sou · H0B345 · 2012-06-29 00:00:00 — Det betyder också att kvinnor kan brytas ner utan kraftigare våld. För utländska kvinnor med möjliga språksvårigheter, bristande kontaktnät och sämre kännedom om det svenska samhället kan situationen vara än värre. Mot den bakgrunden ser vi det som stötande att utländska kvinnor inte omfattas av skyddsregeln om våldet är mindre allvarligt. Det finns även kunskap om hur svår en uppbrottsprocess för en kvinna kan vara, just eftersom våldet bryter ner henne och övergreppen skapar en normaliseringsprocess. Kriterierna om att kvinnans återgång till mannen förminskar våldet och att förhållandet ska ha upphört på grund av våldet tar inte hänsyn till denna kunskap och framstår därför som förlegade. Vi föreslår alltså nu en skyddsregel utan inskränkningar av de tidigare kriterierna. Det ska räcka att kvinnan gör sannolikt att våld eller allvarliga kränkningar av henne eller barnet förekommit i förhållandet. Även med en förenklad skyddsregel kommer det framöver krävas stora insatser av den utsatta kvinnan för att skydda sig själv och det eventuella barnet. Uppbrottsprocessen är särskilt komplicerad och kräver mycket stöd. I brottmål tillsätts därför regelmässigt ett målsägandebiträde för offret. För våld eller kränkningar som begås av en anknytningsperson mot en utlänning tillkommer den juridiska svårigheten med den uppskjutna invandringsprövningen. Vår utredning visar att den s.k. tvåårsregeln är svår att hantera. För att kunna ta tillvara sina rättigheter krävs därför juridisk kompetens. Vi föreslår att en kvinna som uppger våld/allvarlig kränkning i förhållandet riktat mot henne eller barnet ska ha rätt till ett offentligt biträde. Den uppskjutna invandringsprövningen innebär en risk för utlänningen, eftersom hon (oftast en kvinna) kan behöva lämna landet om förhållandet bryts. bärs risken enbart av utlänningen, medan anknytningspersonen efter avslutat förhållande kan inleda ett förhållande med annan utlänning. Som vi analyserat innebär denna ojämna riskfördelning ett jämställdhetsproblem, eftersom den innebär en maktförskjutning. Konsekvenserna för utlänningen kan bli mycket svåra. Så länge den uppskjutna invandringsprövningen består kommer även förhållandet att präglas av en ojämlikhet. Ett minimikrav är att utlänningen från början är medveten om sin situation innan hon lämnar sitt ursprungsland. Vi föreslår därför att genom de svenska utlandsmyndigheterna ska ge alla sökanden information där ordningen med den uppskjutna invandringsprövningen och dess konsekvenser beskrivs på ett utförligt sätt. Vårt förslag lämnades av regeringen men har inte realiserats. Detta bör nu ske omgående genom ett regeringsuppdrag. Vi ansluter oss också till förslaget som lagts fram av utredningen om samhällsorientering om att även de som har tillfälligt uppehållstillstånd på grund av anknytning ska omfattas av rätten till samhällsinformation och att kommunerna aktivt måste söka upp de personer som har rätt till samhällsinformation. En särskild utredning har vidare fått till uppgift att öka arbetskraftsdeltagandet och påskynda etableringen på arbetsmarknaden för nyanlända utrikes födda kvinnor och anhöriginvandrare. Uppdraget ska redovisas senast (dir. 2011:88). Vi förutsätter att även denna utredning kommer att lägga viktiga förslag som gynnar dessa kvinnors inträde i det svenska samhället och därmed minskar deras beroende av mannen. En person som omfattas av etableringslagstiftningen inkluderas i mottagandet av nyanlända, föräldrar omfattas av etableringslagen med rätt till etableringsplan och barnen får en ordnad introduktion. Slutligen föreslår vi att länsstyrelserna ska samordna insatser för att hjälpa och stödja kvinnor och barn som kommer till på grund av anknytning och som far illa. Vår uppfattning är att det måste till riktade åtgärder till dessa kvinnor och barn för att identifiera och stödja dem. Myndigheter måste samverka för att hjälpa dessa kvinnor och barn. Viktiga aktörer är socialtjänst, kvinnojourer, , , SFI-anordnare, skola, polis och åklagare. Länsstyrelserna bör samordna insatserna. bör vidare ges ett nationellt uppdrag om informationsspridning och metodstöd. i har betydande erfarenhet och kunskaper inom området. bör därför ges det nationella samordningsansvaret. The Inquiry's terms of reference are to explore the incidence of violence, threats and violations affecting foreign women and their children who have been granted permits on the grounds of ties with a person resident in . We are also required to identify the needs of these vulnerable women for initiatives from public authorities and to present proposals on how these initiatives can be improved. In order to understand the problem complex, we have undertaken our own analysis of the legislation. This analysis has revealed a number of shortcomings. We will therefore also present proposals for amendments to the legislation. Our task has its focus on women and the report therefore discusses these women extensively. Our point of departure, however, is that it is mens violence and violations of women and children that are the problem. In our opinion, the issues dealt with in this Inquiry and our proposals for solutions must be based on an understanding of the fact that the violence and control that men exercise against women with temporary permits, like all other violence against women, is a question of womens human rights and a Swedish gender equality problem. Our proposals have been presented on the basis of this fundamental principle. The situation of children accompanying their parents is complex and particularly problematic. It is often claimed by childrens organisations that children are invisible to the authorities and in the legislative process. We consider that this applies particularly to the migration process where there is a deferred examination of immigrant status. Our task, however, is to identify the needs of the affected women, even though the