Undocumented victims of crime: no recourse to protection and justice

By Kadri Soova,
Advocacy Officer,
PICUM, Brussels.

It is difficult to imagine that in Europe today exists a group of persons who are unable to call the police to seek protection and assistance in situations where their physical integrity and safety is under threat. It is hard to believe that there are victims of rape and sexual assault, torture, domestic violence, physical assault and injury, child abuse and exploitation who are forced to suffer in silence. Unfortunately, this is the painful reality for an estimated 3.8 million persons across Europe, whose irregular migration status leaves them disproportionately vulnerable to abuse and assaults and with no recourse to seek assistance and justice.

EU victim’s rights directive turns a blind eye

The European Union is making much needed legislative efforts towards a pan-European protection system for victims of crime. The proposed directive, currently discussed in the European Parliament, is improving many areas of victim’s rights such as delinking support and practical assistance from the decision to report a crime, prevention of secondary and repeated victimisation and individual assessment mechanisms for vulnerable victim identification. However, these advances continue to turn a blind eye to the urgent need to address the specific vulnerabilities of undocumented migrant victims.

The consequences of irregular migration status and visa-dependency

It is not only the migants in an irregular situation- those who not hold a valid residence permit or visa authorising their stay in the country but also those whose residence permit is dependent on a third person- employer, spouse or another family member, who are left defenseless, unprotected and without the ability to seek justice.

Undocumented migrants who have become victims of crime are not able to access justice mechanisms because of possible ramifications on grounds of their migration status and consequently remain disproportionately vulnerable to physical and sexual abuse, exploitation, so-called “honour” killings, and trafficking for forced labour or sex.  Despite their increased exposure to ill-treatment, migrants without a valid residence permit or visa risk arrest and deportation if they contact the police.

Lack of independent migration status is a very common challenge for female migrants in particular, who risk losing their status when reporting a crime committed by an employer, spouse, or another family member as their residence permit or visa is often dependent on /tied to  this relationship.This dependency factor puts migrant women in an especially vulnerable position, creating a power imbalance which very often amalgamates into violence. What should be done?

In some EU Member States, support structures, such as women’s shelters, may deny access to those with an irregular migration status and exclude a particularly vulnerable group of women from essential protection and support. It is important to guarantee that funding for generalised or specific support services operated by NGOs, state or local authorities, does not specifically exclude certain groups of victims such as persons in an irregular migration situation.

Prevention, protection, investigation and sanctioning of crime should take precedence over any proceedings concerning the migration status of the victim. Migrants with an insecure status (both irregular migrants and with dependent visas) are not only more likely to become victims of crime but they are, due to their status, highly vulnerable to further victimisation and intimidation. Safeguards, such as giving a temporary residence permit and closing of a deportation file, will prevent irregular migrants from becoming a “zero risk victim” and help combat impunity. The right to access to justice and to report a cime without fear of being arrested or deported must be guaranteed by law to all persons.

Free legal aid and access to compensation funds are further areas of concern in relation to undocumented migrants. State financed legal aid is in most EU countries linked to residence status and migrants without a valid permit are automatically excluded from the scope of such programmes. Public funds allocated for the compensation of victims often exclude those with an irregular residence status leaving the victims and their families without the appropriate support provided for other victims in the same situation. Free legal aid and access to compensation funds should be made available to all victims, including those in an irregular migration status.

Bitter reality

Until we see concrete legislative commitments to change this situation of impunity, we will have to pay witness to devastating testimonies such as the one of Lisa (33) who lives in the UK with her daughter Mary (names are changed): “I’ve been in the UK for seven years now, been married to a British citizen for nine years, met him about twelve years ago. He hasn’t made me legal […]. By the time I tried to send the right application form I was already overstayed, and my husband didn’t do anything to help me – actually, it helped him you know– because mentally he likes to control you.” She continues: “He hit and, really, everything, from pushing against the wall, putting his hands on my neck […] He was very violent and it got worse and worse. He would put his hands tight around my neck and call me a whore and a bitch in front of my child. He didn’t let me register with a GP for four years. I was always scared of police, because he told me that, if you go to the police they will deport you, it was emotional blackmail, that they would take Mary away from me, because Mary is British and I would never see her again.” (Excerpt from an interview conducted by PICUM in 2011 for the upcoming report on undocumented women in Europe.)

This blog entry was posted also on the website of Flyktingbloggen (Refugee Blog) on 27 February 2012.

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