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COMBATTING OR ENABLING DOMESTIC VIOLENCE? EVALUATING THE RESIDENCE RIGHTS OF MIGRANT VICTIMS OF DOMESTIC VIOLENCE IN EUROPE

Published online by Cambridge University Press:  20 August 2020

Catherine Briddick Open the ORCID record for Catherine Briddick [Opens in a new window]
Catherine Briddick*
Affiliation:
Martin James Departmental Lecturer in Gender and Forced Migration, Refugee Studies Centre, University of Oxford, [email protected].
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Abstract

The treatment of third-country nationals (TCNs) under EU law falls far short of the EU's commitments to eliminate gender inequality and to ‘combat all kinds of domestic violence’. Not only does Article 13(2)(c) of the EU Citizens’ Directive, as interpreted by the CJEU in Secretary of State for the Home Department v NA, fail to ‘safeguard’ the rights of TCNs, it may also enable domestic violence. When presented with an opportunity to remedy its disadvantageous treatment of TCNs by fully ratifying the Council of Europe Convention on Preventing and Combatting Violence Against Women and Domestic Violence (the Istanbul Convention), the Council of the EU chose instead to pursue a selective and partial ratification which leaves TCN victims without recourse to the very provisions designed to assist them. The European Parliament stated that it ‘regrets’ this approach, recommending instead ‘a broad EU accession … without any limitations’. This article's analysis of the EU Citizens’ Directive and Istanbul Convention supports this recommendation.

Keywords

public international lawdomestic violenceviolence against womendiscriminationthird-country nationalTCNcitizenshipCitizens’ DirectiveIstanbul Conventiondomestic violence rulemigration status
Type
Shorter Articles
Information
International & Comparative Law Quarterly , Volume 69 , Issue 4 , October 2020 , pp. 1013 - 1034
Copyright
Copyright © The Author(s) 2020. Published by Cambridge University Press for the British Institute of International and Comparative Law

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Footnotes

I would like to thank Cathryn Costello and Henry Radice for their comments on various iterations of this article. I would also like to thank the anonymous reviewers and the editorial board for all their constructive suggestions.

References

1 Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence (adopted 7 April 2011, entry into force 1 August 2014) CETS 210 (Istanbul Convention), art 3(b).

2 European Union Agency for Fundamental Rights, Violence Against Women: An EU-Wide Survey: Main Results Report (Publications Office of the European Union 2014) 21.

3 Krug, EG et al. , World Report on Violence and Health (World Health Organisation, Geneva 2002) Ch 4CrossRefGoogle ScholarPubMed; Tanha, M et al. , ‘Sex Differences in Intimate Partner Violence and the Use of Coercive Control as a Motivational Factor for Intimate Partner Violence’ (2010) 25(10) Journal of Interpersonal Violence 1836CrossRefGoogle ScholarPubMed; European Union Agency for Fundamental Rights (n 2); and Office for National Statistics, Domestic Abuse in England and Wales: Year Ending March 2018 (Statistical bulletin, 22 November 2018) 8.

4 Opuz v Turkey Appl No 33401/02, Judgement of 9 June 2009, paras 184–191.

5 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR).

6 Charter of Fundamental Rights of the European Union [2007] OJ C 303/01 (CFREU) arts 21, 7, 4, 2 and 1. In Case C-400/10 PPU J McB v LE ECLI:EU:C:2010:582 [2010] ECR I-08965 the CJEU ruled that where CFREU rights paralleled ECHR rights, the CJEU should follow the jurisprudence of the European Court of Human Rights (ECtHR), noting at para 53 that the meaning and scope of CFREU-protected rights were, at minimum, the same as those protected by the ECHR.

7 European Union Agency for Fundamental Rights (n 2) Ch 3.6.

8 Anitha, S, ‘Legislating Gender Inequalities’ (2011) 17(10) Violence Against Women 1260CrossRefGoogle ScholarPubMed.

9 In April 2017 Immigration, Refugees and Citizens Canada abolished a requirement that had made migrant spouses dependent for their status on their Canadian spouse for two years for such reasons, Immigration Refugees and Citizenship Canada (IRCC), 2017 Annual Report to Parliament on Immigration (1 November 2017) section 4.

