New briefing aims to raise awareness of the issue among immigration practitioners working with victims of domestic abuse
Rights of Women, a charity that provides legal advice to women, has published a valuable new briefing for legal practitioners working on immigration applications involving domestic abuse.
The briefing, which was reviewed by Priya Solanki of One Pump Court Chambers, aims to raise awareness among practitioners about the potential significance of counter allegations in domestic abuse cases.
A copy of the 5-page briefing is available here on the Immigration Law Practitioners' Association (ILPA) website.
Rights of Women says that it was prompted to address the issue and provide guidance to practitioners because the Home Office has reportedly refused several applications for indefinite leave to remain as a victim of domestic abuse where counter allegations were involved.
The briefing explains: "Counter allegations are claims made against a victim of domestic abuse by the perpetrator of the abuse – claiming that the victim is in fact the perpetrator of domestic abuse and / or has otherwise perpetrated abusive behaviour in the context of the relationship. Counter allegations might be made to the Home Office direct or be made to the police, social services, or other state officials or in the context of Family Court proceedings or otherwise."
The impact of counter allegations on immigration applications by victims of domestic abuse is significant. Applications made under Appendix Victim of Domestic Abuse (Appendix VDA) have been refused where counter allegations were present. Reasons for refusal have included the applicant not being the 'sole' victim of domestic abuse, the relationship being deemed 'mutually abusive' or 'volatile', and the Home Office adopting the position that domestic violence rules are not intended to benefit individuals who have likely been perpetrators of domestic abuse themselves.
Rights of Women notes that immigration rules relating to victims of domestic abuse do not explicitly address counter allegations. However, the related guidance allows caseworkers to consider disregarding a counter claim if there is third-party corroborating evidence supporting the applicant's account. In cases with competing accounts and no supporting evidence from the applicant, caseworkers must weigh the evidence and make a judgment based on the balance of probabilities.
Practitioners are reminded of R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33, where the Court held that any requirement leading to refusal of leave to enter or remain qualifies as a rule under section 3(2) of the Immigration Act 1971 and must be laid before Parliament. Since guidance is not subject to this process, refusals based on guidance rather than formal rules may be open to challenge.
The briefing provides helpful advice on how to address any counter allegations when preparing an application. It emphasises: "Given applications involving counter allegations are being refused with reference to the counter allegations, it is essential to establish while preparing an application whether there are, or might be, any counter allegations in the context of any application by a victim of domestic abuse. You should always ask your client whether they are aware of any counter allegations and consider any evidence carefully for reference to any counter allegations."
If counter allegations are present, Rights of Women says it is crucial to take the client's instructions on the allegations and consider any available evidence. Practitioners should carefully decide whether to address counter allegations in the initial application, considering the potential impact on the client's case. The Home Office may obtain police records directly, which should be taken into account when deciding whether to address counter allegations.
In cases where the client denies the counter allegations, practitioners should consider including this information in any statement or cover letter, along with evidence of the domestic abuse suffered by the client. If a violence against women and girls (VAWG) professional or another domestic abuse professional is involved, their input can be valuable in addressing counter allegations. In cases where the client admits the counter allegations, it is important to take detailed instructions on the context of the events and consider obtaining expert evidence to support the client's case.
Rights of Women is actively working on issues related to counter allegations in immigration applications by victims of domestic abuse. They invite practitioners to share their experiences and are available to discuss individual cases, particularly those involving potential judicial review challenges. Practitioners seeking legal aid funding for expert reports on counter allegations are encouraged to contact Rights of Women for assistance. Contact details are provided in the briefing.