children accompanying their parents are also mentioned in our terms of reference. Our conclusion is that there are very strong grounds for a separate investigation that reviews the situation of children in the context of the two-year rule (the two-year rule means that a citizen outside the EU who comes to because of ties with a person resident in usually only receives a temporary permit during a probationary period of 2 years. See also below, under 'the two-year rule must be investigated further'). Several childrens organisations, such as End Child Prostitution, Child Pornography and Trafficking of Children for Sexual Purposes (ECPAT), the Office of the Childrens Ombudsman and Childrens Rights in Society () have stated that the situation of these children is often considerably more complex than that of other children who are exposed to violence. These children are moved from their previous contexts, with their mothers as the only familiar point, to a foreign country with another language. Our review shows that it sometimes happens that these children are expelled after as long as three years in , even though they have been directly or indirectly exposed to violence during their stay in . From a childrens perspective, this is not acceptable. Children may be affected in several different ways. In the worst case, the child may be the primary target of a man committing crimes of violence or violations, such as sexual abuse. In other cases, both the woman and the child are exposed to violence or violations. Even in cases where the violence is only directed at the mother, the child may be exposed as a witness. The survey – methods Investigating the incidence of violence is a very difficult task, since in a large number of cases, it remains undetected. This applies particularly to women who stay in more temporarily and who may have language difficulties. We have made the assessment that it was pointless to try to reach these women directly via mail or telephone. Such an investigation could be dangerous for these women and give misleading answers. Instead, therefore, we have used questionnaires to find out the extent to which public authorities and womens shelters have had contact with women and children who have temporary permits on the grounds of ties with a person resident in and who have been exposed to violence or violations. The answers to these questionnaires indicate how large the problem is. Apart from this, we have held in-depth interviews with four women who have been affected. The investigation was intended to give an answer to the following four questions: -How many women in with permits on the grounds of ties with persons resident in have been affected by violence? -How many accompanying children do these women have? -What country do these women come from? -To whom are these women referred for support and assistance? The questionnaire was addressed to municipal social services, the authorities, emergency clinics in health and care and non-profit womens and crime-victim shelters in five counties. These were , , , and . This means that the questionnaire covered 92 of 290 municipalities. The meaning of the questionnaire was for the recipient to register, over a three-month period, the number of women that the organisation had met who had come to with temporary permits on the grounds of ties with a man, and where there was reason to assume that they had been exposed to violence. The number of accompanying children, the country of origin and the organisation/authority to which these women were referred for support and assistance were also to be registered. Apart from this, an open question was posed in the questionnaire, in which the recipient was given the opportunity to formulate their own views. The response rate is considered to be around 50 per cent. The results showed that, over the three-month period, the recipients had met a minimum of 491 and a maximum of 1 040 women who had come to on the grounds of ties, and where there was reason to assume that they had been exposed to violence. the Inquiry, the number of women was considerably larger than expected. The fact that there was an assumption of violence for so many women in a limited target group in only five counties in over a three-month period appears remarkable. Calculated for the whole of , and in view of the 50 per cent response rate, this would indicate that several thousand foreign women were involved per year. In addition to this, of course, are the undetected cases – women who have been exposed to violence without having contact with public authorities or shelters. It can be noted that, at present, over 10 000 women come to every year on the grounds of ties with a person resident in . In addition, a minimum of 256 and a maximum of 980 children who have been living with these registered women are involved. Calculated on the same basis as above for the whole of per year, and in view of the response rate, this would also involve thousands of children who live together with women where there is reason to assume that they have been exposed to violence and who have been in touch with public authorities or shelters. The countries from which these vulnerable women come are primarily , , , , , and certain countries in . The women are mainly referred to the social services for advice and support. In the open question, the majority of recipients stated that there were major discrepancies in the statistics in this area, and that it is important for surveys to be made and for methods to be developed to reach this group. The Inquiry held in-depth interviews with four women. These interviews show that the situation of these four women differs, but that there are also certain common denominators. All the women met their husbands in their countries of origin and have said that there they felt that each of them was a loving person. Three of the women lived in stable circumstances in their