10 Like, for example, the US's U Visa, for an introduction to and evaluation of which see Nanasi, N, ‘The U Visa's Failed Promise for Survivors of Domestic Violence’ (2018) 29(2) Yale Journal of Law & Feminism 271Google Scholar.

11 European Parliament and Council Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC OJ L 158/77.

12 Istanbul Convention, art 59 of which takes a fourfold approach to victims’ residence status.

13 Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C 326/47 (TFEU) art 8. See also arts 10 and 19.

14 TFEU, Declaration 19 on art 8.

15 European Commission, Proposal for a European Parliament and Council Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member State (Brussels, 2352001 COM(2001) 257 final, 2001) 14–15. See also EU Citizens’ Directive, recital 15.

16 Istanbul Convention, art 1.

17 Istanbul Convention, art 75 and TFEU, art 216.

18 The framework that applies to, for example, the Australian wife (a TCN) of a Spanish citizen (an EU Citizen) who is living and working in France (an EU Member State other than his EU ‘home State’). The framework that applies to the Australian wife of a Spanish citizen who is living and working in Spain is the latter's own immigration law.

19 Case C 115/15 Secretary of State for the Home Department v NA ECLI:EU:C:2016:487 [2016].

20 Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979, in force 3 September 1981) 1249 UNTS 13 (CEDAW); CEDAW General Recommendation No 35 on Gender-Based Violence Against Women, Updating General Recommendation No 19 CEDAW/C/GC/35 (26 July 2017).

21 Briddick, C ‘Precarious Workers and Probationary Wives: How Immigration Law Discriminates Against Women’ (2020) 29(2) Social & Legal Studies 201CrossRefGoogle Scholar.

22 Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C 326/47 (TFEU), arts 20 and 21 establish EU citizenship and the rights that pertain to it.

23 EU Citizens’ Directive, art 6.

24 ibid, art 7. These conditions include not becoming a burden on the social assistance programmes of a particular Member State and having comprehensive sickness insurance.

25 ibid, art 7. Some statuses may be ‘retained’ even though the person concerned no longer fulfils the requisite criteria.

26 ibid, art 16.

27 Case C-127/08 Metock ECLI:EU:C:2008:449 [2008] ECR I-06241, para 62. For a discussion of this case see Costello, C, ‘Metock: Free Movement and ‘‘Normal Family Life’’ in the Union’ (2009) 46(2) CMLRev 587Google Scholar.

28 Home Office, EEA(PR) Application for a Document Certifying Permanent Residence or Permanent Residence Card under the EEA Regulations (UK Visas & Immigration, 18 March 2016).

29 Case C-267/83 Diatta v Land Berlin ECLI:EU:C:1985:67 [1985] ECR 00567.

30 See O'Brien, C, ‘The Pillory, the Precipice and the Slippery Slope: The Profound Effects of the UK's Legal Reform Programme Targeting EU Migrants’ (2015) 37(1) Journal of Social Welfare and Family Law 111CrossRefGoogle Scholar for a discussion of some of the restrictions/exclusions that EU Citizens and their family members in the UK have been subject to. The exclusion of one EU Citizen, Adult D, from the ‘refuge, support and safety which would be provided to a UK national in similar circumstances’ was specifically identified by those examining her death as contributing to the circumstances in which she was murdered by her former partner, Sheffield Safer and Sustainable Communities Partnership, Learning from Domestic Homicide Review (DHR): Adult D (January 2014) 1 and 3.

31 Per the references at (n 15).

32 EU Citizen's Directive, art 13 (edited, emphasis added).

33 Drawing on Strumia, F, ‘Divorce Immediately, or Leave. Rights of Third Country Nationals and Family Protection in the Context of EU Citizens’ Free Movement: Kuldip Singh and Others’ (2016) 53(5) CMLRev 1373, 1384Google Scholar.

