Migration and human rights: The law as a reinforcer of gendered borders

Abstract

Borders follow migrants even inside the territory of their State of destination. These ‘sticky’ figurative borders may flow directly from immigration norms and practice or indirectly from other areas of law. This Special Issue focuses on the gendered nature of these borders, as they rely on/reinforce socially constructed norms of masculinity and femininity. As a result, these figurative borders undermine the equal enjoyment of human rights of migrants, refugees and asylum seekers along gender lines. Specifically, gendered borders are analysed in relation to the themes of asylum, domestic labour and gender-based violence. The human rights of migrants, refugees and asylum seekers in these domains are analysed in an integrated and complex fashion. The analysis demonstrates that migrants, refugees and asylum seekers navigate and challenge not only sticky figurative borders, but also borders between different areas of law. The (non)interaction between these different areas of law may equally create or reinforce unequal human rights protection along gender lines. The law, across different areas and through the workings of diverse categories, definitions and standards, may thus work as a border-reinforcer.

Introduction

In recent years, and amidst deteriorating socio-economic conditions and terror attacks, various States have tightened their immigration policies in an attempt to affirm external and internal borders. ¹ These policies do not only try to discourage non-nationals from reaching and crossing State territorial borders from the outside. ² Immigration policies follow migrants inside State borders, limiting their human rights and sometimes creating conditions ripe for human rights abuses. ³ Far from being neutral, the borders flowing from immigration control create categories of people and place them in unequal power relations with others. ⁴

Human rights scholars have challenged the neutrality of these borders, drawing attention to the gender inequalities that they (re)create and to international human rights law’s potential and limits to address these inequalities. ⁵ This Special Issue seeks to contribute to the efforts of these scholars by paying close attention to the borders that follow migrants inside State territory, ‘sticking’ on some people more than others. These borders are mostly figurative but are yet linked to the fact of literally crossing/having crossed a physical border. One may think of them as ‘sticky borders’ or as the law as a border-reinforcer. Sticky figurative borders may flow directly from immigration norms and practice on access, residence and removal or indirectly from other areas of law, including asylum, labour and even human rights law.

These borders, in turn, interact with and reinforce other figurative borders in society, including gendered borders. The borders discussed in this issue are gendered largely because they rely on/reinforce socially constructed norms of masculinity and femininity, often valuing the attributes, roles, behaviours and ambits associated with the former over those associated with the latter. ⁶ As a result, these borders undermine the equal enjoyment of human rights of migrants, refugees and asylum seekers along gender lines. For present purposes, borders are roughly understood as lines that separate, categorise and exclude some groups of people and that in the process act as barriers to fully enjoying human rights.

The contributors to this Special Issue thus scrutinise the gender inequalities flowing from figurative borders reinforced by legislation, reasoning, standards and categories in different areas of law at the domestic (eg labour law), regional (eg EU law, European Convention human rights law) and international levels (eg international refugee law). Think of legislation that reinforces gender power imbalances in work and family relations. Natalie Sedacca, for instance, discusses the dependent status that immigration norms may create for migrants who perform domestic work – which in practice is largely carried out by women and less valued than other types of work. Vladislava Stoyanova, in turn, looks at EU law that makes some groups of people dependent on the status of their spouses/partners to enjoy residence rights, highlighting the difficulties that victims of domestic violence may face as a result of this dependency. ⁷ Other gendered borders may flow from categorisations that in turn reflect the well-known gendered public/private divide. ⁸ In this Special Issue, examples reflecting this divide include State and non-State harms in human rights law, ⁹ domestic work and ‘real work’ in labour law ¹⁰ and visible and invisible human rights violations in asylum law. ¹¹

Christel Querton shows in this Special Issue that even certain gender-related categories may contain exclusionary borders. Focusing on the category of ‘gender-related asylum claims’, she argues that this category is equated with ‘women’s asylum claims’ and therefore limited to harms commonly suffered by women such as rape and female genital mutilation. Querton proposes moving beyond this categorisation to also include others who may be persecuted for not conforming to gender norms. She argues that, rather than being confined to one particular claim of persecution, gender should be deployed across a continuum in the assessment of all claims for international protection.

