Migrant victims of violence against women are in urgent need of further protection, Equality and Human Rights Commission says

Equality and
Human Rights
Commission

Submission to the Council of Europe Group of Experts on Action against Violence against Women and Domestic Violence

UK implementation of the Istanbul Convention: Baseline Evaluation

February 2024

equalityhumanrights.com

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Chapter 3: Protection

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Protection of migrant victims

Under Articles 60 and 61 of the Convention, the UK government has obligations to protect migrant VAWG victims. These obligations include gender-sensitive treatment, which means considering the particular experiences of men and women, and respect for the principle of non-refoulement, which requires that a country receiving asylum seekers does not return them to a country where they would be at risk of harm.

In the year to September 2023, 68,600 asylum applications were made in relation to men and 24,502 to women. [1] We are concerned about the quality of consideration of the impact of immigration policies on individuals with protected characteristics, a point also made by the WEC. [2] We are particularly concerned about the potential impact on women, including pregnant women and those who have experienced trauma, such as VAWG, and we are engaging with the Home Office on this.

In asylum decisions, UK law provides for gender-sensitive interpretations of each of the grounds for persecution set out in the 1951 UN Convention relating to the Status of Refugees ('the Refugee Convention'). [3] The protection this may provide for victims of VAWG seeking asylum will, however, be further restricted by the Illegal Migration Act (IMA) when it comes fully into force.

The UK government passed the IMA in July 2023. The IMA would severely restrict the right to seek asylum for those arriving via an irregular route who have not come directly from a country where their life and freedom were threatened by preventing them from making a protection claim, and most human rights claims, in the UK. It risks placing the UK in breach of its obligations under the UN Refugee Convention and ECHR and putting many people arriving in the UK via irregular routes, including women and girls fleeing persecution and/or trafficked for sexual exploitation, at significant risk of harm.

The broad detention provisions in the IMA are particularly concerning. It provides that a person may be detained for as long as is 'reasonably necessary' (for the purposes of examination or removal) in the opinion of the Secretary of State for the Home Department and restricts challenges to detention within the first 28 days. It overturns a previous ban on the detention of children in most circumstances.

Detention provisions create risks for the prolonged detention of victims of VAWG. The particular risk to these women was highlighted by the 2016 Shaw review, an independent review commissioned by the Home Office, which recommended a presumption against victims of VAWG being held in immigration detention, in line with UN High Commissioner for Refugees (UNHCR) guidance. [4] Contrary to this recommendation, the previous ban on the detention of girls, which may include VAWG victims, has been removed. This places girls, including those who have experienced VAWG, at increased risk of harm to their physical and mental health because of detention. [5]

The IMA also removed, for those covered by this Act, most protections for victims of trafficking in the UK, which had previously been established through the Modern Slavery Act 2015. In 2022, 2,090 women and girls were referred to the National Referral Mechanism (NRM) in relation to sexual exploitation. [6] Under new rules, they may face removal before being able to make a claim or have their claim investigated, placing them at high risk of being returned to harm and facing repeat exploitation. This is likely to violate the UK's obligations under the:

• Refuge Convention
• Council of Europe Convention on Action against Human Trafficking
• ECHR
• Istanbul Convention, including Article 18(1) to prevent victims of VAWG facing further acts of violence; and its obligations under Article 61 in relation to non-refoulement [7]

The IMA also contains provisions that risk breaching the ECHR, and the principle of non-refoulement. [8] The EHRC has advised the UK government that consideration of individuals' status must be made to ensure that those with a valid protection application are not returned. The EHRC has also raised concerns about the human rights implications of designating certain states as safe for removal or return. [9] For example, Albania is designated a safe country under Schedule 1 to the IMA, despite recent evidence showing that some people from Albania, including women and girls trafficked for sexual exploitation, have had valid protection claims and been granted asylum in the UK on that basis. [10]