34 Secretary of State for the Home Department v NA (n 19).

35 See Briddick, C ‘Case Comment: Secretary of State for the Home Department v NA’ (2016) 30(4) Journal of Immigration Asylum and Nationality Law 367Google Scholar for a complete discussion of the case, including the rights under EU law that NA had as the primary carer of two EU citizen children.

36 The full facts of which are set out in Case C-115/15 Secretary of State for the Home Department v NA ECLI:EU:C:2016:259 paras 11–23 and B Asanovic, Note on SSHD v NA Pakistan, C-115/15, AIRE Centre Intervening (Document number 160732348, Resources for Members, Immigration Law Practitioners' Assocation, 28 July 2016).

37 NA v Secretary of State for the Home Department [2014] EWCA Civ 995, paras 21–22.

38 Secretary of State for the Home Department v NA (n 19) para 51. Thankfully NA did not face removal from the UK following this decision per Ahmed (Amos; Zambrano; reg 15A(3)(c) 2006 EEA Regs) [2013] UKUT 00089 (IAC).

39 Secretary of State for the Home Department v NA (n 19) para 37.

40 Case C-218/14 Kuldip Singh, Denzel Njume, Khaled Aly v Minister for Justice and Equality ECLI:EU:C:2015:476 [2015].

41 Drawing once again on Strumia (n 33).

42 Secretary of State for the Home Department v NA (n 19) para 41.

43 ibid, para 42.

44 Secretary of State for the Home Department v NA (n 36) para 30.

45 ibid, para 70.

46 ibid, para 72.

47 ibid, paras 73 and 80.

48 ibid, para 76.

49 Secretary of State for the Home Department v NA (n 19) paras 43–44.

50 Secretary of State for the Home Department v NA (n 36) para 62.

51 Secretary of State for the Home Department v NA (n 19) para 47.

52 ibid, paras 48–49.

53 See Briddick (n 35) for a discussion of these points.

54 Divorce (and divorce at a particular time) is a ‘gateway’ requirement to the rule; this may be problematic in jurisdictions where the ability to divorce is restricted.

55 EU Citizens’ Directive, art 13(2) in conjunction with art 18, the latter enabling those who have retained rights under the former to acquire permanent residence after five consecutive years’ lawful residence.

56 As appeared to have been in the case for HC in Sanneh & Ors v Secretary of State for Work and Pensions [2015] EWCA Civ 49.

57 Weiss, A, ‘Transnational Families in Crisis: An Analysis of the Domestic Violence Rule in E.U. Free Movement Law’ (2009) 30(3) MichJIntlL 841, 853Google Scholar.

58 ibid.

59 EU Citizens’ Directive, art 13 states that the rule is for the benefit of those whose marriage or registered partnership is terminated.

60 Ahmed (Amos; Zambrano; reg 15A(3)(c) 2006 EEA Regs) (n 38) para 17 which referred to both the relevant provisions of the CFREU and the ECtHR's domestic violence jurisprudence. On the relationship between the CFREU and ECHR see PPU J McB v LE [2010] (n 6).

61 Istanbul Convention, art 1.

62 ibid, Ch II.

63 ibid, Ch III.

64 ibid, Ch IV, including general services usually provided by the State (for example, health care and financial assistance, art 20) as well as specialist support services for women and children (arts 22–26).

65 ibid, Ch V, conduct criminalised includes stalking (art 34), physical and sexual violence (arts 35–36), forced marriage (art 37), FGM (art 38) and forced abortion/sterilisation (art 39).

66 ibid, Ch VI.

67 ibid.

68 ibid, Ch IX.

69 ibid, art 2(1)–(2) and Council of Europe, Explanatory Report to the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (CETS No. 210) (2011) para 45.