countries of origin. All of them moved to because of their love for these men. What was felt to be hardest was that the violence was reinforced by the fact that, in different ways, they became isolated and were not in command of the Swedish language or the Swedish culture. The women have described how they always felt that they were in an inferior position and that the husbands had total control over them. This was compounded by their uncertainty about their possibilities of staying in . A return to their country of origin was not an alternative for any of the women; they hoped that their situation would improve. With reference to the violence, all four gave witness to having ended up in hell, and to having been broken down, both mentally and physically. All the women, however, were finally forced to leave their husbands in order to survive. For three of the women interviewed, this meant the risk of being expelled from . At the same time, breaking up was associated with major difficulties, since in three of the four cases, the husbands had deliberately isolated them. In two relationships, the definitive breakup was preceded by several temporary break-ups. Two of the women describe how they were persecuted and harassed after the break-up. All of the women state that they have received a great deal of assistance and support from womens shelters but that assistance from the social services varied, depending on the caseworker. Three of the women expressed disappointment at the Swedish Migration Boards treatment of them, and its processing of their cases. The two-year rule must be investigated further Close relative immigrants make up a growing proportion of those receiving permits in this country. In 2010, a total of 74 000 persons were granted permits in . Nineteen thousand of these received them on the grounds of ties with a person who is resident in . The foreigner who first permanently cohabits abroad with the person with whom they have ties normally receives a permanent permit immediately. However, those foreigners who have not previously cohabited with the person with whom they have ties (what is termed newly established relationships) have to undergo what is termed a deferred examination of their immigrant status. This means that the foreigner first receives a temporary permit for two years. If the relationship continues after two years, the foreigner can apply for a permanent permit on the grounds of continued ties. Making a foreigner live in with a probationary period is an exception to what normally applies for migration to . The main rule in the Aliens Act is that a per- son who is approved for receives a permanent permit. Newly established relationships have increased significantly over the past decade. The most recent Government review of the legislation in 1999 showed that one third of cases based on ties with a person resident in involved newly established relationships. In the past two years, newly established relationships have represented 90 per cent of cases involving ties with a person resident in . This means that the exception with a probationary period affects not just a limited number, but actually the absolute majority of one of our largest immigrant groups. The two-year rule is actually more of a three-year rule. After two years with a temporary permit in , it is possible to apply for a permanent permit on the grounds of ties, if the relationship is enduring. The relationship must, however, also endure when examines the case, which, because of waiting times, is very likely to take place one year later. Confusion over the concept of the two-year rule is considerable. Many foreign women try to stay in their relationships for two years in order to receive a permanent permit since it may be difficult for them to return. The fact that the decisive point in time is the Board's examination is not known by many people. This, of course, makes the rule even more difficult to predict. Research has shown that women immigrants with temporary permits have less access to legal solutions to fight the violence exercised by men against them than other women who are exposed to violence. It has also been documented that the legal regulation of permits for women immigrants is of key importance for women's abilities to protect themselves against violence by leaving violent men. The Aliens Act has also been particularly criticised in research. This criticism is based on the lack of gender equality ambitions to combat men's violence against women in close relationships. The statements in the preparatory documents to the Act are especially criticised, where the focus is put on womens motives for migrating to , while no mention is made of mens views, motives or the fact that problems arise through men using violence. Our conclusion is that the two-year rule must be investigated. In our opinion, it is unreasonable to have legislation that contributes to women staying in violent relationships at the same time as the task of society is to protect women against violence. The legislation means that it is the foreigner, and most often a woman, who alone bears the risk if the relationship ends during the first years, and moreover alone, or together with her child, must bear the consequences of violence. The person with whom an immigrant has ties, usually a man, is, on the other hand, able to make use of the legislation through his superior situation. Our investigations indicate that the number of men who systematically exploit the legislation is by no means small. All in all, gender equality reasons strongly indicate against the two-year rule. The work-first principle also indicates against the rule. In October 2011, the Government appointed an Inquiry under the , tasked with increasing labour force participation and speeding up introduction into the labour market of newly arrived women and close relative immigrants. One reason for the two-year rule