This Special Issue thus reflects on various kinds of gendered borders across three key themes: asylum, domestic labour, and gender-based violence. The contributors discuss several groups that may be affected by these borders, including female migrant domestic workers, migrant women victims of domestic violence, women asylum seekers and sexual minority members seeking international protection. The human rights at stake in the cases examined include rights as varied as the right to life, the right to respect for physical integrity, the right to work, the right to respect for private and family life and the right to rest and leisure.

While most contributors focus on Europe – EU and Council of Europe (‘CoE’) law – some authors integrate into their analyses international law instruments such as the 2011 International Labour Organization Convention No 189 on Domestic Work, ¹² the 1951 Convention Relating to the Status of Refugees (‘Refugee Convention’) ¹³ and the 1979 Convention on the Elimination of all Forms of Discrimination Against Women (‘CEDAW’). ¹⁴ The result, in nearly all contributions, is an analysis of the human rights of migrants, refugees and asylum seekers in a complex and integrated fashion. ¹⁵ Some authors go even further and supplement this integrated approach with country case studies or examples from domestic jurisdictions. For instance, Natalie Sedacca focuses her discussion on Chile and the United Kingdom while Carmelo Danisi illustrates his analysis with cases from countries such as France and Italy.

Contributors thus bring into sharp focus the following point so far insufficiently explored in human rights law literature. Migrants, refugees and asylum seekers of diverse genders and sexual orientations navigate and challenge not only sticky figurative borders such as the ones outlined above. In the process, they may also navigate, challenge and even shift the borders between areas of law, including those between international human rights law and international refugee law; ¹⁶ CoE law and EU law; ¹⁷ and national immigration law and labour law. ¹⁸ As the articles in this Issue show, the (non)interaction between these different areas of law may also create or reinforce unequal human rights protection for migrants, refugees and asylum seekers along gender lines.

Some authors explore the potential of international and regional human rights law to push for more robust protection of migrant women, of asylum seekers fleeing homophobia and of all asylum seekers harmed by gender norms in their home countries. Vladislava Stoyanova, for instance, discusses the potential of the CoE Convention on Preventing and Combating Violence against Women and Domestic Violence (‘Istanbul Convention’) for strengthening the protection of migrant women victims of domestic violence in EU law. Christel Querton looks at the Istanbul Convention and CEDAW, proposing that States use gender as understood in these instruments when taking gender into account to interpret the refugee definition of the Refugee Convention. Carmelo Danisi similarly unveils the positive role that international human rights law may further play in complementing international refugee law to protect sexual minorities.

Overview of Special Issue

Natalie Sedacca addresses a human right of domestic workers not commonly explored in human rights law literature: the right to respect for private and family life. Her focus provides a fresh approach in that it allows for analysing issues that are not usually considered within the scope of labour law, such as domestic workers’ right to reunite with their families. The argument is that the lens of the right to private and family life provides for a different perspective on the issue of working time. Sedacca discusses barriers to realising domestic workers’ right to respect for private and family life. These barriers, she argues, flow from immigration law controls and visa conditions that render domestic workers dependent on their employers. The article also looks at the effects of the public/private divide in labour law, which oftentimes distinguishes domestic work from other types of work and devalues work performed in the private sphere. Sedacca shows how domestic employees are consequently expected to work unrestricted hours to the detriment of their own private and family life. She addresses these human rights issues by analysing a case study, as observed above, from Latin America and Europe: Chile and the United Kingdom.

Vladislava Stoyanova also focuses on the dependent status created by law for certain groups of non-nationals, albeit in the family context. As she reminds us, ‘[i]mmigration law creates power imbalances when one family member derives residence rights through the other’. Stoyanova further recalls that these power imbalances become exacerbated when family relations are characterised by domestic violence. Her article juxtaposes EU law and CoE law to assess convergences and divergences in addressing the dilemma dependant migrant women victims of domestic violence face: leaving the abusive relationship and risking losing their residence rights, on one side, or tolerating the abuse in order to retain their residence rights, on the other. Using the CJEU judgment in Secretary of State for the Home Department v NA as a focus, Stoyanova exposes some weaknesses in EU law in addressing the insecurity migrant women victims of domestic violence face in relation to their residence rights. ¹⁹ She assesses the potential of the Istanbul Convention to address these weaknesses in light of the EU’s recent signature of this regional Convention on violence against women.