70 On the scope of the Convention, compare art 2(1) ‘This Convention shall apply to all forms of violence against women, including domestic violence…’ with art 2(2) ‘Parties are encouraged to apply this Convention to all victims of domestic violence. Parties shall pay particular attention to women victims…’ (emphasis added). If the term ‘and’ in art 3(e) was interpreted cumulatively, the protections of the Convention would not be available to women subjected to, for example, stalking, sexual harassment and sexual violence where the perpetrator was someone outside of a women's household or family. That the ‘and’ is used to denote two, potentially distinct beneficiary groups, ‘victims of violence against women’ and ‘victims of domestic violence’, the former being only female with the latter potentially including men/boys, is also confirmed by the reference to ‘women victims’ in cases where a particular right/protection is available only to the former group eg art 18(3) which refers to the ‘empowerment and economic independence of women victims of violence’. See further Römkens, RG, ‘Reflections on Domestic Violence as Gender-Based Violence in European Legal Developments’ in Mohamad, M and Wieringa, SE (eds), Family Ambiguity and Domestic Violence in Asia (Sussex Academic Press 2013)Google Scholar.

71 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (VCLT), art 31.

72 Stoyanova, V, ‘A Stark Choice: Domestic Violence or Deportation? The Immigration Status of Victims of Domestic Violence under the Istanbul Convention’ (2018) 20 European Journal of Migration and Law 53, 62CrossRefGoogle Scholar.

73 ibid.

74 Per Case C-378/12 Nnamdi Onuekwere v Secretary of State for the Home Department ECLI:EU:C:2014:13 [2014], where the ECJ ruled that time spent in prison was not time legally residing in another EU Member State.

75 Emphasis added.

76 It will be recalled that NA's husband sought to have her residence permit cancelled. For further information on the facts of the case consult the references at (n 36). For other examples of such conduct from the UK see Balakoohi, R (on the application of) v Secretary of State for the Home Department [2012] EWHC 1439 (Admin) and SSHD v SP [2016] UKAITUR IA013472015. For an introduction to the empirical research see S Anitha, ‘Immigration Status and Domestic Violence’ (Open Democracy, 14 September 2015) <https://www.opendemocracy.net/en/beyond-trafficking-and-slavery/immigration-status-and-domestic-violence/> and Anitha (n 8).

77 Council of Europe (n 69) para 304.

78 This article considers NA's potential eligibility under art 59(1), but women in her situation may also be able to rely on art 59(3) on the grounds that their stay is ‘necessary’ owing to their ‘personal situation.’

79 Istanbul Convention, art 4(3) in conjunction with arts 20, 22 and 57.

80 As discussed by O'Brien (n 30).

81 Asanovic (n 36).

82 Istanbul Convention, art 75 and TFEU, art 216.

83 TFEU, art 216(2) and art 218, see further the discussion at (n 95), (n 97) and European Commission, (A possible) EU Accession to the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) (October 2015).

84 See (n 13) and the accompanying text.

85 European Commission, Proposal for a Council Decision on the Conclusion, by the European Union, of the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence (Brussels, 432016 COM(2016) 109 final 2016/0062 (NLE) 2016) 9.

86 ibid 9–10.

87 ibid.

88 ibid 11–13.

89 Council Decision 2017/865 of 11 May 2017 on the signing, on behalf of the European Union, of the Council of Europe Convention on preventing and combating violence against women and domestic violence with regard to matters related to judicial cooperation in criminal matters OJ L 131/11 (emphasis added).

90 Council Decision 2017/866 of 11 May 2017 on the signing, on behalf of the European Union, of the Council of Europe Convention on preventing and combating violence against women and domestic violence with regard to asylum and non-refoulement OJ L 131/13 (emphasis added).

91 At the time of writing Bulgaria, the Czech Republic, Hungary, Latvia, Lithuania and Slovakia have all signed, but not ratified the Convention. A full list of signatures and ratifications is available on the Council of Europe's Treaty Office website. This lack of ‘common accord’ between Member States may have implications for the EU's proposed accession.

92 Council Decision of 26 November 2009 concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities (2010/48/EC) OJ L 23/35.

93 European Parliament resolution of 12 September 2017 on the proposal for a Council decision on the conclusion, by the European Union, of the Council of Europe Convention on preventing and combating violence against women and domestic violence (COM(2016)0109 – 2016/0062(NLE)) (2017) para 2.