is that it allows a generous examination of a permit application on the first occasion when the temporary permit is granted. At that point in time, the authorities examination does not need to be so detailed, since it only involves a temporary permit. The seriousness and sustainability of a relationship are revealed, so to speak, through the probationary period. We believe that it is better for the main weight of this examination to be given to the first occasion, since it reduces human suffering. How such legislation could be designed must, however, be more closely examined. Greater controls to prevent women and children from coming to and becoming the victims of crime So long as the two-year rule exists, the foreigner is placed in a subordinate position in relation to the person with whom they have ties. For women and their accompanying children, this means a greater risk of violence and violations. We believe that it is the task of the legislation to primarily try to identify non-serious persons with in citing ties with foreigners and to prevent them from being given the opportunity to bring women to through their ties with them. There are today a number of men who deliberately make use of the system. We consider that the focus should be more extensively given to the persons citing close ties, by using greater control measures. If the system manages to identify these, greater controls do not need to affect the serious couples who together seek a future in . that Swedish society must more extensively shoulder responsibility for woman and children, as victims of crime, if the public authorities are not able to prevent them from coming to and from being exploited here and exposed to abuse by men living in . Our next proposal is therefore an improved protective rule for these women and children, see below. Our point of departure, however, is that the focus should be on preventing children and women coming to and becoming the victims of crime here. There is a loophole in the legislation, meaning that it is no longer possible for the authorities to reject an application for a permit if there is a risk that the foreigner or the foreigners children may be assumed to be exposed to violence or other serious violation if the foreigner and the person with whom they have ties are married. The general opinion is that this is an unfortunate, but necessary, consequence of the incorporation into legislation of the Family Reunification Directive in 2006. We have made a legal analysis of our own concerning the incorporation of the Family Re- unification Directive. This analysis of the legislative process shows that it is fully possible, in national legislation, to retain the provision on rejecting an application for a permit, even for married persons who are covered by the Family Reunification Directive, if there is a risk of violence/violations. Basically, the Family Reunification Directive is also related to the problem of women receiving permits on the grounds of ties with a person resident in only to a limited extent. The Family Reunification Directive requires that third country citizens be given the right to reunification in if one of the parties is resident here and can be expected to receive a permanent permit. There are also a number of exemptions in the Directive. This means that the Family Reunification Directive in fact only concerns a small proportion of all cases involving ties with a person resident in . , however, chose to voluntarily extend it to all citizens. This means that in its legislative process, distanced itself, to a high degree, from the purpose of the Directive, which was to provide third country families with protection. Instead, the door was opened for persons resident in who had ties with people abroad to have the unconditional right to be reunited with their spouses. Some of these have now proved to be women who suffer significant harm. The result of the incorporation of the Family Reunification Directive into Swedish legislation was that one category of foreigners ended up in a special situation, that is, those who were married when the first application was submitted, but who had not lived together permanently abroad. Since such a relationship will, on the one hand, continue to be classified as a newly established relationship, the foreigner will continue to undergo a deferred examination of their immigrant status. On the other hand, however, the authorities are prevented from making a risk assessment and from examining the seriousness of a relationship. We believe that this is an illogical and unreasonable consequence. If a foreigner is to undergo a deferred examination of their immigrant status, we believe that a minimum requirement should be that the Board is able to make a full prior examination of the application. We believe that the legislator must make a decision here. If this group of married foreigners is to be exposed to a deferred examination of their immigrant status, they must also be protected by an examination of the risk of violence/seriousness of the relationship. The alternative is to also give this group of married foreigners a permanent permit from the beginning. We believe that the risk assessment of violence and violations and the examination of seriousness must also include married people in the future. We consider that this is consistent with the requirements of the Family Reunification Directive. Another possible solution is thus that married foreigners will no longer be included in the group requiring a deferred examination of their immigrant status. If, after a thorough analysis, the Government is of the opposite opinion, there is also a third possibility. Since the Directive only includes third country citizens, one solution would be to let the risk assessment and examination of seriousness include all newly established relationships apart from those cases that concern third country citizens.