This article has been written by Ms. Manasvi Anand a first year student of Christ (Deemed to be University) Delhi NCR. 

ABSTRACT

Migrant women and girls must be granted specific legal safeguards to defend their rights and well-being, since they encounter unique obstacles. This article highlights the pressing need for comprehensive structures that address the specific vulnerabilities faced by migrating women and delves into the complex challenges underlying their legal landscape. Women and girls who migrate frequently face a confluence of structural obstacles, migration-related difficulties, and prejudice based on gender that need expert legal assistance. These difficulties range from increased dangers of gender-based assault when migrating to dealing with prejudice in the nations where one is living. This article examines the current international legal frameworks aimed at safeguarding the rights of women and migrants, and assesses the degree to which these provisions adequately cater to the unique requirements of female migrants. It highlights the need for gender-sensitive immigration policy by pointing out loopholes in safeguards and enforcement measures. Furthermore, the article also examines the intersectionality of variables that exacerbate the risks experienced by migratory women and girls, including age, ethnicity, socioeconomic level, and immigration status. It emphasizes how important it is to provide individualized legal remedies that take into account the complexity of their situations.

KEYWORDS – Migrant, Women, Legal, Framework, Intersectionality, Challenges, Gender-Based, Policy

INTRODUCTION

There are 281 million foreign migrants worldwide, of which women and girls make up roughly half. People relocate internationally for a variety of reasons, including to be around their families, to pursue job development possibilities, to study, and to follow life’s opportunities. Others are forced to relocate due to violence, poverty, political unrest, and insecurity. Migration is gendered, from the motivations behind moves to the experiences people have at every point of their travels. Many migrating women and girls nevertheless confront hazards unique to their gender, migratory status, mode of migration, and the geopolitical circumstances of their movement, despite the fact that migration may be a choice, an expression of agency, and a means of achieving women’s empowerment. Girls and women who migrate are more vulnerable to forced labour, sexual exploitation, gender-based violence, and human trafficking, especially if they are unable to use secure and regular migratory routes.

They run the danger of being victims of labour exploitation, particularly if they work in the unregulated or poorly regulated industries. Girls are more vulnerable to human rights breaches, particularly if they are alone or have been split up from their family. Migration laws, regulations, and practices have the potential to discriminate against individuals based on their gender, perpetuating and escalating pre-existing disparities that disproportionately affect women. Certain states forbid women who are expecting or who have small children from traveling overseas for employment. Others put discriminatory limitations on women’s freedom of movement, such the requirement that they get a male guardian’s consent before departing the country. In order to maintain conventional gendered labour divides, several nations also expel pregnant immigrant women, forbid them from marrying natives, and limit their career opportunities. Gender inequality may be strengthened by nationality laws. The most current data available indicates that 50 nations have gender-discriminatory nationality rules, and 25 countries have laws concerning nationality that prohibit women from giving their children citizenship on an equal footing with males. These include denying women the same rights as males to grant citizenship to a non-citizen husband and taking away a woman’s acquired citizenship in the event of a divorce. These policies impair women’s capacity to assert their rights and enhance the precarity of migrating women, particularly their danger of becoming stateless. 

GENDER-BASED HAZARDS IN MIGRATION

The risks that women, girls, and people of gender diversity face when migrating depend on a variety of intersecting factors, such as their migration status, how they migrate, the geopolitical scenarios of their movement, and elements of their identities (which include sexual preference, gender, physical characteristics, ethnic background, age, and ailments).

For many women and girls, regular migration channels across borders are unavailable because they lack travel documentation, are unable to get a visa, or cannot afford to travel. The only paths accessible to women in such situations are illegal ones, which put them at a far increased risk of abuse and exploitation, including human trafficking. Migrant women may choose to travel via unauthorized and frequently hazardous routes more frequently as a result of state policies like the militarization, privatization, and externalization of border restrictions; objections and collaborative displacement at land and maritime borders; and the adoption of technological devices for surveillance in border enforcement. Several studies demonstrate that during these covert travels, women frequently find themselves in the hands of males and run a higher risk of being raped or coerced into having transactional or survival sex in order to ensure their safety. About 60 to 80 percent of migrant women who cross Mexico on their way to the United States are thought to have been raped at some stage, but the number is closer to 90 percent if they come via the central Mediterranean route.

