United against gender violence: Europeans struggle to provide protection for migrants.

AuthorTsankov, Mimi E.
PositionV. European Union Member State Protection Survey J. Austria through VI. Conclusion, with footnotes, p. 211-245
  1. Austria

    Austria ratified the ECHR in September 1958. (467) It signed the CEDAW in July 1980, and later ratified it in March 1982. (468) It ratified the CEDAW Optional Protocol in September 2000, (469) as well as the Istanbul Convention in November 2013. (470) Austria reported on its obligations under the CEDAW through an initial report in October 1983, (471) and five periodic reports thereafter, with the most recent report issued in May 201 1. (472)

    Asylum protection in Austria is governed by Article 3 of the Federal Law Concerning the Granting of Asylum, and tracks the refugee definition articulated in the 1951 Refugee Convention. (473) However, with regard to relief under asylum law, particular social group claims based on domestic violence and gender do not yet appear to have been recognized under current legal jurisprudence, although it has been reported that such claims may be possible. (474) State reporting under the CEDAW reflects that Austria believes that the law enables migrant female domestic violence victims to receive work permits so that they can gain more independence and earn a living; (475) and permits the review of asylum claims in an environment sensitized to the "special needs of women refugees." (476)

    The Aliens' Police Act governs deferral of deportation protections if a deportation would violate non-refoulement obligations. (477) Subsidiary protections are governed by Article 8 of the Federal Law Concerning the Granting of Asylum, which supports a limited right of residence valid for one year that can be extended upon application. (478) Humanitarian relief is available pursuant to the Residence Act of 2005. (479) Austria reports that it has in place a system for granting migrant women who have come to the country through family reunification an independent residence permit to protect them from domestic violence. (480) Under current law, if the family member of a person with subsidiary status is outside Austria, that person is granted entry only following the first extension of the limited right of residence of the family member who enjoys subsidiary protection. (481) Thus, the legal status of the family member depends on the legal status of the sponsor. (482) Austria reports that the legal system includes a procedure to reduce the burden of proof regarding criteria for migrant applicants who are victims of domestic violence. (483)

    Austria's 2012 HD1 worldwide ranking is eighteenth. (484) Its 2012 Gil worldwide ranking is fourteenth. (485) Austria reports that it strives to provide effective and timely safety protections to victims of domestic violence. (486) It maintains a national helpline with multi-lingual support. (487) There were thirty women's shelters in place in 2012, meeting approximately 90 percent of the reported need. (488) Stakeholders have called for improved public safety measures such as the enforcement of injunctive relief (489) and the creation of geographically dispersed shelters. (490)

    In February 2013, the CEDAW Committee requested that Austria provide further information about measures being taken to address "violence against women in migrant communities," and "the negative impact of increasing xenophobia in the media on women from migrant communities, particularly Muslim women." (491) With regard to residence permits issued to victims of violence, the CEDAW Committee "expressed concern that they were issued for one year only," and that they were "subject to strict criteria," requesting information about the process for extension. (492)

  2. Spain

    Spain ratified the ECHR in October 1979. (493) It ratified the CEDAW in January 1984, (494) as well as the Optional Protocol in June 2001. (495) It signed the Istanbul Convention in May 2011, and ratified it in April 2014. (496) Spain issued its first CEDAW report in August 1985, (497) and six periodic reports thereafter, with the latest in September 2013. (498)

    During the most recent reporting period, Spain's policies "focused almost exclusively on combating violence against women committed by men who are or have been their spouse or partner." (499) With a view to enabling victims to pursue both civil and criminal law avenues of redress and settling all related legal matters such as divorce, custody, and property questions, the Spanish Integrated Protection Measures against Gender Violence Act set up specific "gender violence" courts. (500) These courts, a special branch of the criminal courts with investigating judges, are granted the power to rule on criminal cases involving violence against women as well as any related civil law cases. (501) Consequently, both are dealt with in the first instance by the same bench. This relieves women going to court and costly bureaucratic hurdles.