In April 2022, the UK government signed a Memorandum of Understanding with Rwanda allowing for the removal of people to Rwanda before consideration of their asylum claim in the UK. The EHRC has raised concerns about the policy's compliance with international human rights law, and particular risks in relation to removing people from certain groups, including pregnant women, disabled people, people with mental health conditions or experiencing trauma, and LGBT people. [11] In June 2023 the Court of Appeal ruled that Rwanda is not a 'safe third country' and the policy of deporting asylum seekers there is unlawful, [12] a ruling that was unanimously upheld by the Supreme Court on appeal. [13]

In response, the UK government has signed a Treaty with Rwanda aiming to address concerns expressed in that judgment. [14] In December 2023 the UK government put forward new legislation stating that Rwanda is safe; the Safety of Rwanda (Asylum and Immigration) Bill. [15] The Secretary of State for the Home Office was unable to confirm its compatibility with the ECHR. [16] Under the bill, courts will not be able to consider whether Rwanda is a safe country for people to be removed to, in the way the Supreme Court recently did, regardless of any evidence, except under few exceptions. These exceptions do not allow courts to consider the risk of an individual being sent from Rwanda to another country where they face torture or persecution, such as VAWG, a key risk identified by the Supreme Court in its recent judgement. [17] The bill also prevents sections of the Human Rights Act from being applied to decisions that are based on the duty to treat Rwanda as safe, undermining the universality of human rights and leaving women who are subject to the bill with reduced human rights protections and access to remedy. The bill risks breaching the UK's legal obligations under ECHR and other international human rights treaties, including the Istanbul Convention, by subjecting women to the risk of refoulement and to VAWG. [18]

Recommendations

The UK government should:

• ensure that it complies with its international legal obligations to protect human rights and the right to seek asylum when implementing policies under the IMA

• ensure full consideration of the risks of refoulement and of VAWG in any removal decisions, including to Rwanda, and avoid removing individuals where they may face such violations

• reinstate limits on the detention of children and ensure women survivors of rape and other forms of sexual or gender-based violence are not subject to immigration detention

• ensure potential victims of trafficking can have their cases investigated and considered by the NRM before being removed from the UK, to prevent the risk of repeat exploitation, in particular of women and girls. Guidance developed under Section 22(6) of the act should be drafted in line with this

• improve provision for safe, regular routes to the UK for those seeking asylum, including to ensure adequate protection for VAWG victims. Steps should be taken as a matter of priority alongside implementation of any provisions relating to the IMA

• ensure decisions on removal are in line with its obligations regarding non-refoulement under the Refugee Convention, ECHR, and Istanbul Convention, including for VAWG victims

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Chapter 4: Prosecution

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Sharing of migrant data

The Istanbul Convention includes a non-discrimination clause which prohibits discrimination based on migration or refugee status in relation to the implementation of the Convention. This includes Article 56 on the need for their rights and interests to be protected during investigations and judicial proceedings.

Under the Immigration and Asylum Act 1999, when victims of VAWG report crime to the police, their personal data can be shared with the Home Office for immigration enforcement, including deportation. The UK government has justified the arrangement because 'sharing information can help victims to clarify their immigration status and prevent further abuse'. [19]

The Safe to Share report, published in December 2020 by HMICFRS, the College of Policing and the Independent Office for Police Conduct, concluded that information sharing deters vulnerable migrant victims from reporting crime, including domestic abuse, causing 'significant harm to the public interest'. [20] It noted that threats of immigration enforcement can be used by domestic abuse perpetrators as a form of coercive control.

