• States must also address forced marriages that involve immigrant women and girls. It is essential that laws distinguish between marriages of convenience and forced marriages, the former involving parties who presumably consent to the marriage to overcome immigration barriers and the latter involving a victim who does not consent. Equating the two situations risks failing to identify, protect and assist victims of forced and child marriage. At the same time, states must balance the right to family reunification with the interests of preventing forced marriages. (See Migrant Workers Convention and ICESCR. Council Directive 2003/86/EC on family reunification provides guidance on this aspect and recommends that Member States set a minimum age for the sponsor and spouse, no greater than 21 years, before the spouse can join the sponsor (Art. 4(5)).
Example: The Belgian Marriages of Convenience Act (1999) requires registrars to issue a marriage declaration and notify the prosecutor’s office where there is doubt regarding the parties’ consent and intent to marry. The prosecution must show collective evidence that meets the requirements for legal suspicion, which may include admissions and witnesses. Evidence of a sexual relationship is a factor but not a definitive element. It is important that any similar legislation that seeks to prohibit marriages of convenience not penalize persons who may be victims of forced marriage. Any such legislation should provide for support structures where victims of forced and child marriage may seek assistance. Also, laws that impose cohabitation requirements should take into account situations of domestic violence that prevent spouses from living in the same residence. For example, Article 108 of the French Civil Code does not require spouses to live in the same home to meet the cohabitation requirement. In addition to addressing marriages of convenience, Belgium has criminalized the offence of forced marriage, by a prison sentence of one month to two years or maximum fines of EUR 500 to EUR 2,500. Attempted forced marriage is punishable by 15 days to one year’s imprisonment or a fine of EUR 250 to EUR 1,250.
• Drafters should review and amend immigration and public benefits laws to protect victims of forced and child marriage. Laws should provide that survivors of violence against women are not deported or subject to other punitive immigration consequences when reporting violence to the police. Also, laws should make immigrant survivors of violence eligible for and allow them to confidentially apply for legal immigration status independent of the perpetrator. See: UN Handbook, p. 37. Some immigration laws grant visas to victims as part of an objective to investigate and prosecute crimes. These laws should prioritize victims’ need for protection and services, rather than their value as a witness in criminal prosecutions. Such visas should give victims access to public benefits, grant them work permission, and facilitate family reunification for visa applicants whose applications may be delayed by ongoing investigations and prosecutions.
• Drafters should also review laws that restrict or bar immigrant women, particularly victims of domestic abuse, from accessing to public funds or assistance. Drafters should review financial assistance regulations, such as those requiring agencies to report immigration status that may have a chilling effect on women and girls in forced marriages from coming forward to seek help. Drafters should remove funding restrictions on legal aid organizations that prevent them from assisting undocumented immigrant victims of forced marriage, consider expanding public benefits to victims of forced marriage, and clearly delineate which public benefits an immigrant may receive without fear of negative immigration consequences. Victims of forced marriage may also require medical care, which would allow for identification of the problem and documentation and treatment of any injuries. Drafters should amend or adopt laws that allow immigrant victims of forced marriage to receive general medical assistance. (See: The Government Response to Domestic Violence Against Refugee and Immigrant Women in the Minneapolis/St. Paul Metropolitan Area: A Human Rights Report (2004); Anitha Sundari, Neither Safety Nor Justice: The UK government response to domestic violence against immigrant women, 30 Journal of Social Welfare & Family Law 189 (2008)).
CASE STUDY: Battered immigrant women and children are eligible for certain public benefits in the U.S. Undocumented immigrants may also be eligible to receive assistance if they have submitted an application to immigration and can demonstrate a “substantial connection” between the violence and their need for public assistance. Immigrant women and children may be eligible to receive public benefits if they have been battered or subjected to extreme cruelty by a U.S. citizen or lawful permanent resident spouse or parent, or their children have been battered or subjected to extreme cruelty by a U.S. citizen or lawful permanent resident parent. In both cases, the applicant must have a Violence against Women Act (VAWA) case or family-based petitions pending or approved before the U.S. Citizenship and Immigration Services. A VAWA case may render a victim of violence eligible for immigration status. (See NOW Legal Defense and Education Fund, Public Benefits access to Battered Immigrant Women and Children. See: Domestic Violence)
Addressing Rights of Immigrant Victims of Forced Marriages
• Laws should provide for the production of outreach materials explaining eligibility, laws, and services in multiple languages and formats as part of outreach to immigrant communities. For example, the UK Forced Marriage Unit has developed a number of materials for public education, including a leaflet and film on forced marriage, posters with contact information for the Forced Marriage Unit, a leaflet on forced marriage orders for protection a survivor’s handbook, and leaflets and posters targeting youth and educators.See also below the section on public awareness for more sample materials.
• In addition to protecting victims of forced marriage from negative immigration consequences, drafters should evaluate which law to apply regarding immigrant women and girls who are in forced marriages. Drafters face three possible choice-of-law options: applying the laws of the country-of-residence, applying the laws of the country of one party’s nationality (often where the forced marriage took place), or allowing the party to choose between the laws of her nationality or the country-of-residence. Depending on the context, giving preference to the laws of the country-of-residence may better protect women’s human rights, since countries where the forced marriage occurred may have laws that permitted the practice in the first place and thus discriminate against women. Drafters may wish to follow the Council of Europe’s recommendations giving priority to laws in the country of residence so as to prevent discrimination against women based on their status (p. 58).
Watch a video of Heather Heiman, attorney at the Tahirih Justice Center, on the response to immigrant victims of forced marriage, from the Second Annual Conference on Honor Crimes and Forced Marriage (2012).
(See: Section on Rights of Victims)
Example: Estonia’s Civil Code (1996) draws upon both the laws of the country-of-residence and the country where the marriage took place. Section 143(1) states that the requirements for marriage are to be determined by the laws of the future spouse’s country-of-residence. Section 143(2) applies the laws of the country where the marriage took place to the marriage contract. Estonia recognizes any marriage entered into in another country or at a foreign representative institution providing it complies with Sections 143(1) and (2) or with the laws of the spouse’s country of nationality.
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