Women and Immigration Law

New Variations on Classical Feminist Themes

Thomas Spijkerboer, Sarah Van Walsum

• Publisher: Routledge-Cavendish
• Year: 2007
• Print ISBN: 9781904385646
• eBook ISBN: 9781135308360
• Edition: 1
• Topic: Law
• Subtopic: Gender & The Law
• Index: Law

This book examines immigration law from a gender perspective. It shows how immigration law situates gender conflicts outside the national order, projecting them onto non-western countries, exotic cultures, clandestine labour and criminal organizations. In doing so, immigration law sustains the illusion that gender conflicts have moved beyond the pale of European experience. In fact, the classical feminist themes of patriarchy, the gendered division of labour and sexual violence are still being played out at the heart of Europe's societies, involving both citizens and migrants.

This collection of essays demonstrates how the seemingly marginal perspective of immigration law highlights Europe's unresolved gender conflicts and how a gender perspective can help us to rethink immigration law.

Part I
GEOPOLITICAL CONTEXT

1
BORDER RIGHTS AND RITES

Generalisations, stereotypes and gendered migration

Jacqueline Bhabha

The same physical act can have opposite effects. Boiling an egg makes it harder; boiling a potato makes it softer.¹ It all depends on what is being boiled. So it is with migration. The physical act of crossing a border between one country and another can be a life saver or a death sentence; a threshold to fame and wealth or a prelude to isolation, ostracism and destitution. The act of moving is in itself (morally, economically, legally and emotionally) neutral, neither good nor bad. Contrast this with situations that clearly are good or bad, such as having a home on the one hand or forced labour on the other. These situations bring with them clear public duties and obligations, irrespective of the merits of individual circumstances. Take housing. The right to adequate housing is considered a cardinal human right.² Legal experts, politicians and activists may debate who owes the duty to provide shelter (the state, the employer, the family?); what constitutes ‘adequate’ shelter (does it include sanitation, heating, privacy?), and to whom the duty is owed (only citizens, residents, asylum seekers, minors?). But no one would defend the advantages of homelessness over those of having a home, and no sensible political platform could advocate this. The right to shelter is uncontroversial. Many, however, would rather not cross a border than migrate and most would rather not have to cross a border. So the right to move, if it can be said to exist at all, is different from the right to shelter – there are circumstances that make it critical, but there may also be circumstances that make moving potentially lethal. Unlike with housing, the luxury of not moving may be as coveted as the right to move.

Forced labour provides the opposite type of contrast. It is prohibited by international law and states have an obligation to take steps to abolish it.³ Again, there is debate about the boundaries of the concept: the distinction between forced labour and exploitative but voluntary labour; the scope of the concept as applied to different categories of worker (children, pregnant women, the disabled, prisoners); the boundary between forced labour and some types of hazardous or socially stigmatised work. But there is no disputing the state’s obligation to intervene to prevent it, and to take steps to protect those affected by it. Labour organisations and industrial relations experts do not question the legitimacy of state intervention or the importance of enforcing sanctions against coercive employers. Not so with migration. Migrant workers, and advocates concerned with their rights, disagree on the merits of state intervention to block or restrict potentially exploitative labour migration. Some argue that the state has an obligation to intervene to prevent migrants clearly destined for forced labour; others argue that selective exit controls targeted at particular members of the population are inherently discriminatory, paternalistic and motivated by racist or conservative political pressures. There is no consensus.

These contrasts are instructive. They capture the difficulties inherent in framing migration in general in terms of absolute rights or state obligations. And they emphasise the importance of specificity in any meaningful discussion of migration issues. There are many vectors of specificity in migration: the ‘where’ – analysing the migration route; the ‘why’ – considering the purpose of migration; the ‘when’ – the length of migration. At different times and in different contexts each of these vectors is the focus of political and legal attention: ‘where’ – the construction of fortress Europe as a shield against the South and the East; ‘why’ – the denigration of refugee protection as a foil for ‘economic migration’; ‘when’ – the insistence on classifying longterm labour migrants as ‘guest workers’. But the cardinal political concern that dominates all the others is nearly always the ‘who’ of migration – the demographic characteristics of migrants. At the centre of all debates about migration, as an element in globalisation, as an aspect of human rights or of xenophobia, as a feature of regional integration, as a correlate of development or trade regulation, as an ingredient in cultural exchange and transformation, is the preoccupation with who is migrating. Nationality/race/ethnicity (or the fashionable contemporary proxy for these categories, ‘culture’) is the prime discriminatory criterion: according to one US study, immigration inspectors prejudge passengers according to the geographic region where the flight started – dividing them into ‘clean’ or ‘dirty’ (IOM, 2002: 36, citing Gilboy, 1991: 583). Class, gender and age follow close behind as key elements in profiling stereotypes.⁴

