The applicant was given refugee status and had successfully applied for permission for his second wife to join him in Ireland. The present case arose when he sought to have his first wife join him. In considering the legal consequences of a polygamous marriage entered into in another country, the Supreme Court ruled that, where a man had married two wives under the laws of Lebanon, the first marriage is valid under Irish law but the second is not. The appellant (husband) had married two women in a manner permissible under the laws of Lebanon (their previous state of domicile). He sought a declaration, pursuant to Section 29 of the Family Law Act 1995, that his marriage to his first wife was valid on the date of its inception. The High Court found the polygamous marriage entirely invalid. On appeal, the Supreme Court reasoned that: (a) rules of private international law require the State to recognize a marriage validly contracted under a foreign system of law unless such recognition is prohibited by public policy; (b) the Constitution and Irish public policy envisage a marriage as a union between two people based on the principles of equality and mutual commitment; (c) there is therefore no bar to recognizing a marriage “that is in fact monogamous, where the only objection is that the system of law under which the couple married would permit more than one marriage;” and (d) Irish law and the Irish Constitution preclude the recognition of a second or subsequent marriage while the first marriage is valid, although that does not mean that a subsequent marriage can never have legal consequences. The Court granted the declaration of the validity of the first marriage because it was valid when contracted and the husband’s subsequent marriage should not preclude that.
Women and Justice: Keywords
Domestic Case Law
H.A.H v S.A.A and Others Supreme Court of Ireland (2017)
In der Beschwerdesache der A (In the Matter of A.) [E 1948/2018-13] (2019)
The appellant, a Somali girl, applied to the Austrian government for asylum and international protection due to her precarious situation in Yemen. The appellant’s family fled to Yemen when she was four years old because her family was discriminated against in Somalia due to their affiliation with a Madhibaan minority clan. The plaintiff’s brother and father were killed and no other family remained in Somalia. Further, female genital mutilation is a common practice in Somalia. The appellant’s application for asylum and international protection was rejected by the relevant asylum authorities and the Austrian Federal Administrative Court on the grounds that the nature of the persecution was found to be insufficiently intense or severe. It was further decided that the appellant’s genital mutilation had already happened , so the international protection against threatened genital mutilation could not apply. However, the Austrian Constitutional Court ultimately revoked this judgment, finding (among other conclusions) that the circumstances of this case were not given sufficient consideration, in particular, the disregard of the fact that women of minority clans in the relevant geographic areas were particularly vulnerable to risks of torture, rape, murder, and forced marriages. The lower court also failed to consider sufficiently the possibility of repeated genital mutilation. Finally, the Court referred to UNHCR’s finding that prior genital mutilation was an equally reasonable justification for the application for asylum and international protection because the victim suffered life-long physical and mental damages.
Die Beschwerdeführerin, ein somalisches Mädchen, beantragte bei der österreichischen Regierung Asyl und internationalen Schutz aufgrund ihrer prekären Situation im Jemen. Die Familie der Klägerin floh in den Jemen, als sie vier Jahre alt war, weil ihre Familie in Somalia aufgrund ihrer Zugehörigkeit zu einem Clan der Madhibaan-Minderheit diskriminiert wurde. Der Bruder und der Vater der Klägerin wurden getötet, und keine andere Familie blieb in Somalia. Außerdem ist die weibliche Genitalverstümmelung in Somalia eine gängige Praxis. Der Antrag der Klägerin auf Asyl und internationalen Schutz wurde von den zuständigen Asylbehörden und dem österreichischen Bundesverwaltungsgericht mit der Begründung abgelehnt, dass die Art der Verfolgung nicht ausreichend intensiv oder schwer sei. Außerdem wurde festgestellt, dass die Genitalverstümmelung der Beschwerdeführerin bereits stattgefunden hatte, so dass der internationale Schutz gegen drohende Genitalverstümmelung nicht zur Anwendung kommen konnte. Der österreichische Verfassungsgerichtshof hob dieses Urteil jedoch schließlich auf, da er (neben anderen Schlussfolgerungen) feststellte, dass die Umstände dieses Falles nicht ausreichend berücksichtigt wurden, insbesondere die Tatsache, dass Frauen von Minderheitenclans in den betreffenden geografischen Gebieten besonders gefährdet sind, gefoltert, vergewaltigt, ermordet und zwangsverheiratet werden. Die Vorinstanz hat auch die Möglichkeit wiederholter Genitalverstümmelung nicht ausreichend berücksichtigt. Schließlich verwies das Gericht auf die Feststellung des UNHCR, dass eine frühere Genitalverstümmelung eine ebenso angemessene Begründung für den Antrag auf Asyl und internationalen Schutz sei, da das Opfer lebenslange körperliche und seelische Schäden erleidet.