    Similar to many other EU-M States, foreign women suffer more abuse than Spanish women of the same age in Spain. (502) Specifically, "7 [percent] of foreign women declared that they had been victims of abuse during the last year, double the figure for Spanish women (3.5 [percent]). In the case of 'technical abuse', these differences again appear (17.3 [percent] versus 9.3 [percent])." (503) Royal Decree 2393/2004 attempts to address these figures by allowing victims who have protection orders to request temporary residence. (504) Between the third quarter of 2005 and the second quarter of 2008, between 29.4 percent and 36.9 percent of foreign women were granted protection orders. (505) These women have the ability to apply for a residence permit on account of exceptional circumstances. (506) The CEDAW Committee noted that, while this statistic indicates victims' greater access to justice, it also indicates that there has not been a reduction in gender-based violence. (507)

    The general rights of asylum seekers and migrants are guaranteed by the Spanish Constitution, and are further guaranteed through supplemental legislation. (508) The Spanish Asylum Law provides for subsidiary protection and expands gender-based refugee relief. (509) Asylum-seekers, like all arriving migrants, have a right to free legal assistance. (510) "The Spanish Asylum Act stipulates that legal aid is mandatory when claims for asylum are made at the border." (511) Spanish law also guarantees the right to an interpreter. (512)

    Spain's asylum legislation includes, as part of their particular social group definition, "people that flee from their country of origin, due to the prevailing circumstances in those countries, because of a well-founded fear of persecution or for reasons of gender and/or age." (513) The interpretation of this article has developed to include sexual assault victims as a particular social group. (514) The legislation further declares that either state actors or non-state actors under certain circumstances, may carry out such persecution. (515) As a practical matter, authorities cite to the UNHCR Gender-Based Guidelines in adjudicating cases. (516) Spain's highest appellate body affirmed this through case 1528/2007, involving an Algerian applicant who claimed relief based on domestic violence. (517) The claim involved gender-based persecution in the form of physical and mental abuse inflicted on the asylum-seeker, and her children, by her husband. (518) When the claim was initially examined, refugee status was denied, but a residence permit was granted on humanitarian grounds. (519) The National High Court issued its ruling in January 2009, concluding that, "[s]exually violent acts, domestic and family violence, that cause deep physical and mental harm constitute grounds upon which persecution can be claimed." (520) The decision affirmed that when non-state actors commit serious acts of discrimination and other offences, which "are deliberately tolerated by State authorities" who fail to provide effective protection, asylum can be granted. (521)

    The Special Rapporteur on the rights of non-citizens has expressed concern about the situation of foreign women workers in domestic service, asylum-seekers, and women who may otherwise be living clandestinely in Spain. (522) These women may lack adequate protection from violence and abuse. Spain's 2012 HDI worldwide ranking is twenty-third. (523) Its 2012 GII worldwide ranking is fifteenth. (524) Spain does, however, have a national women's hotline, that is staffed twenty-four hours a day, offers free long distance calling, and provides translation services. (525) As of 2012, Spain had in place 148 shelters, addressing about 98 percent of the reported need. (526)

    L. Portugal

    Portugal ratified the ECHR on November 1978. (527) It ratified the CEDAW on July 30, 1980, (528) as well as the Optional Protocol to the Convention on April 26, 2002. (529) It ratified the Istanbul Convention in February 2013. (530) Portugal issued its first report under its CEDAW obligations in July 1983, (531) and submitted seven periodic reports thereafter. (532) In its most recent submission, Portugal reports that pursuant to Law 29/2012, an exception now exists "for granting an autonomous residence permit to family members of a holder of a residence permit before the expiration of the normal time limit [] if the individual is 'indicted by prosecutors for committing the crime of domestic violence.'" (533) Previously, the law required that the individual be convicted of a crime of domestic violence. (534)

    Portugal's 2012 HDI worldwide ranking is forty-third. (535) Its 2012 GII worldwide ranking is sixteenth. (536) As of 2012, Portugal did not have in place a national women's hotline, (537) and, it had thirty-seven shelters that met 59 percent of the reported need. (538)

  3. Ireland

    Ireland ratified the ECHR in February 1953. (539) It ratified the CEDAW in December 1985, (540) as well as the Optional Protocol in September 2000. (541) It has neither signed nor ratified the Istanbul Convention. (542) Ireland reported on its obligations under the CEDAW through an initial report in February 1987, (543) and submitted two reports...

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