 Migrant women are more likely to be abused and used by fraudulent smugglers, employers, and service providers when they are in an irregular circumstance. It results in their exclusion from vital services, such as those provided to victims and survivors of forced labour, human trafficking, and gender-based violence. Fearing arrest and deportation, migrant women in irregular situations could be reluctant to ask for protection and support coming from state authorities. The pervasive practice of immigration detention has resulted in the division of families and the imprisonment of people who are vulnerable, such as children, women who are expecting or nursing, people with disabilities, asylum seekers, and victims of abuse. Around the globe, there is ample evidence of the grave and permanent harm that immigration detention does to mental health. In an Australian study of women detained for migration, 88.9% of the participants had at least one mental health issue related to the terms, length, and uncertainty of their imprisonment. These disorders varied between anxiety to suicidal thoughts, depression, and post-traumatic stress disorder. 

When there are insufficient regulatory frameworks in place to safeguard the rights of women workers, the likelihood of labour rights breaches increases. Individuals functioning in the unregulated industry, doing sex work, and doing household chores are among those who are most vulnerable. Women and girls who have lost their freedom, are victims of forced labour or human trafficking, or are forcibly relocated are also at a high risk because, in these unstable circumstances, they are more likely to experience violence or human rights violations and have fewer opportunities to stand up for what is right for them.

INTERNATIONAL FRAMEWORK GOVERNING LEGAL PROTECTION FOR MIGRANT WOMEN AND GIRLS 

An array of mechanisms have been established by the international community to safeguard female migrant workers.

• The primary tool for the protection of this specific group is the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 1990. In line with the idea of equality for everyone, it bestows human rights on the migrant community, ensuring that they can exercise such rights irrespective of their position as women migrants.
• The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, 1979) aims to provide long-term solutions for gender-based discrimination and exclusion, which, when paired with other factors like age, profession, country of origin, race, and financial status, restricts the ability of women migrant workers to exercise their rights.
• The CEDAW General Recommendation No. 26 (2008) delves deeply into the factors that lead to the unique vulnerability of numerous migrant women and their encounters with discrimination based on gender and sexual orientation. It recognizes this vulnerability as a root cause and an outcome of human rights violations. This suggestion highlights the fact that gender is not irrelevant in migration, since the process of moving has distinct effects on both men and women. It contends that a gender perspective must be included in the examination of female migration and in the development of laws and policies intended to reduce discrimination and violence against women, advance their rights, and ensure their social and economic integration.
• Adopted in 1989, the Convention on the Rights of the Child (CRC) addresses the rights of children, including those who are migrants. It acknowledges that children have the right to identity preservation, reunification with their families, and to be safeguarded from exploitation. As youngsters, migrant girls are benefitted from the protections provided by the CRC.
• Women and girls are among the refugees who get protection and aid from the United Nations High Commissioner for Refugees (UNHCR), established in 1950. Important international agreements regulating the liberties of refugees include the 1951 Refugee Convention and its 1967 Protocol, which contain rules pertaining to the security of women. In order to meet the unique needs of refugee women, UNHCR operates tightly with government officials to strengthen their own fortitude and strength, assist them in overcoming obstacles to work and education, provide them with opportunities, and enhance their own lives as well as the lives of their children and families by encouraging their active engagement and empowerment. UNHCR’s top priority areas of work continue to be the prevention of all types of sexual and gender-based abuse and attending to the needs of survivors within the larger context of gender equality mainstreaming and empowerment.
• The International agency for Migration (IOM), 1951 is an international agency that addresses worldwide migration concerns. IOM is dedicated to ensuring that the unique needs of all migrant women are recognized, taken into account, and addressed by IOM programs and services. This is achieved via the implementation of its gender mainstreaming strategy. This translates, among other things, into the organization’s promise to address the problem of violence against migrant women in order to support their social, economic, and physical well-being in accordance with the decision of the UN General Assembly. IOM suggests that women migrant employees enjoy the same chance to legal redress procedures, protection, and safety at work as those employed domestically in order to foster an atmosphere that is supportive of safe and empowering migration.
• The Global Compact for Safe, Orderly and Regular Migration (GCM), which came into force in 2018, is a non-enforceable international treaty with the goal of enhancing collaboration between nations on migration. Its goals address the unique needs of women and children who migrate, as well as gender-inclusive migration policy.
• Numerous conventions of the International Labour Organization (ILO), 1919 enhance the safeguarding of the rights of migratory workers, particularly women. Specifically, the Domestic Workers Convention (No. 189) (2011), an important instrument that helps to ensure the rights of migrant women working as domestic servants. 

