Although Canada provides many resources to support women who have experienced sexual violence, migrant women with precarious immigration status are practically invisible and do not usually have access to these resources. Isn’t it time for immigration enforcement agencies, police and social services to shift their focus, from apprehension and criminalization to protection and assistance? Canada must meet its obligations under international law to better protect migrant women.

Take, for example, the first resource that most of us would think of when a sexual assault occurs: the police and the criminal justice system. Yet, for a migrant woman without immigration status, that avenue may be closed. After a sexual assault occurs, the type of services and recourse a woman is eligible for or is able to utilize, is directly linked to her immigration status.  From access to justice to access to health care, it is all determined by her status. Women without status fear they won’t be supported by police but will instead be deported or placed in detention. Migration laws and fear of deportation act as a barrier for survivors to report sexual assaults. This also creates a breeding ground for continued violence and fear, further empowering perpetrators of sexual violence.

Let’s consider some important policy terms. Women without immigration status are deemed “nonstatus,” which encompasses those whose refugee claims were rejected; whose immigration sponsorship has failed; victims of human trafficking; those whose visas or permits to stay have expired; and undocumented entrants to Canada.

Many migrant women have lived here without status for 10, 20 or more years and have no links to their country of origin to which they might be deported if found out by Canadian authorities. Countless women make refugee claims that are rejected; or choose to remain without status rather than return to their countries of origin.  Some women enter Canada legally through avenues such as sponsorship by an employer, spouse, or family member. But when these avenues fail, those women may become nonstatus. Another important term, “precarious status,” refers to women with less than full immigration status. This includes documented but temporary workers, students, refugee applicants, as well as those holding other forms of authorized status, such as visas and permanent residency.

Women with no status or whose status is precarious often work in situations that are also precarious – nonstandard employment. This is usually temporary work without employee benefits or legal protection and usually pays minimum wage or less. A plethora of such workers across Canada suffer in these precarious conditions because of legislative and policy inadequacies.

Women in these situations are especially at risk because they are the most likely to depend on third parties for residence and/or employment. They are also the least likely to seek police or medical assistance after a sexual assault from fear their status will be discovered. These women are susceptible to workplace exploitation, including poor working conditions where they are at risk of workplace injuries.

Migrant women without status have some hope of finding protection in one of Canada’s “sanctuary cities,” which include Hamilton, London, Montreal and Toronto. A sanctuary city is one that aims to limit cooperation with enforcement of immigration law. In 2013, Toronto City Council reaffirmed its commitment to nonstatus residents, and aimed to improve services to this vulnerable population.

Significantly, sanctuary cities apply a “Don’t ask, don’t tell (DADT)” policy, in which service providers – from police to health to social services – shouldn’t inquire into a client’s immigration status; and shouldn’t inform the Canada Border Services Agency (CBSA) about clients. This is a powerful idea: if implemented correctly, it would allow any woman, regardless of her migration status, to access services without fear of discovery.

Unfortunately, in practice, sanctuary cities have failed to live up to this policy, creating severe anxiety for nonstatus women because they cannot be certain that seeking services won’t expose them to the CBSA. In Toronto, the DADT policy is only partially upheld by the police, who have a broad discretionary power that, in practice, makes it almost impossible for a migrant to know if they might be reported to the CBSA. This has happened too often.

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Research by the advocacy group, No One is Illegal,  found that Toronto police had conducted numerous status checks in violation of the DADT policy; that numerous calls had been made to the CBSA; and that the Toronto police had been asking about status and taking steps to enforce immigration law. The 2015 study showed numerous cases where victims and witnesses of crime were reported to the CBSA, making it clear that anyone contacting police could be subject to deportation or detention. It’s understandable why women without status who had been sexually assaulted would not consider the police an appropriate avenue of protection or justice. Ultimately, this conveys the message to nonstatus women that the protection of the state is not available to them. This has the effect of muzzling them, while permanently depriving those with precarious status of their rights under federal and international human rights legislation.

All individuals, regardless of immigration status, should have their rights protected by the Canadian Charter of Rights and Freedoms, including protection from discrimination and security of the person. In practice, this is not the case. Access to services and rights for nonstatus women is at best minimal and usually almost nonexistent.

Compliance with international commitments would require changes in Canada’s immigration enforcement and police services. But it is essential: Canada has ratified numerous international human rights treaties that protect migrants and those without status. These include the International Covenant on Civil and Political Rights , International Covenant on Economic, Social and Cultural Rights and the Convention on the Elimination of All Forms of Discrimination Against Women. These treaties mean status and nonstatus people should enjoy equal access to civil, political, economic and socio-cultural rights. The International Convention on the Elimination of All Forms of Racial Discrimination recommends participating states eradicate obstacles that nonstatus and precarious status people face in exercising their economic, social and cultural rights, and in accessing education, housing, employment and health care. Significantly, it also requires that states shift away from determining standards of treatment based on citizenship status. Despite this, women without status or with precarious status continue to be deprived of social services and protection of the law available to citizens.

Canada is in direct contravention of its international legal obligations and must work to eradicate the treatment of individuals based on immigration status. At the same time, survivors of sexual violence with precarious immigration status need a framework through which they can come forward with a criminal complaint, safe from retaliation and protection from fear of referrals to immigration enforcement. In an era where challenges are present for survivors, from individual to systemic levels, multiple and cross-sectoral interventions are needed to improve outcomes for migrant women.

This article is part of the Improving Canada’s response to sexualized violence special feature.

Photo: Shutterstock by BEAUTY STUDIO

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Deepa Mattoo
Deepa Mattoo is executive director of the Barbra Schlifer Commemorative Clinic in Toronto.  She brings 20 years of legal advocacy, social justice reform, direct human rights service provision and public education experience to the position. Previously she was executive director and staff lawyer at the South Asian Legal Clinic of Ontario.

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