RRT Case No. 1101038 Refugee Review Tribunal (2011)
The applicant appealed a decision denying her a protection visa. The applicant demonstrated evidence that if she returned to Uganda, she would be forced to undergo FGM. The applicant was a member of the Sabiny tribe, meaning her father’s family had the right under Ugandan law to take her away from her mother and compel her to obey traditional practices, including FGM. She further testified that if she returned to Uganda there would be a risk of abuse as she was a Christian, which was not accepted in her family village. Furthermore, when she was 12, her family found a potential husband for her, a witchdoctor who believed in Satan and professed sacrificing people to achieve a particular objective. She was therefore afraid that if she returned to Uganda, she would be forced to marry this individual, who believed that sacrificing people could bring him power and money. The tribunal found that the applicant was a person to whom Australia owed protection obligations.
RRT Case No. 0808751 Refugee Review Tribunal (2009)
The applicant sought a review of a decision to refuse her a protection visa under s65 of the Migration Act 1958. The application was refused because the applicant was allegedly not a person to whom Australia had protection obligations arising out of the Refugees Convention. The tribunal investigated the history of the victim and her claims of substantial risk of being forced to undergo FGM if she returned to Uganda. The evidence presented included the fact that the process is not illegal in Uganda, that her father is relatively high-ranking in a tribe that finds FGM extremely important, and that she has in the past been abducted in order to be forced to undergo the process. She changed schools and stayed with relatives, but those means of escape have not worked as eventually her father and his tribe were always able to find her. As such, the tribunal concluded that there was a risk of serious harm if the applicant were forced to return to Uganda. It also concluded that she does satisfy the s36(2)(a) of the Migration Act and was therefore a person to whom Australia has protection obligations.
Minister for Immigration and Citizenship v. SZMDS High Court of Australia (2010)
The respondent, an allegedly homosexual citizen of Pakistan, arrived in Australia on a visitor visa in 2007 and applied for a protection visa. To be recognized as a refugee, the respondent had to show that he had a well-founded fear of being persecuted due to his race, religion, nationality, membership of a particular social group, or political opinion. The respondent argued that, as a homosexual man, he belonged to a particular social group that was persecuted and subject to harm in Pakistan. The respondent’s protection visa application was initially denied, and the Refugee Review Tribunal (Tribunal) affirmed this decision. The Tribunal found that while homosexuals in Pakistan constitute a protected group, the respondent was not actually a homosexual because he safely make a three-week visit to Pakistan before traveling to Australia and failed to seek asylum on a recent visit to the UK. On appeal, the Federal Court found that the Tribunal’s decision was based on illogical reasoning. The Minister for Immigration and Citizenship appealed the Federal Court’s decision to the High Court. In a majority decision, the High Court overturned the Federal Court’s decision, finding that the Tribunal’s reasons for not believing the respondent was actually a homosexual were sound.
Mrs. X v. Ministerio dell'interno Tribunale di Cagliari (2013)
The applicant, a Nigerian-born woman, was granted refugee status based on the absence of protection for violence against women generally in Nigeria, as well as her specific experience with gender-based violence. In 2010, the applicant was, without her consent, taken to Libya where she was subject to forced prostitution and violent attacks that included removal of applicant’s nails and hair. The applicant was then transferred to Italy where she applied to the Territorial Commission for international protection. Her application was denied and she appealed to the Tribunal of Cagliari to overturn the Territorial Commission’s decision. The Tribunal of Cagliari found that the applicant’s subjective credibility should have been considered, along with the objective facts available regarding the dire situation for women in Nigeria, and that the Territorial Commission’s findings were invalid because her application for international protection was not translated to a language that she was able to understand.
La ricorrente, nata in Nigeria, ottenne lo status di rifugiato sulla base dell’assenza di protezione per la violenza contro le donne in Nigeria, nonché della propria esperienza con la violenza di genere. In particolare, nel 2010, la ricorrente è stata, senza il suo consenso, portata in Libia, dove è stata soggetta a prostituzione forzata e ad abusi violenti che comprendevano la rimozione di unghie e capelli. La ricorrente è stata quindi trasferita in Italia dove ha richiesto alla Commissione Territoriale la protezione internazionale. La sua domanda venne respinta e quindi presentava ricorso al Tribunale di Cagliari per ribaltare la decisione della Commissione Territoriale. Il Tribunale di Cagliari ha ritenuto che si dovesse prendere in considerazione la credibilità soggettiva della ricorrente, unitamente ai dati oggettivi disponibili in merito alla terribile situazione delle donne in Nigeria, e che le conclusioni della Commissione Territoriale non erano valide perché la domanda di protezione internazionale non era stata tradotta in una lingua che la ricorrente era in grado di comprendere.
