December 19, 2020
Germany was only able to put the Istanbul Convention which it had signed in 2011 into force at the earliest in February 2018, by making reservations on the implementation of the second and the third paragraphs of Article 59 of the convention. Article 59 under the Immigration and Asylum Section provides that victims of domestic violence whose residence status is dependent on a spouse or a partner whose residence is recognized by domestic law shall be granted a residence permit independent of the spouse in case of a breakdown of a marriage or a relationship. The first paragraph of Article 59 imposes obligations on the contracting states for granting an independent residence permit from the spouse regardless of the duration of the marriage or relationship; the second paragraph imposes obligations on the contracting states to stop the deportation procedures of the victims of violence in a way that allows them to apply for an independent residence permit, the third paragraph imposes obligations on the contracting states to grant the victim of violence a renewable residence permit if their legal process is ongoing or if he or she is staying in a women’s shelter and the fourth and the last paragraph imposes obligations on the contracting states to restore the permits of the victim if the victim is taken to another country as a result of forced marriage and loses the right of residence.
The German government justifies its reservations on the internal law regulation of the first paragraph of Article 59 being sufficient. However, our experience in the field and the feedback of women violence victims, migrant and refugee women’s associations, social service consultants and lawyers show that the Difficult Circumstances Commission established according to the domestic legal system does not work effectively. The report issued by the commission does not have any sanctions on the Immigration Office, and the documents requested by the commission members vary on the basis of states, cities and commissions. Women are reluctant to submit their rightful applications due to both the language barrier and the uncertainty, and they become victims for the second time. This victimization directly contradicts the principle of providing equality to everyone, regardless of language, religion, race, residence status, stated in the fourth article of the convention. In this context, this presentation illustrates the political work carried out by DaMigra (Dachverband der Migrantinnen e.V.), the umbrella organization of immigrant and refugee women’s associations in Germany, to remove the reservations placed on the Istanbul Convention and the right to be granted a residence permit independent of the spouse. Within this framework, it examines how immigrant and refugee women’s associations from different geographies of the world localize feminist struggle practices in Germany where their lives are centered.
DaMigra which was founded in 2014, today represents more than 70 member associations by expressing equality demands of migrant and refugee women and by conducting political work in this direction. It both empowers women for participation in social life in Germany with the grassroots work carried out for and with migrant and refugee women, and also conducts lobbying efforts to create political demands that contain permanent solutions to the current identified problems. Struggling against racist and sexist discrimination, DaMigra insists on the demand “Let Istanbul Convention be Implemented Unconditionally” while discussing the implementation of the Istanbul Convention in Germany on the axis of immigration and gender intersection.
When we look at the Istanbul Convention from the intersection of immigration and gender, we see that some articles particularly stand out. For example, Article 11, data collection and research. Migrant and refugee women are often included in short sections of research. However, within the framework of Article 11, we are talking about the need for the state to collect data directly on the needs and demands of immigrant and refugee women. Or article 19, the woman’s right to information in a language she can understand. This undoubtedly includes the woman’s right to testify in her first language. Article 23, shelters. Since 2015, the law on the place of residence (Wohnsitzauflage) has been in force in Germany. According to this law, refugees are registered in a certain city after their application is completed and they have to live in that city for three years. This law means restricting the freedom of movement of refugees. If they find a job in another city, they go to the immigration office and demand their residence to be changed by virtue of duty. This request can take weeks or even months to get an answer back. During this waiting period, they may miss job opportunities. Their inability to find a job causes them to live in need of state aid by not being able to acquire their economic freedom. This law makes the situation difficult for refugee women who are victims of violence as follows: If there is no availability in a women’s shelter in the city where they are registered, they cannot find an available place in another city and move there. Because they have no freedom of movement. Immigrant women who come to the country by family reunification and receive their residence through their husbands also have limited access to women’s shelters. Sometimes they are rejected because they cannot receive social assistance to cover their expenses in the shelter, or sometimes because of racist prejudices with judgmental assumptions that they may bring their family members along and that it would cause trouble. Or as there is no translator in the shelter, the woman gets stuck in the language barrier. On the other hand, finding a place in women’s shelters is still a problem in Germany. The condition of one family living space per 10,000 people in each region, stipulated in the explanatory report of the Istanbul Convention has not yet been met in Germany. The Ministry responsible for family, elderly, women and youth announced that it has allocated funds to establish new women’s shelters or expand the capacity of existing ones under the Istanbul Convention. However, simply increasing the capacity does not protect immigrant and refugee women unless these regulations are changed or the racist behavior of the staff is punished. Immigrant and refugee women and girls seeking help to escape violence are discriminated against because of their lack of citizenship rights. In other words, they are victimized for the second time by the German legal system.
