Whose rights are we talking about when we talk about women’s rights on 8th of March?

While everyone can be affected by Sexual and Gender Based Violence (SGBV), migrant and refugee women and feminized people affected by racism, sexism and institutional violence are much more exposed and vulnerable to it. In addition to the insufficient protection against violence and support structures, they face particular barriers derived from their situation as migrants in Germany that hinder their access to justice and the enforcement of their rights.

This 8th of March, the International Women’s Day was celebrated in Germany. Over a hundred years since the proclamation of this day, the struggles of organized women and sexual dissidents have made great accomplishments in the country, nevertheless there is still a long way to go to achieve substantive equality between men, women and LGBTQ+ people. For despite Germany’s self-conception as an egalitarian democracy where women’s and feminized people’s rights are guaranteed, the increasing levels of sexual and gender-based violence in the country are deeply worrying and reflect the ongoing inequalities. While Germany has implemented several regulations, standards and declarations for the enforcement of women’s rights, the statistics on violence against women and feminized people in the country show an ever-increasing problem. One attempted feminicide a day in Germany and one concluded every three days. In addition, two rapes per day are recorded in the capital city Berlin. This is only based on the number of registered cases, which leads us to assume larger numbers outside the official data and even more in the context of the pandemic. Refugee and asylum-seeking women and feminized people are more vulnerable to this risk both in the camps and reception centers and outside of them.  For them justice has deaf ears and is extremely slow.

Refugee women and feminized people affected by SGBV in Germany

Evidence of the aforementioned is the feminicide of  Rita Awour Ojungé, a 32-year-old woman from Kenya who, after her deportation was suspended, had been living in the accommodation center Hohenleipisch in Brandenburg. After seven years living there with her two children, Rita was reported missing on April 7th 2019 by her partner and even though she left her belongings and children at home, the authorities did not react. The police started a search in the woods around the center on June 11th after repeated pressure from her husband and from “Opferperspektive e.V.”, an organisation for victims of right wing violence and racial discrimination. A few days later, her remains were found barely 200 meters from the field where she lived. In the two years since, the authorities have not been able to solve this crime and despite the numerous protests for its closure, the Hohenleipisch center continues operating.

Rita’s feminicide is not an exception but adds to the list of cases like those of  Hannah or Homma Z. and her daughter Tajala to name but a few. The reported lack of action of the police in their cases raises the question whether the German authorities complied with their obligations in accordance with the Istanbul Convention, which came into force as of 2018 in Germany and aims to “prevent, prosecute and eliminate all forms of violence and discrimination against women and domestic violence”. The non-discrimination principle contained in Article 4 stipulates that the state is required to recognise, secure and protect the human rights of the victims present within their jurisdiction irrespective or their migrant or refugee status.

In addition to the insufficient protection against violence and the lack of support structures, these women and feminized people face particular barriers derived from their situation as migrants. Lack of knowledge of their rights and the functioning of the system, the language barrier and limited resources are some of the main ones. If these barriers are overcome, the women and feminized people affected might find their demands dismissed by the authorities, and might be discouraged from denouncing the violence they experience because of their migrant status, or they might simply be suggested to leave the city.  And even when it has been too late and the feminicides have been consummated, the authorities have been slow and inefficient. This has led self-organized women, family members, friends and activists to not only pressure the authorities to do their duty but have also carried out part of the investigations to clarify their deaths.

On top of the above, their feminicides are often covered by the press through insensitive and culturalizing reactions that reproduce racial and sexist stereotypes. They are also often instrumentalized to promote an anti-immigrant agenda. This hyper-visualization contrasts with an absence in the media of the stories of resistance, struggle and self-organization strategies with which they fight against the structures that oppress them as migrants and refugee women and feminized people in Germany.

Refugee and asylum-seeking women and feminized people like Rita, Hannah, or Homa and Tajala, are going through and have gone through long waits for the resolution of their asylum application, have been forced to live in isolation in shelters such as Hohenleipisch, whose terrible conditions have been repeatedly denounced by civil organizations and grassroots activists, and who in addition to being in overcrowded conditions during the pandemic, are deprived of privacy and safe spaces. Such conditions have increased their exposure to rapes and sexual harassment, psychological violence, domestic violence, stalking and in the most extreme cases feminicide. Lesbians and transgender women are even at greater risk of these forms of violence. The context in which this kind of abuse occurs, as well as the type of protection granted or the residence permit that these women and feminized people have, play a very important role in their ability to escape from the situation of violence.

Separations are often the context in which women and feminized people are at the highest risk of being victims of intimate partner violence. However, the asylum system’s shortcomings in terms of gender-perspective due to the lack of appropriate counseling and sensitization of the staff working in the authorities, as reported by the Status of the Istanbul Convention’s Implementation in Germany 2020, hinder effective protection for asylum-seeking and refugee women who face this situation. In addition, judges are unaware of the requirements of such international instruments and are not obliged to be trained in the enforcement of women’s rights in general nor in the area of intimate partner violence in particular which impedes their understanding of the ways in which this violence develops. This issue is particularly important when considering the situation of refugee women and feminized people who are going through a divorce when their residence permit is dependent on their husbands.

Women and feminized people with no independent residence permit

Divorces can affect the residential status of women and feminized people when they received protection as members of the refugee family due to their partner’s persecution, especially if the state considers that she has no individual reasons to flee and that she is therefore not at risk of persecution. The same applies in the case of residence permits granted for family reunification, as it is assumed that the reason for which the woman or feminized person obtained a residence permit is dissolved at the end of the marriage.