Claimant v. the Minister of Justice District Court of the Hague (2010)
The claimant was born in Somalia and left the country when her home was destroyed and four men attempted to rape her. The claimant sought residence in the Netherlands as a refugee under Immigration Act 2000. She argued that women in Central and Southern Somalia were systematically exposed to inhuman treatment. The claimant submitted reports that abuse and rape of women, by civilians and armed groups, was frequent, and that displaced women were particularly vulnerable during their flight. Gang rape was widespread, and victims (including young girls and boys) were selected at random. Further, rape is almost never prosecuted and the victims are discriminated against because they are seen as “unclean.” The report further stated that women in Somalia do not have access to justice and receive no protection from authorities. Human Rights Watch and UN reports also described women as suffering the brunt of abuse and repression cultivated by al-Shabaab’s decrees, including forced marriage, female genital mutilation (“FGM”) and gender-based violence. The District Court opined that women are in a vulnerable position in Central and Southern Somalia and, therefore, run the risk of suffering violence and human rights violations, and cannot obtain effective protection. They are therefore a group worthy of protection from inhuman treatment and torture.
Legislation
The Human Trafficking Prevention Act (the “HTPA”) was enacted to prevent human trafficking and to safeguard the rights of victims. The HTPA defines “human trafficking” and related offenses, including “improper debt bondage,” specifies the responsibilities of the competent authorities at the central government, city, county, and municipal levels (including for cooperation among such competent authorities and with international governmental bodies and NGOs to eradicate human trafficking). It also governs matters including the prevention and identification of offenses; the protection and sheltering of victims as well as protection of witnesses; the treatment of victims who are not Taiwanese citizens and do not have valid resident or visitor permits (including the issuance of temporary visitor permits as well as the timing and conditions for repatriation); the confidentiality of victims’ identities (with financial penalties for unauthorized disclosures); and criminal procedure (including use as evidence of victim statements made outside of judicial proceedings). Persons found to have committed criminal offenses under the HTPA are subject to imprisonment for up to seven years or (for certain offenses) for periods in excess of seven years as well as to fines up to N.T. seven million, depending on the nature of the offense. The HTPA further provides that any property or profit from assets acquired from human trafficking is to be confiscated regardless of its ownership except the part to be returned to victims. Additionally, the HTPA provides for suspension or revocation of the licensing of any Taiwanese vessel, aircraft or other means of transportation whose owner, operator, captain, pilot, or driver has been engaged in transporting trafficked persons, as well as revocation of the professional licenses or qualifications of the captain, pilot or driver. The HTPA applies on an extraterritorial basis outside of Taiwan for the crimes specified in the legislation. English translation available here.
This law sets the procedure for granting refugee status; the status of subsidiary protection; cessation and revocation of a refugee status and the status of subsidiary protection; temporary protection, identification documents; the rights and obligations of asylum-seekers, refugees, and aliens under subsidiary protection; and other issues related to asylum in BiH. Article 9 of the Law on Asylum enhances the protection of women as it prohibits the discrimination of aliens on all grounds stipulated in the Law on the Prohibition of Discrimination, including sex, sexual orientation, gender identity, and sexual characteristics. English translation available through RefWorld External URL.
This act contains relevant provisions regarding marriage recognition. In 2004, major restrictions were adopted in relation to child marriages and forced marriages that have been entered into abroad to discourage circumvention of Swedish law in cases of strong Swedish affiliation. According to the act, a marriage that has been entered into under foreign law is not recognized in Sweden:
if, at the time of the marriage, any of the parties was under the age of 18 if, at the time of the marriage, there would have been any other issue with the marriage under Swedish law, and at least one of the parties was at the time a Swedish citizen or was domiciled in Sweden if it is likely that the marriage was forced, or if the parties were not present at the same time during the marriage and at least one of them was at the time a Swedish citizen or was domiciled in Sweden.The above does not apply if both parties are over the age of 18 and there are special reasons to recognize the marriage.
An amendment to the Swedish Aliens Act allows for the potential issuance of residence permits to victims of human trafficking crimes. The permit is issued for the duration of the investigation or hearing into the crime. During the duration of the permit the victims are eligible for health care, financial aid, and medical attention.
The law identifies and provides certain protections for vulnerable groups of migrants, including pregnant women, single mothers, and victims of domestic violence, rape, and human trafficking. The act also contains temporary residence provisions for victims of trafficking or individuals who are victims of serious criminal offenses. Victims of trafficking may be granted residence for a period of one year, whereas victims of serious criminal offenses may be eligible to stay for a minimum of six months and a maximum of one year, though this can be extended if the factors that the temporary residence was based on are still continuing. The act includes provisions to grant such individuals safe accommodation, psychological and material assistance, counseling, and access to education for minors. (English translation available here.)
