5. Trafficking & Exploitation: Migrants, particularly women and children, can be trafficked for the purpose of sexual exploitation or forced labor or other forms of forced servitude. This exploitation is often based on coercion, fraud, and the exploitation of vulnerable people during the migratory process.
6. Denial of reproductive rights: Migrant women can face violations of reproductive rights, such as forced sterilization, denied access to reproductive health care services, or not being informed about contraception or family planning.
7. Discrimination and stigmatization: Migrants can be discriminated against, socially excluded, and stigmatized because of their gender and immigration status, which can lead to marginalization and a lack of access to basic services and support.
8. Lack of legal protection and access to justice: Migrants, particularly those who are undocumented, may face barriers to legal protection and justice because of fear of expulsion, language barriers, a lack of knowledge of legal rights and cultural bias within legal systems. 

Tackling these gender-based forms of violence against migrants requires holistic strategies that include legal protection, policy reform, social support, access to health care, education and awareness campaigns to fight against stereotyping and discrimination. Understanding and acknowledging these forms of gender-based violence is an essential part of protecting the rights and wellbeing of immigrant populations.

NATIONAL AND REGIONAL LAWS PROTECTING VICTIMS OF GENDER BASED VIOLENCE AMONG MIGRANT POPULATIONS

There are a number of international human rights treaties, conventions and declarations that play an important role in protecting the rights of immigrant victims, including victims of GBV. Here are some of the most important treaties and conventions:

1. CEDAW is an important international treaty that focuses on the rights of women, including protection from gender-based violence and health care discrimination. Article 12 of the Convention outlines measures to ensure that women have access to appropriate services in cases of gender-based violence. 
2. The Universal Declaration of Human Rights is a non-binding treaty, but it is a fundamental document that upholds fundamental human rights. Article 3 of the UDHR states that people have the right to “life, liberty and security of person,” Article 5 states that people should not be subjected to cruel, ill-treatment or punishment, and Article 14 states that people should seek and enjoy asylum.
3. Article 7 of the ICCPR reaffirms the rights of people to be free from discrimination, and Article 6 of the ICCPR states that people should have the right to life and safety. These provisions are important for protecting the rights of migrants who have been victims of gender-based violence or sexual orientation discrimination. 
4. The Children’s Rights Convention (CRC) is concerned with children’s rights and the protection of them from violence, maltreatment, and abuse (Article 19 of the Convention). This Convention applies to the protection of migrant children from gender-based violence (GBV).
5. The International Convention on the protection of the rights of all migrants and their members of their families (ICRWC): This Convention outlines the rights of migrants, their families, and their children. It emphasizes the right to safety, security of person, and safeguards for migrants, such as adequate information, legal aid, and justice.
6. The UN Declaration on the elimination of violence against women: This Declaration recognizes the violation of women’s human rights and encourages states to eliminate violence against women, including women who are migrants. It applies to all women who are victims of violence against women, guaranteeing their protection against gender-based violence.
7. These treaties and declarations provide the foundation for international human rights law and set essential standards and principles to safeguard the rights of all people, including immigrant victims of gender-based violence. They focus on the prevention of discrimination, access to justice and support services for victims regardless of their migration status.

Migrant gender-based violence victims’ rights vary from country to country and from region to region. Here are some examples of national and regional legal frameworks that aim to protect and safeguard the rights of immigrant victims of gender-based violence:

NATIONAL LAWS

1. The United States of America (USA) has a Violence Against Women (VAWA) Act that offers protection for immigrant women who have been victims of domestic abuse, sexual abuse, and human trafficking. VAWA also allows certain categories of immigrants who have been abused to petition for legal immigration status on their own, even if they have been abused by an abuser. 

 

1. The EU (EU) has adopted laws in line with the EU Victims’ Rights Directive (EUVRD) to guarantee certain rights, assistance, and protection to victims of crimes, including gender-based violence (GBV), regardless of their citizenship or legal status in the EU. 
2. Canada (Canada) has an IRPA Act that allows domestic violence victims to petition for permanent residence on their own if they’re in a relationship with an adult Canadian citizen or resident.
3. In Mexico, the General Law on women’s access to a life free from violence criminalizes various types of gender-based violence and provides for measures to reduce, prevent, and eliminate violence against women including immigrant women. 
4. In Australia, the Migration Regulations provide for immigrants to be able to obtain temporary and permanent visas regardless of whether they are victims of trafficking, domestic violence, or other forms of violence.

REGIONAL LAWS AND AGREEMENTS

1. The Council of Europe (CE) has the Istanbul Convention, which is a legally binding treaty that sets out standards for the prevention, protection of victims, and prosecution of perpetrators of violence against women. A number of European countries are parties to this treaty.
2. The African Union (AU) has the Maputo Protocol, which is designed to protect women’s rights. This protocol includes measures to eliminate gender-based violence and applies to all women, regardless of citizenship.
3. The Inter-American System (IAS) has the Belem do Pará Convention, which focuses on the prevention, punishment, and eradication of violence against women in the Americas, including immigrant women.
4. The ASEAN (ASEAN) Declaration on the elimination of violence against women and the prevention of violence against children in ASEAN. This declaration emphasizes the commitment of ASEAN member states to address gender-based violence against women and children in the context of ASEAN.