Decision making about eligibility for exit, transit, entry and stay is dominated by regulatory and classification systems, both implicit and explicit, which reflect assumptions about legitimacy, vulnerability and desirability related to these demographic characteristics. As a study of decision making by US immigration inspectors found, inspectors rely on ‘known categories’, usually nationality but often gender and age, to ‘sift’ or ‘winnow’ out suspicious people with a minimum of time and effort (Gilboy, 1991: 578–80). One interviewed inspector said: ‘Any male from [country x] you secondary. You don’t waste your breath. They’re not going to tell you anything. They’re going to give you a sing-song language, or they are going to lie to you anyway’ (Gilboy, 1991: 586). Demographic characteristics of course impact on decision making at both ends of the migratory chain: they affect the choices and pressures that impact on the migrant him or her self, as well as the regulatory framework applied by individual decision makers, be they visa officers, immigration adjudicators or judges.

So, the options and constraints that impinge on an impoverished rural Moroccan 20-year-old will govern the migration choices made, just as the political and cultural attitudes to this demographic group will dictate the immigration procedures the Moroccan is exposed to when leaving, travelling and crossing the border. The two pictures – the migrant’s and the immigration officer’s – may be transparent and match closely (as with German corporate transnational transfers or contract labour agreements for workers from the Philippines where the migration package – visa, job, accommodation, salary, family accompaniment, length of stay – are fixed in advance); they may be radically divergent (wealthy urban Egyptian visitor detained as Al Qaeda member; Bangladeshi family member travelling to join settled spouse); or they may overlap but require extensive negotiation, delay, litigation to merge (Sri Lankan Tamil fleeing persecution by the LTTE in Jaffna; Nigerian accountancy student).

How does gender play into this complex set of demographic equations that determine the relationship between the migrant’s self-perception and actual situation on the one hand, and the immigration officer’s mental picture and actual legal framework and classificatory rules and quotas on the other? Make a thought experiment: at the simplest level, the examples of different migrant situations I just presented were not gendered, but did you gender them as you read the paragraph: the rural Moroccan crossing the border; the German transnational corporate executive; the contract worker from the Philippines; the wealthy Egyptian detained post 9/11; the Sri Lankan Tamil seeking asylum from the Tigers; the Bangladeshi spouse seeking family reunion; the Nigerian accountancy student? If yes, then why? Because stereotypes are so fundamental to our use of language that they structure our thought and comprehension processes automatically?⁵ Is this good or bad or morally neutral? In other words, are we ‘cognitive misers’ (Fiske and Taylor, 1984), using stereotypes to do just enough mental work to get by but cutting corners in terms of accuracy? Or are we ‘motivated tacticians’ (Fiske and Taylor, 1991), using stereotypes as a sensible simplifying strategy for coping with a large amount of data? What are the consequences? For example, does our assumption that the Egyptian visitor suspected of terrorism is male mean that a woman would be less likely to be stopped at the airport or detained on entry, that she would be favoured, and would be likely to benefit? Is this gender discrimination? Does the stereotype of the Bangladeshi wife trailing rather than leading the family migration mean that a woman sponsor seeking to bring her spouse to join her would encounter greater obstacles than a man? If so, then this is gender discrimination, but is it discrimination against the woman sponsor, the male spouse or both?

I pose these questions not to engage in semantics but to illustrate how easy it is to slip into simplistic but incorrect assumptions about gender discrimination and migration. Many of us, myself included, assumed for years that gender discrimination was synonymous with discrimination against women – that female migrants were disadvantaged at all stages of the migration process by a patriarchal migration paradigm. We had good reason for this assumption. We saw British immigration officers subject South Asian women seeking to enter the UK as fiancées to ‘virginity tests’, following official government policy, because the stereotype was that a South Asian fiancée had to be a virgin (Bhabha and Shutter, 1994: 111–13). Ergo, if a young woman applying to enter in that category turned out, on inspection, not to be a virgin, then she was deemed by definition not to be a ‘real’ fiancée. We saw Dutch asylum officers refuse Eritrean women refugee status because their form of participation in the liberation struggles – cooking, washing, hiding male comrades – was considered insignificant and purely personal, by contrast with the qualifying behaviour of the male activists. We saw American immigration judges deny refugee protection to a Salvadorian woman raped by government paramilitaries after they killed her guerrilla relatives because the rape was not considered ‘political’ but a private issue of personal attraction; or we found gross disparities in the percentages of Mexicans who were subjected to expedited removal (85 per cent of women versus 35 per cent of men between 1997 and 1999) (Thomas J. White Center on Law and Government, 2001: 15).We saw family reunion policies which assumed that the head of household was male, that women should follow their husbands and not vice versa, that single parents (of course overwhelmingly female) who had migrated to seek work and left their children in the care of grandparents but supported them by sending most of their earnings back home could not sponsor their children to come and join them because they could not prove that they had had ‘sole responsibility for them’ – a contradiction in terms! We saw Italian authorities returning women to Nigeria within 48 hours of arrival, simply on the presumption that they were Nigerian nationals and therefore sex workers (Pearson, 2002: 147) – a compelling example of the interaction between race and gender stereotypes (Crenshaw, 1991).