Article 66a provides that a foreign national shall be expelled from Switzerland for a period of five to 15 years if they are convicted of, among other things, female genital mutilation (Penal Code Art. 124, para. 1), forced marriage or forced registered partnership (Penal Code Art. 181a), trafficking in human beings (Penal Art. 182), sexual acts with children (Penal Code Art. 187, para. 1), sexual coercion (Art. 189), rape (Art. 190), sexual acts with persons incapable of judgement or resistance (Art. 191), encouraging prostitution (Art. 195), aggravated pornography (Art. 197, para. 4, second sentence – pornography containing genuine sexual acts with minors), genocide (Art. 264), crimes against humanity (Art. 264a), serious violations of the Geneva Convention of 1949 (Art. 264c), and other war crimes (Art. 264d and 264h). Unofficial English translation available here.
Article 4(6) of the Law on Employment and Work of Foreigners provides that when employing a foreigner, the employer must not put the job seeker in less favourable position due to race, color of skin, gender, age, health condition, that is, disability, religious, political or other convictions, trade union membership, national or social background, family status, property status, sexual orientation, or due to other personal circumstances. (English translation available from the ILO through the external link.)
International Case Law
Hashi v. Denmark Human Rights Committee (ICCPR) (2017)
Hibaq Said Hashi left Somalia for fear of persecution by Al-Shabaab. She was divorced from one man and married to a second man, but her former husband claimed they were not divorced and she was having sexual relations with another man, which caused Al-Shabaab to call for her to be stoned. Her father helped her leave Somalia and then he was killed, and her current husband was sentenced to death. She traveled to Italy by boat, was registered and determined she was pregnant, but she faced poor conditions in Italy so she left for Sweden to have her baby. When she learned Swedish authorities planned to send her back to Italy, she and her son moved to Denmark where she applied for asylum. She claimed that if she returned to Somalia she would be persecuted and if she returned to Italy she would face harsh living conditions and would not be able to provide for her son’s basic needs. She was ordered to leave Denmark to return to Italy, which Denmark considered her first country of asylum. Upon appeal, the Committee, acting under article 5(4) of the Optional Protocol, decided that the removal of Hibaq Said Hashi and her son to Italy without any assurances from Italy that it would receive her and her son in conditions suitable for her child’s age and family’s vulnerable status would violate their rights under article 7 of the Covenant. The Committee required Denmark to review her claim in consideration of its obligations under the Covenant and the need to obtain effective assurances from Italy. While considering her request for asylum, the Committee requested that Denmark not deport her and her son.
Seferovic v. Italy European Court of Human Rights (2011)
The detention pending deportation of a woman who had recently given birth found to be unlawful and violated Article 5 §1(f) and Article 5 §5 (right to liberty and security) of the European Convention on Human Rights. In September 2000, the applicant, a woman from Bosnia and Herzegovina, applied to the Italian authorities for refugee status. The application was not forwarded to the competent commission because it contained formal defects. On September 26, 2003, the applicant gave birth to a child, who died a few days later at the hospital. Then, on November 11, 2003, the police served her with a deportation order and transferred her to a holding center. The European Court of Human Rights declared that the deportation order and the applicant's detention were in breach of Italian immigration law no. 286 of 1998, which provided that her deportation should have been suspended until six months after she had given birth (March 26, 2004), regardless of the fact that the baby had died. In March 2006, the Rome Civil Court granted the applicant refugee status. In addition, by way of just satisfaction, the government was required to pay the applicant 7,500 euros (EUR) for non-pecuniary damage for her unlawful detention as there was no redress available under Italian law.
La detenzione di una donna che aveva da poco partorito, in attesa della sua deportazione, è stata ritenuta illegale e in violazione dell’articolo 5 § 1 (f) e dell’articolo 5 § 5 (diritto alla libertà e alla sicurezza) della Convenzione europea dei diritti dell’uomo. Nel settembre del 2000, la ricorrente, una donna della Bosnia-Erzegovina, richiedeva alle autorità italiane lo status di rifugiato. La richiesta non veniva inoltrata alla commissione competente in quanto conteneva delle irregolarità formali. Il 26 settembre 2003, la ricorrente dava alla luce un figlio, che moriva pochi giorni dopo in ospedale. In seguito, l’11 novembre 2003, la polizia emetteva nei confronti della donna un decreto di espulsione e la trasferiva in un centro di soggiorno temporaneo. La Corte europea dei diritti dell’uomo dichiarava che il decreto di espulsione e la detenzione fossero stati emessi in violazione della legge italiana n. 286 del 1998, che prevede che l’espulsione avrebbe dovuto essere stata sospesa fino a sei mesi dopo il parto (26 marzo 2004), indipendentemente dal fatto che il figlio fosse morto. Nel marzo 2006, il Tribunale civile di Roma accordava alla Sig.ra Seferovic lo status di rifugiato. Inoltre, come giusta compensazione, poiché la legge italiana non prevedeva alcun risarcimento, al Governo veniva imposto di pagare alla ricorrente 7,500 euro come danno non patrimoniale per la sua detenzione illegale.