Migrant data sharing takes place across England and Wales. Data obtained from the Home Office by the Domestic Abuse Commissioner, and published in November 2023, found that every single police force in England and Wales has shared the domestic abuse victim data with Immigration Enforcement over a three-year period. [21]

In response to the report, the UK government committed to develop mitigations for the deterrent effect of data sharing. Among other things, this would include no immigration enforcement action being taken against the victim while proceedings were ongoing. [22] We do not think this will give victims of VAWG confidence to report to police, or prevent threats being used as a tool of coercive control by perpetrators. This is because immigration enforcement action could still result from reporting their experiences of VAWG to the police, even if there were a delay in this action taking place. The Domestic Abuse Commissioner has found that a fear of this happening prevents reporting and enables exploitation by coercive and controlling perpetrators. [23]

Our view is that the harm to VAWG victims, and to the public interest, will only be satisfactorily addressed by ending data sharing for the purposes of immigration enforcement. We consider this essential to ensure migrant victims are sufficiently protected and that the UK is compliant with its Istanbul Convention obligations. This is a view shared by a coalition of 58 organisations led by the Latin American Women's Rights Service, the Domestic Abuse Commissioner, the Victims' Commissioner for England and Wales, the London Victims' Commissioner, the Justice Select Committee and the WEC. [24]

In Wales, the Senedd Equality and Social Justice Committee's inquiry into the needs of migrant women similarly recommended that the Welsh Government establish a 'firewall' which restricts the sharing of data between agencies on people who seek support for sexual and gender-based violence. [25] The Welsh Government accepted this recommendation in principle but noted that it cannot independently establish a data firewall due to some data organisations being reserved. [26] The Welsh Government committed to working with partners to consider possible options.

Recommendations

The UK and Welsh governments should, where relevant:

• end the sharing of an individual's personal data for the purposes of immigration enforcement where the data was collected in the process of the person accessing essential public services (including education, healthcare and policing), in line with its obligations under international law

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Chapter 5: Reservations

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Reservation to Article 59

The Istanbul Convention's non-discrimination clause is clear: victims of VAWG must be protected regardless of their migration or refugee status. In line with this principle, Article 59 of the Convention requires that states party to the treaty should, in certain cases, provide victims of VAWG with an autonomous residence permit where their residence status depends upon their spouse or partner. The drafters of the Convention considered it necessary to ensure that the risk of losing their residence status should not create difficulty for victims leaving an abusive relationship. [27]

The UK government's Article 59 reservation means that VAWG victims in the UK do not have full protection if they feel unable to leave an abusive relationship due to concerns about the impact on their residence status. Indeed, there is evidence that such concerns may be used as a tool for coercive control by perpetrators of domestic abuse. [28]

The UK government does run a scheme that allows victims of domestic abuse with a spousal/partner visa to apply for indefinite leave to remain. [29] However, women on other visa types are not eligible for this scheme, even though their immigration status may still be dependent on an abusive partner. For example, women who have leave to remain as a dependent of a partner on a student visa would be excluded.

In our view, the UK's reservation to Article 59 means that victims of VAWG whose residence status depends upon their spouse or partner do not enjoy fully equal protection in the UK, undermining the principle of non-discrimination in Article 4.

The UK government previously stated that its Article 59 reservation is under review pending consideration of the results of the Support for Migrant Victims Scheme pilot that was published in August 2023, [30] as well as wider policy considerations. As discussed in Chapter 3 on protection, the Support for Migrant Victims Scheme (initially a one-year pilot that has since been extended) provides support to migrant victims of VAWG with NRPF. However, there is no clear alignment between the scheme and the requirements of Article 59, as the scheme does not, and is not able to, provide victims with autonomous residence permits. This was acknowledged by Lord Sharpe of Epsom, Parliamentary Under Secretary of State for the Home Office, during a debate in the House of Lords, [31] leading to concern that the government's explanation for the reservation is insufficient.

Overall, we consider that there is no adequate justification for the UK government maintaining its reservation to Article 59 and that there are significant risks arising from this gap in protection for migrant victims of abuse.

Recommendations

The UK government should:

• remove its reservation to Article 59 as a matter of urgency to ensure effective protection for migrant victims and to ensure compliance with its legal obligations for non-discrimination under Article 4

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[31] UK Parliament Hansard (2022), 'House of Lords Grand Committee debate: Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence', column 130GC [accessed: 16 October 2023].