Even temporary visas were discriminatory – in the UK, male students could bring their spouses with them and get permission to work but female students could not (Bhabha and Shutter, 1994). Bangladesh, India, Indonesia and Pakistan prohibited women from taking jobs abroad as domestic workers to pre-empt the possibility of domestic abuse or trafficking, forcing women to bribe their way out of these restrictions (Charnowitz, 2002). In the US, young women entering to visit friends of the family and claiming that they would do some babysitting were automatically referred for further questions under suspicion of being ‘nannies’ (Gilboy, 1991: 590–1). We also had to contend with citizenship laws that reflected patriarchal assumptions about family structure – women losing their nationality of origin when marrying non-national men (but not vice versa), discriminatory rules about the transmission of citizenship from parent to child (in some countries, only fathers could transmit their nationality to their foreign-born, illegitimate children, in other countries only mothers could do so) (Kerber, 2003).

And it was not just the black letter of the law that was discriminatory. Immigration procedures exacerbated the unfairness of the law by adopting processes that were on the face of it gender neutral but had profoundly prejudicial effects for women. For example, male interviewers questioning immigration applicants unaccustomed to interacting with unrelated men; aggressive cross-examination of trauma and rape victims in confrontational settings after long transcontinental flights; the machinery of immigration control operated through gendered and racialised mechanisms that targeted certain applicants disproportionately. There is no clearer example of this than the discovery that in the 1990s US Customs officers at major airports searching for transporters of illegal drugs wrongly subjected disproportionately large numbers of African-American women to thoroughly intrusive body cavity searches (Schauer, 2003: 176). The overwhelming majority were completely innocent, targeted simply because of their race and gender.

But as our thinking has progressed, and as we have moved from denunciation to investigation, from certainty to a more nuanced questioning, certain flaws in our original schematic approach have became apparent. Our assumption that gender discrimination always disadvantaged women compared to men was wrong, or at least simplistic. We had been too quick to assume, along with everyone else, that women were perennial ‘victims’ of the system – defenceless, vulnerable, naïve agents who were taken advantage of by others. Careful research revealed, for example, that among asylum applicants in a range of developed states, a higher proportion of women than men were granted refugee status. Far from being discriminated against, women were more – not less – likely to be accepted as refugees. Whether this was because women had greater hurdles to overcome to become refugees in the first place, and therefore had stronger claims than their male counterparts; or whether the assumption that women were more ‘vulnerable’, more likely to be victims of persecution, more candid and honest, more in need of protection, less threatening to the job market elicited more sympathetic responses from the decision makers; or whether the fact that smaller numbers of women than men applied for asylum made them less likely targets of exclusionary hostility – the reasons for the relative advantage of women over men in asylum were not clear. But the facts were, and they contradicted the confident assertion that refugee protection was unfair to women because it was dominated by a male paradigm of the refugee. Our research also revealed that far fewer women than men made applications for asylum in developed states – not because smaller numbers of women were in need of refugee protection, quite the contrary (women refugees outnumber men in all states neighbouring source countries), but because most refugee women never got beyond countries immediately neighbouring their home country (Bhabha, 2004).

So we had to acknowledge that more complex processes of gender discrimination and gendering were at play throughout the migration process, and that they were not limited to the post-entry stage. The pre-migration situation imposed different and often increased restrictions on female migrants than on their male counterparts, less access to the resources necessary for travel, greater obligations towards other family members (children, the elderly) and cultural obstacles to independent travel. In other words, these formed a complex combination of societal, household and individual factors which resulted in different ‘migratory probabilities’ (Boyd and Grieco, 2003) for men and women – an amalgam of more or less rational choices by individuals, families and societies of origin which affected the timing and the distance of migration. It was not so much a question of individual decision making – women being less adventurous or confide...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• List of Contributors
• Acknowledgements
• Introduction
• Part I Geopolitical Context
• Part II European Perspectives
• Part III National Case Studies