Other articles of the Istanbul Convention that directly concern immigrant and refugee women are related to forced marriages, female genital mutilation-cutting and crimes committed in the name of so-called ‘honor’. Particularly prominent in these three items is the emotional pressure exerted on women and girls, that is, the psychological violence perpetrated by the perpetrator: The ‘honor of the family’ in forced marriages and crimes committed in the name of so-called ‘honor’ and the so-called ‘ladyhood’ pressure in female genital mutilation-cutting are examples of these. Although psychological violence is clearly defined as a crime in Article 33 of the Istanbul Convention, it is not yet under legal investigation in Germany. In other words, nobody can file a lawsuit due to psychological violence.
The seventh part of the convention on immigration and asylum includes the articles of the Istanbul Convention on the residence rights of immigrant and refugee women: Article 61-non-refoulement, Article 60-requests for asylum based on gender and Article 59-residence permit. It is important to examine Article 59 of the Istanbul Convention within the scope of the struggle for the right of residence independent of the spouse. The most important point of Article 59 is the reservations made by Germany in the second and third paragraphs of the article while enacting the Istanbul Convention. These reservations prevent women who are victims of domestic violence from being protected if they file a complaint. For example, preventing the deportation of a woman when applying for a residence permit independent of her spouse, as provided in Paragraph 2. Or, as stated in Paragraph 3, if the victim of violence is to be heard as a witness for the investigation, or if a woman is staying in a shelter, she cannot be deported. Germany cites the first paragraph of Article 59 which is implemented in accordance with the 31st paragraph of the foreigners law as a reason for the reservations it has made. According to this, immigrant women who come to the country by family reunification can apply for a residence permit independent of the spouse after the end of a three-year marriage period. If the woman is a victim of domestic violence, this period does not need to expire in order for her to apply for a spouse-independent residence permit. But of course, what is written in the law and what happens in the field does not coincide. For example, in order for a woman victim of violence to obtain an independent residence permit from her husband, she must first apply to the Difficult Circumstances Commission and should document the violence. According to the experiences conveyed by the immigrant women’s associations, the documents requested by the commission in the applications differ even within the same state. Most of the applications are denied. As such, women violence victims are obliged to wait for the expiry of the legal period rather than dealing with uncertainty. Knowing this, the perpetrator uses the spouse-independent right of residence as a means of violence. He threatens to divorce her and send her out of the country. Women often hesitate to complain because they are afraid of losing their children. Under these circumstances, immigrant and refugee women who are victims of domestic violence are again victimized by the German legal system for the second time.
So what does the practice in the field tell us? This is what DaMigra exactly describes in its GREVIO report. GREVIO — for those who do not know — is the expert group that controls the implementation of Istanbul Convention. GREVIO periodically sends questionnaires to countries and asks for information on states’ regulations in accordance with the Istanbul Convention. Non-governmental organizations also prepare shadow reports in parallel with state reports. GREVIO evaluates all these reports together with their visits to the countries, publishes country reports and makes suggestions for the improvement of the practices. In a way, it issues the state report of the Istanbul Convention. The DaMigra-GREVIO-Shadow Report focuses on three main sections: first, migration and asylum, second, women’s shelters under protection and support, and the last, investigation and prosecution. In the report, we also examined one case in depth to illustrate structural rights violations. Aytan’s case.
Aytan came to Germany by family reunification at the beginning of 2018. Shortly after, she was subjected to violence and she left home and took refuge with a family she had known from Azerbaijan. She had had a son from her first marriage, and the boy was going to a second school in Germany at that time. Thanks to her son’s teacher, she found a place in the women’s shelter and went to Siegen. Before her application for family reunification in Cologne was completed, her file was sent to the Immigration Office in Siegen. Meanwhile, Aytan filed a complaint on her husband. She occasionally found a job, found a house and applied for an independent residence permit. The Immigration Office rejected her family reunification application and canceled her working and residence permit, as Aytan was no longer living in Cologne with her husband in the same house. Aytan went to the Difficult Circumstances Commission but could not get a response. She appealed to the district Petition Committee. She didn’t get any response from there, either. Aytan was deported in November 2019.
We see that Aytan both tried to get away from violence as well as struggling to fill the gaps among the protection mechanisms of the state. For example, Aytan could not leave home and go directly to a shelter. She had to arrange her own escape. Since family reunification was not approved, the residence and working permit was canceled. The interesting thing here is that Aytan’s application was rejected, although she both found a job and a house and showed that her life center was Germany. On the other hand, the fact that economic independence, which is the most basic point of the right to live independently from a spouse, was not provided to Aytan by not granting her a working permit. In addition, when Aytan was deported, the lawsuit filed against her husband was dropped without any investigation on the grounds that there were no witnesses. Thus, the reservations made by Germany had protected the perpetrator.
Aytan is not the only case. Aytan is not the only woman who was added to the state statistics through deportation, but not by an incident of violence she was subjected to that was reported by immigrant women’s associations. We need a feminist struggle involving ALL WOMEN to protect immigrant and refugee women from the multiple discrimination they face in terms of class and gender.
The first draft of this article, with the title “Immigrant Women’s Struggle for Independent Residency Rights in Germany”, was presented on December 19, 2020, at the “Being an Immigrant Woman Within the Local Movement” conference organized by Havle Women’s Association. You can click here to access other texts of our Feminism Localization conference.