The Istanbul Convention and its significance for the protection of refugee women
Istanbul Convention is a shorthand term for the “Council of Europe Convention on preventing and combating violence against women and domestic violence” that is in effect since August 2014. The Convention stipulates that gender equality shall be enshrined in the national laws of the signatory states and that all discriminatory legislation shall be abolished. This creates an obligation for state authorities to take corresponding measures in areas such as prevention, protection and sanctioning. In Germany, the Istanbul Convention entered into force in 2018.
With regard to refugee law, articles 60 and 61 of the Convention are particularly relevant, since they assert the principle of non-refoulement of persons seeking protection (61) and stipulate that the signatory states shall recognise gender-based violence against women as grounds for asylum and for granting refugee protection status (60).
In asylum proceedings, gender-based violence is mostly (still) linked to “membership of a particular social group” as defined in the Geneva Refugee Convention. For example, section 3b, sentence 4 of the Asylum Act states that “if a person is persecuted solely on account of their sex or sexual identity, this may also constitute persecution due to membership of a certain social group.” Accordingly, gender-based persecution will be subsumed under the same category, just like sexualised violence, genital mutilation or also punishment for violations of dress codes and so on. This, however, narrows the perspective on persecution and at times results in other dimensions of persecution (such as political or religious beliefs and the like) being overlooked. The Istanbul Convention, in contrast, calls for a gender-sensitive perspective that also takes into consideration other grounds for persecution such political or religious beliefs, nationality and racism. This is because violence due to one’s «gender», which manifests itself as sexism and misogyny, is inherent in any other form of persecution.
In this context, the strength of the Istanbul Convention is that also violence in partnerships is explicitly regarded as a form of gender-based persecution that is relevant for the decision on refugee status. This means that, if states neglect to take protective measures, one would in practice be entitled to protection due to having been subjected to partnership violence. In Germany, the requirements laid down in the Convention are at least in theory implemented in the asylum procedure, in that the BAMF will, in cases of violence, have a specially-commissioned case-officer focusing on gender-specific persecution conduct the interview. Moreover, in such cases, the person concerned is granted the right to a female interviewer and a female interpreter.
As regards residence law, article 59, sentences 1 to 3 of the Convention define binding regulations, but since the German government has made a reservation in respect to sentences 2 and 3 of this article, these regulations are currently non-binding. Article 59, sentence 1 of the Convention stipulates that, in case of violence in a marriage, the person affected by violence shall be granted an autonomous residence permit, irrespective of the duration of the marriage. The German Residence Act, however, states that a marriage must have existed for at least three years and that, for shorter marriages, this requirement can only be waived in order to avoid particular hardship.
Article 59, sentence 2 of the Convention stipulates that persons whose residence status depends on that of their spouse or partner shall be granted an autonomous residence permit in the event that their spouse or partner are deported (due to having been convicted of a criminal offense). German law provides no comparable regulation thatwould be applicable to such situations. With its reservation against this provision, the German government obstructs the protection of women against violence as required by the Convention.
Article 59, sentence 3 of the Convention stipulates that women affected by violence shall be granted a residence permit when they are supposed to give testimony in corresponding criminal proceedings. Regarding this point, the legal situation for women in Germany has improved, despite the reservation made by the government. The newly added sentence 4a of section 25 of the Residence Act states that women affected by violence shall in such cases be granted a temporary residence permit if their stay in the federal territory is considered to be appropriate in connection with criminal proceedings relating to the case of violence, if they have broken off contact to the accused persons and if the woman has declared willingness to testify as a witness in the criminal proceedings. Also, after the criminal proceedings have ended, the residence permit shall, according to section 25, sentence 4a, subsentence 3 of the Residence Act, be extended if humanitarian or personal reasons or public interests require the person’s further presence in the federal territory.
With the latter provision, it was taken into account that many women who had become victims of violence or human trafficking preferred to stay illegally in Germany if their willingness to testify as a witness excludes any possibility of extending a temporary residence permit. Once the criminal proceedings had ended, an illegal stay often seemed preferable to having to return to their respective countries of origin.