CHALLENGES WITH WOMEN MIGRANTS’ LEGAL PROTECTION

When it comes to receiving protection from the law, migrant women and girls frequently encounter several obstacles. Their particular vulnerabilities are caused by their position as migrants and are frequently made worse by prejudice based on gender. Below we will discuss the challenges associated with legal protection for women migrants’.

• Absence of a Comprehensive and Unified Regulatory Framework – One of the main issues is the lack of a consistent legal framework on a worldwide scale. Girls and women who migrate frequently get caught in a web between several legal systems, receiving insufficient assistance and uneven protection. A number of European and Latin American nations have enacted law changes pertaining to migrant workers’ labour and human rights. However, a lot of the destination nations in Asia and the Middle East still haven’t acknowledged migrant workers’ rights or taken any action to protect them.
• Gender-Specific Bias – Women and girls who migrate commonly face prejudice based on their gender, which leaves them more open to abuse and exploitation. Having access to legal assistance and safeguards is hampered by discriminatory regulations and procedures in both the nations of origin and destination, which worsens their situation.
• Restricted Legal Service Access – Many immigrant women and girls encounter difficulties getting access to legal assistance. They are vulnerable to exploitation since it is difficult for them to comprehend and negotiate the legal frameworks of their host nations due to language problems, informational gaps, and financial limitations.
• Substandard Safeguards at Detention Centres – Abuse, poor living circumstances, and inadequate medical care are standard procedure for migrant women and girls, particularly those who are imprisoned. Their general vulnerability is increased by the lack of protections in prison settings.
• Roadblocks in Reporting Assault – Many migrant women and girls are reluctant to report abuse because they fear reprisal, don’t trust the authorities, and are worried about their immigration status. The abusers’ continues to take advantage of their weaknesses without consequence; this silence feeds the victimization cycle.
• Insufficient Information – Many women may make the choice to move based on erroneous assumptions, inadequate knowledge of the steps involved in the migration process, and incomplete information about job prospects. They can also be incapable of paying for bills and lacking in expertise. They therefore, find themselves in erratic and exploitative circumstances.
• Operating in the Informal Sector – The majority of migrant women work in the 3D sector, where they are often solitary and have little possibilities to create social networks. They typically work in the unorganized sector, which is exempt from social security and labour laws. They thus have restricted access to social assistance and legal protection.

STRATEGIES TO STRENGTHEN LEGAL PROTECTION

• • Improve the availability of frequent, safe, and orderly migration routes – States should ensure that women and girls have a chance to secure, regular migratory routes that uphold their rights, encourage them to utilize their autonomy, and end all kinds of discrimination that restrict their movement and job prospects. This entails removing gender-specific restrictions that prevent women from leaving their country of origin; doing away with the need for them to get consent from a male guardian in order to acquire a passport; making sure that visa programs refrain from discriminating against women by, for example, limiting their employment options to specific job types; and so on.

