Update: 29.08.2018

Domestic violence: protection for affected female migrants

According to a July 2018 report by the Federal Council, the hardship ruling on the right of stay of foreign victims of domestic violence has largely proven its worth in cantonal practice. But for years, several NGOs have criticised Switzerland for its insufficient implementation of the hardship practice.

22 deaths a year

Figures published by the Federal Statistical Office show that on average, 22 women die every year from conjugal violence. There were 21 deaths in 2017. Female migrants suffer comparatively more frequent and more severe domestic violence than Swiss women. Women who come to Switzerland thanks to family reunification measures are particularly vulnerable to such violence because their residence permits are directly linked to their marital status, causing some women to stay in abusive relationships.

The Schweizerische Beobachtungsstelle für Asyl- und Ausländerrecht (SBAA – Swiss Monitoring Centre for Law in Asylum and Migration) called attention to this issue when it published a report in 2011 in which it proved, based on individual cases, that migrant women who want to escape from violent marriages face enormous difficulties and do not receive effective protection from the state. In many cases, this results in the women and their children returning to violent husbands and suffering from further years of violence from their partner (or father).

Legislative change in 2012

In order to meet the special needs of this social group, Parliament amended Art. 50, Para.2 of the Foreign Nationals Act (FNA). The law change was meant to better protect female migrants married to a Swiss citizen or a man with a residence permit C from domestic violence. In order to guarantee effective protection, domestic violence was expressly listed as a reason for granting an extension of their residence permit in the case of a separation.

This new hardship provision entered into force on 1 July 2013 and should have improved the situation for women migrants. However, it soon became clear that the provision was not effectively implemented by administrative and judicial authorities because they were given too big a margin of discretion.

The problem of the burden of proof

Women affected by domestic violence are wholly responsible for providing evidence of their abuse. In order to be allowed to remain in Switzerland after a separation, they must prove they suffered systematic and “sufficiently intense” abuse and that they would have trouble reintegrating into the social fabric of their country of origin or that the violence had long-term consequences making it difficult for them to find work.

Promising regulations

In 2012, the Federal Office for Migration (now called the State Secretariat for Migration SEM) attempted to lighten the burden of proof by introducing new regulations. Among other things, the SEM recommended reports from women’s shelters and victim advisory centres be included as evidence of domestic violence. But these regulations did not solve the problem, because cantons must ultimately ensure the regulations are implemented.

The SBAA was critical of the regulations from the outset. SBAA President Ruth-Gaby Vermot made a statement in 2012 that is still relevant today: “Only if the migration offices really implement the planned changes without any discretion on their part, fairly and not arbitrarily, the interests of migrants affected by violence can be better protected.”

Proving domestic violence

It is extremely difficult for women to prove they are victims of domestic violence in a sufficiently credible manner, as shown in a report by the Observatoire romand du droit d’asile et des étrangers (ODAE) from 8 March 2016. Evidence such as medical certificates, police reports, criminal charges and respective criminal convictions are accepted as proof of domestic violence, while statements by neighbours and from women’s shelters still do not get the necessary emphasis and weighting.

The ODAE finds it problematic that proof of a criminal charge must be provided in some cases. Women often do not trust the Swiss legal system or are afraid to come forward due to threats from their husbands. They therefore often do not report domestic violence or do not press charges, since Art. 55a Civil Code still allows the charge to be withdrawn, even though marital violence is considered an offence prosecuted ex officio even in minor cases (minor assaults, repeated violence, threats, etc.). Moreover, the criterion of “intensity” of violence is defined insufficiently and allows for a certain degree of domestic violence. Authorities assess certain acts of violence as “not severe enough” and use this reasoning to renew the victim’s residence permit. The criterion of “intensity” also raises an ethical issue since it is based on the idea that a certain degree of domestic violence is acceptable.

Several UN Committees (CEDAW, Human Rights Committee and Committee of Social Rights) have repeatedly criticised Switzerland for this practice.

Federal Council report

In 2015, National Councillor Yvonne Feri submitted the postulate “Right of stay for victims of domestic violence” (15.3408), asking the Federal Council to produce a report on the practical implementation of the right of stay for migrants affected by violence. The SEM commissioned an external study to provide an overview of the legal practice of how the determination of hardship is implemented according to Art. 50 FNA. The findings of this study served as the basis for the Federal Council’s July 2018 report.

Generally positive

Overall, the report is positive. Introducing the determination of hardship provided greater protection for victims of domestic violence. The SEM granted an approval for reasons of hardship in around 520 domestic violence cases between 2011 and 2015.

According to the Federal Council, the report shows that the necessary legal and organisational measures have been taken and that stakeholders have been coordinating and cooperating with one another. There is also support for victims, as well as information, sensitivity, and public relations training and professional development courses from specialists.

Room for improvement

VAccording to the report, the biggest potential for improvement lies if providing information to affected persons. To counter this deficit, the Federal Council is open to an awareness campaign by intervention and competence centres. The SEM guidelines will be selectively complemented. In addition, the appropriate federal authorities will continue to support intervention and competence centres to the best of their abilities.

The ODAE maintains its criticism

In a brief media release, the ODAE criticised the Confederation’s positive summary, because the figures in the report do not reflect reality. The Federal Council’s statistic of 60 granted hardship cases out of a total of 77 in 2017 is only half the story. Before a request reaches the SEM, the hardship case has to pass cantonal authorities and there are no statistics available on the numbers of cases rejected by the cantons.

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