The result is that many women and feminized people are forced to remain in violent relationships as they fear losing their residence permit or being deported. The latter is a cause that also makes undocumented women and feminized people refrain from reporting abuses to the authorities. This is partly attributed to Germany’s lack of full implementation of fundamental agreements to combat violence such as the Istanbul Convention and the absence of a coordinated political strategy at all levels of government in this regard.

In its Article 59, Section 1, the Istanbul Convention states that married women and feminized people affected by intimate partner violence are entitled to an autonomous residence permit regardless of the duration of the marriage. However, Germany has reserved the right not to apply this article and continues to apply the German Residence Act which requires a minimum duration of marriage of 3 years for this purpose. The reservation extends to section 2 which stipulates the granting of an autonomous residence permit to those whose residence is dependent on their partner in case the latter is deported for having committed a crime, whereas Germany does not have any legislation for such cases.

Finally, section 3 stipulates that a residence permit shall be granted to the victims of violence if they participate in the criminal proceedings by testifying. Once this procedure has been concluded, the permit is only extended if humanitarian or personal reasons or reasons of public interest requiring their presence on federal territory can be demonstrated. As a result, many women and feminized people who are victims of violence end up illegalized because they prefer this to returning to their country of origin.

While some women and feminized people make the decision to leave their partners in order to escape the violent situation, those who have a “residence obligation” and flee to a district where they are not allowed to reside because of this obligation, need permission from the Federal Office or the Foreigners Office in order not to commit a misdemeanor. It is asserted that in cases of violence, such a violation is considered justifiable and a relocation application can be made depending on the status of the asylum process. However, the change of residence can lead to a situation of vulnerability, as social services are compromised when due to this change and the wait for their restitution can be long.

In the case of women and feminized people with a “residence restriction”, the latter can be rescinded if permission is granted by the Federal Office or the Foreigners Office, depending on the status of the asylum procedure. To do so, an application must be made within 6 weeks of fleeing the residence. However, this requires a large number of documents, including medical records of injuries, court-issued protection orders and confirmation of admission to a women’s shelter, all of which can be omitted only in exceptional cases. Nevertheless, women’s shelters, despite the crucial task they perform, are overcrowded and limited in resources. Another possibility would be demonstrating that she has supportive relatives in the new location or to file a protection order, but these are equally difficult to obtain due to the lack of response from the authorities in these cases.

Women and feminized people who were allocated to a particular place of residence during the first instance procedure until a decision by the Foreigners Office or because their deportation was suspended (‘Duldung’), are allocated to a particular place of residence. If they are in a situation of violence, it is possible for them to file a reallocation request in order to obtain a permit to move to a different place of residence.  While a fast-track processing can be requested in such cases, there is no provision that establishes this. However, the person in this situation must prove that she has a family to support her or that she has a place in a women’s shelter. For women and feminized people whose deportation has been suspended, the chances of relocation are much more remote, as their rights are considered to be reduced to a minimum. These hardships are in addition to those faced by all refugees and migrants housed in reception centers, since the latter have been criticized for their vagueness and inadequate implementation of the “Minimum Standards for the Protection of Refugees and Migrants in Refugee Accommodation Centres” .

Whose rights are we talking about when we talk about women’s rights on 8th of March?

Refugee and asylum-seeking women and feminized people are affected by the androcentric and racist bias that are not only present in migration and refugee law but permeate all the legal and political spheres of the State. Thus, the fact of residing in Germany does not necessarily mean that these women and feminized people see their rights guaranteed, neither as women nor as migrants or refugees. In addition to a gender-sensitive asylum processes, with appropriate counselling and sensitive personnel, it is essential to continue fighting to eliminate all gender, racial and class asymmetries in society. This implies demanding the full implementation of the Istanbul Convention in order to effectively contribute to the elimination of all forms of discrimination and to promote substantive equality between men, women and LGBTQ+ persons. And in the specific case of SGBV, funding for shelters, housing and counseling centers for those who suffer or have suffered SGBV, regardless of their “legal” status, is of paramount importance. The dire situation in which women’s shelters find themselves and the deficit of places show how in this regard, are not in line with the requirements of the Istanbul Convention. In this process, it is also crucial to acknowledge the plurality of the realities of the women, girls, lesbians, intersex, non-binary and transgender women, their own knowledge as well as their resistance and coping mechanisms.

The reservations in Article 59 of the Istanbul Convention and the institutional racism the violation of the principle of non-discrimination stated in Article 4 result in differentiated access to justice in the face of violence, making it clear that for the German state some women and feminized people are more worthy of protection than others. This situation is reflected in the reported (in)action of the police in the above-mentioned cases, and in their failure to recognize the sexist and racist backgrounds of the feminicides of migrant and refugee women and feminized people in Germany. It is telling that campaigns to fight violence against women such as the one launched by the Federal Ministry for Women, “Aber jetzt rede ich”, announce that their aim is “[t]o encourage even more women to seek help and take advantage of support services”. This campaign implies that the problem is the “silence” of the women and feminized people affected and not the lack of response from the state when they dare to denounce, nor in combating the rest of the inequalities that favor and support the most extreme forms of violence.

Against this scenario we must ask ourselves: How can we expect women and feminized people, especially refugee and racialized women and feminized people affected by SGBV to trust an inherently racist and patriarchal legal system? Which women’s rights are being celebrated on the 8th of March?  Which ones are being fought for? And for which women and feminized people are they guaranteed?

This blog post was also published in Spanish.


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