94 European Parliament resolution of 28 November 2019 on the EU's accession to the Istanbul Convention and other measures to combat gender-based violence (2019/2855(RSP)) (2019) para 2 echoing para 9(d) of its resolution of 12 September 2017. Parliament also called on the States listed in (n 91) to ratify the Convention ‘without delay’ on the basis that EU accession ‘does not exempt Member States from national ratification’.

95 European Parliament resolution of 4 April 2019 seeking an opinion from the Court of Justice on the compatibility with the Treaties of the proposals for the accession by the European Union to the Council of Europe Convention on preventing and combating violence against women and domestic violence and on the procedure for that accession (2019/2678(RSP)) (4 April 2019) para 2 of which states: ‘… given the above questions as regards the choice of legal basis and the split into two decisions, there is also legal uncertainty as regards the compatibility with the Treaties of the practice of a ‘‘common accord’’ by the Council in its decision-making, which is applied in addition to or alternatively to the relevant decision-making procedure in the Treaties, and, in this context, as regards the application of the principle of sincere cooperation in the light of the expressed objective of the Union to conclude the Istanbul Convention’.

96 CC-377/12 Commission v Council ECLI:EU:C:2014:1903 [2014] OJ C 282/3. See also De Vido, S, ‘The Ratification of the Council of Europe Istanbul Convention by the EU: A Step Forward in the Protection of Women from Violence in the European Legal System’ 9(2) European Journal of Legal Studies 69Google Scholar.

97 In its Request for an opinion submitted by the European Parliament pursuant to Article 218(11) TFEU (Opinion 1/19) Parliament adopted the former approach, its first question was: ‘Do Articles 82(2) and 84 TFEU constitute appropriate legal bases for the act of the Council relating to the conclusion, in the name of the European Union, of the Istanbul Convention, or must that act be based on Articles 78(2), 82(2) and 83(1) TFEU, and is it necessary or possible to separate the decisions concerning the signature and the conclusion of the convention as a consequence of that choice of legal basis?’. The second question asked concerns whether or not the conclusion by the EU of the Istanbul Convention, in accordance with art 218(6) TFEU is correct, given the absence of agreement between Member States concerning their consent to be bound by it.

98 Preventing and Combating Violence Against Women and Domestic Violence (Ratification of Convention) Act 2017.

99 Home Office, Ratification of the Council of Europe Convention on Combating Violence Against Women and Domestic Violence (Istanbul Convention) – Report on Progress (Home Office November 2017) 16 and 40.

100 ibid 25. See further V Atkins (Parliamentary Under-Secretary of State for Safeguarding and Vulnerability) Istanbul Convention Ratification: 2019 Report on Progress: Written Statement – HCWS58 (31 October 2019) which records art 4(3) and 59 as ‘under review’.

101 For a different perspective see Stoyanova, V, ‘On the Bride's Side? Victims of Domestic Violence and their Residence Rights under EU and Council of Europe Law’ (2019) 37(4) NQHR 311Google Scholar.

102 A v Secretary of State for the Home Department [2016] CSIH 38.

103 See (n 30) and the accompanying text.

104 Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO), GREVIO Baseline Evaluation Report Denmark (24 November 2017) 14; Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO), GREVIO Baseline Evaluation Report Austria (27 September 2017) 31–3.

105 Weiler, JHH, ‘Thou Shalt Not Oppress a Stranger: On the Judicial Protection of the Human Rights of Non-EC Nationals - A Critique’ (1992) 3(1) EJIL 65CrossRefGoogle Scholar.

106 Metock (n 27) para 62.

107 Weiler (n 105) 90–1.

108 Drawing on Weiler (n 105) 90.

109 Oosterom-Staples, H, ‘Residence Rights for Caring Parents Who Are Also Victims of Domestic Violence’ (2017) 19(4) European Journal of Migration and Law 396, 409CrossRefGoogle Scholar similarly argues that the CJEU's judgment ‘serves the perpetrator’ of violence.

110 S Peers, ‘Domestic Violence and Free Movement of EU Citizens: A Shameful CJEU Ruling ’ (EU Law Analysis 25 July 2016) <http://eulawanalysis.blogspot.co.uk/2016/07/domestic-violence-and-free-movement-of.html>.