Janna Wessels further explores the theme of domestic violence against non-national women but the focus is this time the case law of the European Court of Human Rights (‘ECtHR’). Her concern revolves around the borders faced by women fleeing ‘private’ violence from countries located outside the CoE when claiming non-refoulement before the Strasbourg Court. These borders, according to Wessels, are embedded in the different standards applied within Article 3 European Convention on Human Rights (‘ECHR’) case law. To develop her arguments, she offers two original sets of comparison within this case law. The first set involves cases concerning women who suffer domestic violence within the CoE and cases concerning women who seek international protection from domestic violence occurring outside the CoE. The second set of comparison involves non-refoulement cases brought by non-national women fleeing harm from non-State actors and non-refoulement cases brought by non-national men escaping harm from State actors. Wessels exposes various dissonances across the Court’s Article 3 ECHR reasoning in these groups of cases to argue that the human rights of migrant women ‘are limited by two intersecting and mutually reinforcing inequalities – both as migrants and as women’. ²⁰

The two other contributions of this Special Issue look at the interaction between two major areas of international law: international refugee law (‘IRL’) and international human rights law (‘IHRL’). Carmelo Danisi recalls that in recent years both IRL and IHRL have been increasingly receptive to the claims of sexual minorities. He argues that, despite these positive simultaneous developments in both IRL and IHRL, the interaction between these two areas of international law has not always led to a more rights-protecting outcome. Using mainly examples from EU and ECHR jurisprudence as well as qualitative data, his contribution unveils the positive role that IHRL may play in complementing IRL to protect people fleeing homophobia. Danisi argues that IHRL may positively interact with IRL in two ways.

First, IHRL may help establish State obligations to facilitate claimants’ access to asylum determination procedures in States bound both by human rights treaties and by the Refugee Convention. The aim, he argues, is to avoid exposing those fleeing homophobia to additional abuses when they express their intention to submit an application for international protection before the receiving state authorities. Second, in line with the Vienna Convention on the Law of Treaties, IHRL may inform the notion of persecution used in IRL more comprehensively than it does at the moment. In particular, he observes, ‘only an approach to the Refugee Convention that avoids borders between “permissible” human rights violations and human rights violations leading to persecution, while stressing the effect of any human rights violations on the individual, can ensure that IHRL is appropriately considered in asylum claims’. ²¹

Christel Querton challenges the category ‘gender-related asylum claims,’ which she notes has been used in international refugee law scholarship to encompass a range of harms commonly inflicted on women: domestic violence, female genital mutilation, rape, among others. Based on the general rules of treaty interpretation in international law, she argues for going beyond this category and for establishing a legal duty on State Parties to the Refugee Convention ‘to take gender into account’ when interpreting the refugee definition. Querton goes on to outline the scope of this State duty by reference to international human rights norms, showing that these norms are relevant to interpret the Refugee Convention. Thus, pointing to developments in CEDAW and the Istanbul Convention, Querton proposes that States are required to take into account gender understood ‘as a hierarchy of social power’ that is essential to ‘explain and understand the nature, causes of and responses to violence’. She observes that gender is not solely relevant to interpret the concept of persecution but also to determine the availability of State protection and the grounds of persecution. Ultimately, she claims, a State duty to take gender into account will encourage a ‘more inclusive interpretation of the refugee definition to the benefit of all refugees’. ²²

The five articles in this Special Issue are a reminder that people do not leave borders behind at State territorial edges. ²³ Borders, in a figurative sense, may be ‘sticky’. They may undermine people’s (equal) enjoyment of human rights even when they are legally allowed to stay and live inside a State territory. The law, across different areas and through the workings of diverse categories, definitions and standards, may work as a border-reinforcer. We hope that this Special Issue contributes to raising awareness about these and other types of borders that may impede migrants, refugees and asylum seekers from equally enjoying human rights. Our hope is, moreover, that we will encourage scholars to continue thinking about the human rights implications of borders and, in that way, contribute to advancing scholarship on human rights and migration.