• Put an end to any sort of violence directed at migrant women – States should denounce any sort of harassment and abuse directed at immigrant women and should not use any excuse to justify the continuation of violence on the basis of tradition or religion. It should implement laws or other policies that criminalize and penalize every kind of assault and bullying against migrant women. It should provide precise criteria for prosecuting offenders while keeping them accountable for their deeds and implement gender-inclusive budgeting to make sure there are enough funds to carry them out.

• Ensure to end migrant women’s trafficking and enslavement – States shall introduce and put into effect effective laws, initiatives, and various other mechanisms that are victim- and survivor-centred, gender-inclusive, and aimed at preventing any type of forced labour and human trafficking of migrant women.
• Provide a means of obtaining decent job – States should establish employment mobility arrangements at the bilateral, regional, and multilateral levels that require decent jobs and social protection; forbid discrimination on the basis of gender and job segregation, involving those who work for the informal sector.
• Education and Health – The general well-being of migrant girls depends on ensuring their access to both medical care and schooling. Policies that ensure all individuals have an equal right to these facilities regardless of their immigration status help create a more welcoming and safer environment.
• Easy Access to Legal Assistance – It is important to focus on giving migratory women and girls easy access to legal aid. This involves putting people’s rights and legal options into the hands of the community through programs like legal assistance, multilingual awareness programs, and community-based groups of support.
• Fostering Confidence and Trust – It’s critical to establish secure environment where migrant women and girls may report abuse without worrying about facing backlash. Developing private reporting channels, guaranteeing confidentiality, and offering emotional support are all necessary to motivate sufferers to step forward and pursue justice.

CONCLUSION

At the international and national levels, addressing the issues with migrant women’s and girls’ protection under the law necessitates an all-encompassing and cooperative strategy. We may fight towards a more equitable and encompassing legal structure that safeguards the rights and integrity of migratory women and girls globally by recognizing the distinctive interconnectedness of their lived realities, putting targeted solutions into practice, and encouraging international collaboration.

REFERENCES

1. The research paper “Protection of Women Human Rights Defenders at Risk in Migration Contexts” published by UN Women, the link for the same is herein :https://www.unwomen.org/sites/default/files/2022-11/Recommendations-on-the-protection-of-migrant-women-human-rights-defenders-en.pdf
2. The research paper “Protecting Women Human Rights Defenders in Migration Contexts” published by UN Women, the link for the same is herein: https://www.unwomen.org/sites/default/files/2023-06/Policy-brief-Protecting-women-human-rights-defenders-in-migration-contexts-en.pdf
3. The research paper “Women Migrant Workers’ Human Rights” published by UN Women, the link for the same is herein: https://www.ohchr.org/sites/default/files/Documents/Issues/SRMigrants/submissions/Mexico_HRC-DF_Annex16_Submission_GA-Report.pdf
4. The research paper “Working to Prevent and Address Violence Against Women Migrant Workers” published by International Organisation for Migration, the link for the same is herein: https://kmhub.iom.int/sites/default/files/2022-02/working_to_prevent_and_address_violence_against_women_migrant_workers_0.pdf
5. The research paper “Rights of Migrant Women : A Child Rights Perspective” published by Global Forum on Migration and Development, the link for the same is herein: https://madenetwork.org/sites/default/files/BP%204%20Rights%20of%20migrant%20women%20-%20web.pdf
6. The research paper “Protecting Refugees” published by United Nations High Commission for Refugees (UNHCR), the link for the same is herein: https://www.unhcr.org/cy/wp-content/uploads/sites/41/2018/05/UNHCR_Brochure_EN.pdf
7. The research paper “Working to Prevent and Address Violence against Women Migrant Workers” published by International Organization for Migration, the link for the same is herein: https://www.iom.int/sites/g/files/tmzbdl486/files/jahia/webdav/shared/shared/mainsite/microsites/IDM/workshops/ensuring_protection_070909/prevent_violence_against_wmw_2009.pdf
8. The article “Gender and Migration : Why are Women more Vulnerable” originally published by Mary Kawar, the link for the same is herein: https://books.openedition.org/iheid/6256#:~:text=During%20the%20decision%20to%20migrate,in%20irregular%20and%20exploitative%20situations.