Women have dominated the news in the last few weeks, unfortunately for all the wrong reasons. From the Harvey Weinstein scandal to Dustin Hoffman and the shock resignation of Defence Secretary, Michael Fallon, the sexual abuse and harassment of women has once again been brought to the forefront of our consciences. Undoubtedly, as the weeks go on, and more women gain the courage to come forward, the inappropriate behaviour of many more high-profile executives and politicians on both sides of the Atlantic will be exposed.
But there is another group of women who will never get the chance to tell their story. Female migrants. Most have endured years of abuse, forced prostitution and rape in their home country. Many risk it all, fleeing into the grasp of unscrupulous human traffickers, who abuse them even further. And when they finally reach the UK, hoping to gain safety and the prospect of a normal life, many are treated as criminals, locked in detention centres, frightened, bereft of hope and often suicidal.
Why do we criminalise migrant woman? Following our Legal 500 recommendation for Human Rights law, we believe this issue needs to be talked about. Although migrant women do not have fame, fortune or connections, their plight and courage are just as worthy of being heard as any actress or political journalist.
Yarl’s Wood still locking up vulnerable women
On 1st November 2017, The Guardian reported that several female victims of sexual violence have been detained in Yarl’s Wood immigration detention centre. This is in breach of the Adults at Risk policy, released in August 2016. The guidance specifies the matters to be considered in accordance with Section 59 of the immigration Act 2016 when determining the detention of vulnerable persons.
The main principles underlining this guidance are:
- to ensure fewer vulnerable migrants were detained, and if it is necessary to detain then, their detention should be for the shortest period of time possible
- if a person is deemed to be ‘at risk’ they should not be detained
- people can be detained if there is a realistic possibility of removal within a reasonable timeframe
The guidance describes a person being ‘at risk’ if:
- “they declare that they are suffering from a condition, or have experienced a traumatic event (such as trafficking, torture or sexual violence), that would be likely to render them particularly vulnerable to harm if they are placed in detention or remain in detention
- those considering or reviewing detention are aware of medical or other professional evidence, or observational evidence, which indicates that an individual is suffering from a condition, or has experienced a traumatic event (such as trafficking, torture or sexual violence), that would be likely to render them particularly vulnerable to harm if they are placed in detention or remain in detention – whether or not the individual has highlighted this themselves”.
The Guardian’s article was based on a report by Women For Refugee Women who interviewed 26 female migrants, all of whom had sought Asylum and been detained at Yarl’s Wood after the new policy came into force. The report found:
- 22 were victims of sexual or gender-based violence, including involuntary marriage, female genital mutilation and forced prostitution
- 23 had been detained in Yarl’s Wood for over a month
- all the women suffered from depression caused by being in detention
- almost half had contemplated suicide and two women had attempted to kill themselves
Detention is not used in all countries, and those that refrain from locking up vulnerable migrant women still operate a robust immigration system. In Sweden for example, there is capacity to detain only 225, as opposed to the UK’s capacity of 3,000. Asylum seekers are supported through the process and are given the resources to actively participate in their case. Interestingly, Sweden is one of the very few countries to have completely reversed course on detention outsourcing after private contractors caused widespread criticism. This came about following accusations of Human Rightsabuses, hunger strikes, and suicide attempts. In addition, during the 1990s, it became increasingly recognised that migrants were not criminals and should not be treated as such.
The decision in R v Assia B
Under s.25(1) of the Identity Cards Act 2006 (2006 Act) it is an offence for a person to be in possession of an identity card relating to someone else, with the intention of using it to establish his or her identity as that person's identity. However, it is understood that those fleeing persecution often have no choice but to falsify documents in order to escape. Therefore, under s.31 of the immigration and Asylum Act 1999 (which gives effect to Article 31(1) of the 1951 Convention and Protocol Relating to the Status of Refugees), refugees charged under s.25 of the 2006 Act have a defence if they came to the UK directly from a country where his life or freedom was threatened and inter alia made a claim for Asylum as soon as they could.
In R v Assia B, the defendant was charged with three offences, one of which, being in possession of an identity document with an improper intention, she pleaded guilty to. The background to the defendant being in possession of such as document was thus: while in the UK on a Tier 4 student visa, she was raped. Terrified of returning to Algeria, because of the stigma attached to rape victims, she used a Portuguese passport to obtain employment in Britain. She was arrested and jailed for a month before being released on bail. She had never committed an offence previously, and there was nothing in her attitude or lifestyle to indicate she would commit any further offences. She simply acted out of pure survival instinct.
By the time her case reached the Crown Court in Autumn 2016, the defendant had married a naturalised British citizen, and she was pregnant, due to give birth that October. The court was informed she was in poor health, suffering asthma and a pulmonary embolism. However, the Recorder refused to adjourn the hearing for a pre-sentence report and sent the defendant to prison for two weeks until the Court of Appeal heard the case.
The Court of Appeal received medical reports showing the defendant’s health problems continued in prison and she was suffering from extreme stress. In light of this, the defendant’s pregnancy, and the fact the offence was clearly an isolated incident, the court quashed the sentence of immediate imprisonment and instead handed down a two-year suspended sentence.
Rona Epstein, in her article, Seeking Asylum is not a crime: the criminalisation of migrant women(Cov. L.J. 2017, 22(1), 86-91), states that this case illustrates “how harshly our courts may deal with vulnerable women. Despite Assia B. being pregnant, having serious health problems, presenting no danger to society, the Recorder did not ask for a pre-sentence report and proceeded to impose a term of immediate imprisonment. We would question why the sentence of imprisonment, if deemed necessary and proportionate, was not suspended. Here was a young, vulnerable, ill and pregnant woman, the victim of a violent crime: was that not the sort of case in which sentence could and should be suspended?”
In 2012, Dr Liz Hales and Professor Loraine Gelsthorpe published an extensive paper entitled: The Criminalisation of Migrant Woman (ISBN:9780901382320). It concluded that the common experience of all the women interviewed was one of ‘disempowerment’.
“The women’s experiences led to them to report that they felt socially isolated, vulnerable, traumatised, subject to flashbacks, ashamed to tell others what had happened and finding difficulty in knowing whom to trust. They indicated that all of this was exacerbated by the experience of imprisonment and uncertainty about the future and it is not insignificant that being handed over to the police or immigration was a common threat used by those who had held them.”
Is this how a first-world country, quick to claim that it ‘empowers’ women, should treat the most vulnerable females who manage, through sheer grit, courage, and determination, to reach its shores?
We need to listen to all female victims of abuse and injustice, from Hollywood stars through to penniless migrants. Because each one of these women has suffered abuse and overcome it. And they all deserve a voice and an equal chance before the law.
By making an appointment with one of our Immigration Solicitors, you can be assured of receiving some of the best legal advice available in the UK today.
If you wish to discuss any of the points raised in this blog, please phone our London office on 0207 936 9960.