CHALLENGES IN LEGAL PROTECTION OF MIGRANTS

The gaps need to be addressed through legislative and policy changes that guarantee the rights of immigrant victims and their access to justice, care, and resources, regardless of immigration status. The goal should be to create a more equitable and supportive legal system that takes into account the specific vulnerabilities and needs of immigrant victims.

1. Access to justice: Language barriers, fear of being deported, lack of knowledge of their rights, and lack of trust in law enforcement can make it difficult for immigrant victims to report crimes or seek legal help.
2. Immigration status and fear of being deported: Immigrant victims may fear being deported if they report crimes or seek help due to their immigration status. This fear can lead to an underreporting of crime and exploitation.
3. Lack of protections in the workplace: Immigrant workers, especially those in low-paying or informal sectors, may be subjected to exploitation, such as wage theft, dangerous working conditions, and sexual harassment.
4. Inadequate support services: Immigrant victims often lack access to basic support services like shelters, counselling, health care, and legal aid that are tailored to the cultural and linguistic needs of their victims. These services may not be well-equipped to support diverse immigrant populations.
5. Migrant populations are at risk of being trafficked and exploited. Policies may not provide clear guidance on how to identify and support trafficking victims among immigrant communities. 
6. Family reunification and support: Policies may not provide adequate support for family reunification, particularly for those who have been separated from their families as a result of violence, exploitation or displacement. 
7. Limited cross-border cooperation: Crimes and victimization are often transnational and require multiple jurisdictions. Lack of cooperation and coordination between countries to address these issues can limit the protection and support available to immigrant victims. 
8. Legal representation and due process: Immigrant victims may face difficulties in getting legal representation and going through complex legal proceedings, which can prevent them from seeking justice or seeking remedies.

IMPACT OF IMMIGRATION POLICIES ON MIGRANT VICTIMS OF GENDER BASED VIOLENCE

Immigration policies have a major impact on legal status and the protection of immigrant victims. Below are a few examples or case studies that illustrate how immigration policies affect immigrants such as:

1. Haitian immigrants in the USA

After the earthquake in Haiti in 2010, many Haitians in the US faced difficulties. The US granted Temporary Protection to Haitians who were already living in the country. This allowed them to live and work legally in the US. However, as the policies changed and the Trump administration ended TPS for the Haitians in 2017, many of them faced the risk of being deported, even though they had built lives in the US.

1. Asylum policies and vulnerable immigrant groups

Migrants from Central America seeking asylum in the United States have faced a variety of challenges as a result of violence and persecution. The Trump administration introduced changes to asylum policies, such as Migrant Protection protocols (MPP), which resulted in the implementation of policies known as “remain in Mexico.” This meant that asylum seekers had to wait for their immigration court hearings in Mexico, putting them at risk of further harm, especially vulnerable groups such as women and children

1. Asylum policies and protection in the European Union

The European Union’s asylum policies have had an impact on migrants’ legal rights and protection, particularly during the Syrian Refugee crisis. The EU’s asylum system is governed by the Dublin Regulation, which sets out the criteria for determining which EU country is responsible for examining an asylum application. This system has had a disproportionate impact on countries such as Greece and Italy in terms of their legal status and access to protection.

4. Impact of Brexit on EU Migrants’ Legal Status:

Brexit has had a significant impact on the legal status of EU migrants living in the United Kingdom, with some gaining settled status and others facing uncertainty and difficulties in their right of residence and protection. 

1. Impact of Family Separation Policies:

 

In the United States, the Trump administration’s “zero-Tolerance” policy has led to the separation of immigrant families at the nation’s southern border, which has caused emotional distress for both the parents and children.

These cases demonstrate the extent to which immigration policies can have a significant impact on immigrant victims’ legal status, their rights, and their ability to seek justice in different countries.

SUCCESSFUL LEGAL INTERVENTIONS

To be sure, there are many effective ways in which governments, non-governmental organizations (NGOs), and legal entities support and protect the rights of immigrant victims. Here are some of the most successful interventions:

1. Specialized support services: Developing support services that are tailored to the specific needs of immigrant victims, including language-specific helplines, culturally-sensitive counseling, and accommodation that is tailored to the needs of people from different cultural backgrounds.
2. Legal Aid Programs: Provide free or low-cost legal aid services to immigrant victims to help them navigate complex legal systems and understand their rights.
3. Law enforcement and service providers: Provide law enforcement, social worker, healthcare provider and other relevant stakeholders with training to respond to cases involving immigrant victims in a sensitive and effective manner.
4. Government Policy Reforms: Governments have the power to implement policy reforms to strengthen the protection of immigrant victims. This could include changes to immigration laws to grant specific visas or residency status to victims of trafficking and other forms of exploitation to enable them to stay in the country and seek help and assistance.
5. Encouraging bilateral and multilateral agreements: Promote cooperation between countries to combat human trafficking, protect victims’ rights, and facilitate cross-border legal aid and collaboration.
6. Public Awareness Campaigns to Educate Migrant Communities and the General Public on the Rights of Migrant Victims, on Migrant Support Services, and on the Importance of Reporting Crime Without Fear of Reprisals.
7. Community Centers and Networking to Empower Migrant Communities: Establishing community centers and networks that offer information, support and resources to build trust, educate the general public on legal rights of Migrant victims, and provide avenues for Migrant Empowerment.
8. Employer Responsibility and Monitoring Mechanisms to Hold Employers Responsible for Labor Exploitation by Enforcement of Labor Laws, Regular Inspections, and Ensuring Fair Wages and Safe Working Conditions for Migrant Workers.
9. Victim Centered Approaches to Adopt Victim-centered Approach to Legal Proceedings and Social Services that Prioritize the Well-being and Rights of the Victim, Ensuring their Participation, Safety, and Dignity throughout the Process.

These interventions, when carried out effectively and in partnership, can help to improve the protection, assistance, and empowerment of immigrant victims, addressing the issues they face in legal systems and in society as a whole.

SUGGESTIONS FOR POLICY REFORMS

Migrant victims of gender-based violence deserve comprehensive policies that focus on their safety, justice and support. Here are some proposed policy changes to improve legal protection for immigrant victims:

1. Strengthen protections in immigration law by: recognizing gender-based discrimination as a legitimate ground for asylum or other international protection; developing gender-sensitive guidance for immigration officials and asylum examiners to better comprehend and address the unique difficulties faced by immigrant victims of gender-based discrimination; establishing legal frameworks for immigrant victims of gender discrimination to adjust their immigration status independently from their abuser, so that fear of expulsion does not prevent them from reporting or seeking help;
2. Access to support services: providing financial and other support services to immigrant victims of gender-based discrimination, such as shelters, counseling services, legal aid and healthcare; develop specialized programs to help victims navigate the complicated legal system, such as reporting, obtaining protective orders and social services.
3. Train Law Enforcement, Immigration Officials, Healthcare Professionals, and Legal Service Providers on Generalized Border Violation issues, emphasizing cultural sensitivity and understanding of the specific challenges faced by immigrant victims. Develop protocols and guidelines to identify and respond to cases of generalized border violation in immigration detention centres.

 

1. Strengthen collaboration and coordination among governmental agencies, non-governmental organizations (NGOs), community-based groups, and international organizations to develop a unified response to cases of generalised border violation affecting migrants. Streamline services and improve information-sharing so that victims can be supported effectively. Establish mechanisms for international cooperation to address generalized border violation, recognizing that immigrant victims may need support across multiple jurisdictions.
2. Provide educational programs within immigrant communities to prevent gender-based violence (GBV) and make people aware of their rights and the support services available.
3. Encourage and support initiatives that empower immigrant women in economic, social, and legal terms, helping them break free from violence and become independent.
4. Investigate and collect specific data on gender based violence among immigrant populations to gain a better understanding of the issue, its scale, and dynamics, so that evidence-based policies can be made and targeted interventions can be implemented.

CONCLUSION

Gender-based violence against migrants is a multifaceted and urgent issue that requires urgent and comprehensive attention. This article has highlighted the specific challenges faced by migrants, especially women and marginalised groups, as they face different forms of gender-based violence on their way to seek safety or better opportunities.  Migrants are at an increased risk of gender-based violence due to their vulnerability, which includes physical, sexual and psychological violence, exploitation and trafficking. The intersectionality of factors including gender, race, ethnic origin and immigration status further increases their vulnerability to violence and discrimination Migrant victims of gender-based violence are often marginalized by current immigration policies and frameworks, which often do not adequately address their needs and vulnerabilities. Fear of being deported, lack of knowledge of available resources, and language barriers, as well as mistrust in authorities, make it difficult for victims to seek help or report abuse. However, there are ways to improve this situation, such as by recognizing GBV as a reason for asylum, providing culturally sensitive support, providing professional training, and promoting cross-sectorial collaboration. In order to address the underlying causes of violence against migrants, empowerment initiatives, community-based interventions, and prevention education within immigrant communities are essential. These initiatives can empower women and other marginalized groups, allowing them to advocate for their rights, seek support, and break out of cycles of violence. To sum up, addressing gender-based violence against migrants necessitates a comprehensive strategy that includes legal reforms, strong support structures, prevention strategies, and partnerships between governments, non-governmental organizations, and local communities. By focusing on the security, dignity, and human rights of migrants who are victims of gender-based violence, societies can create a more inclusive and equal future for everyone, regardless of immigration status.

REFERENCES

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https://www.unwomen.org/en/digital-library/publications/2021/10/policy-brief-from-evidence-to-action-tackling-gbv-against-migrant-women-and-girls

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