Women, children and other marginalised migrant groups

Abstract

INTRODUCTION The paradigmatic migrant has long been considered an able-bodied, adult male who leaves home to seek his fortune or save his life. Some of the principal components of international migration law – attribution of nationality, regulation of border crossing and protection of forced migrants – have been shaped by this perception. In the sphere of nationality, well into the twentieth century, women in many countries lost their nationality of origin on marriage to a foreigner, confirming the prevailing notion that allegiance to a sovereign and rootedness in a State were inherently male attributes. In terms of immigration control, until the mid-1970s and public acknowledgement of the so-called ‘feminisation of migration’, immigrants were generally assumed to be young, single, male workers, conveniently providing their host States with a discrete unit of labour. It came as something of a shock that workers were attached to families. And in the sphere of forced migration, refugees too were primarily seen as male political activists fleeing state oppression because of aspects of their civic status (such as their race, religion or political opinion). As a result, the foundational Convention relating to the Status of Refugees (1951) (‘Refugee Convention’), drafted after the Second World War, did not include gender as a possible ground of persecution. There was only one exception to this early masculinist view of migration: nineteenth- and early twentieth-century laws criminalising what we now call trafficking took it as axiomatic that the victims needing protection were women, especially young women. Over the past three decades, a more complex and accurate understanding of migration has gradually taken root. Despite some residual gender bias, most notably in United States jurisprudence, nationality law in Western democracies is generally non-discriminatory between men and women. Immigration regulations relating to labour migration now acknowledge the presence of both male and female workers as primary migrants. Refugee law has been substantially reshaped from its narrow early focus on adult males to encompass both gender- and child-based persecution as possible bases for the grant of asylum. International anti-trafficking laws now encompass not only young women, but children, both girls and boys, as well as persons with disabilities.

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