Updated House of Commons Library report on immigration provisions for victims of domestic violence

New from the House of Commons Library is an updated report on immigration provisions for victims of domestic violence.

As the report notes, people with temporary immigration status who suffer domestic violence are often particularly vulnerable.

You can read the full text of the report below or you can access the original report here.

 

HOUSE OF COMMONS LIBRARY

Immigration provisions for victims of domestic violence

Standard Note: SN/HA/04644

Last updated: 29 November 2013

Author: Melanie Gower

Section Home Affairs Section

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This information is provided to Members of Parliament in support of their parliamentary duties and is not intended to address the specific circumstances of any particular individual. It should not be relied upon as being up to date; the law or policies may have changed since it was last updated; and it should not be relied upon as legal or professional advice or as a substitute for it. A suitably qualified professional should be consulted if specific advice or information is required.

This information is provided subject to our general terms and conditions which are available online or may be provided on request in hard copy. Authors are available to discuss the content of this briefing with Members and their staff, but not with the general public.

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People with temporary immigration status who suffer domestic violence are often particularly vulnerable:

• their visa conditions do not allow them to access specified public funds; and

• their immigration status may make them hesitant to take action against their partners, in case they lose their right to remain in the UK.

The Immigration Rules allow for a victim of domestic violence who is in the UK as the spouse/partner of a British or 'settled' person to apply to stay permanently, even though the relationship is no longer subsisting. These rules do not apply to EEA nationals or their family members, persons who have limited leave as the spouse of a temporary migrant, or asylum seekers or their family members.

Furthermore, the 'no recourse to public funds' rule prevents migrant victims of domestic violence from accessing housing or welfare benefits, until they have an immigration status which entitles them to public funds (such as Indefinite Leave to Remain).

In the past, the restrictions on access to public funds caused difficulties for destitute migrant spouses with an application pending under the domestic violence rules, because few refuges will accept people without recourse to public funds. However since April 2012 a new policy concession has been in effect, which enables migrant spouses to apply for a temporary immigration status which gives access to public funds whilst they are waiting for a decision on their application for indefinite leave under the domestic violence rules.

The concession was welcomed by campaigning organisations, although they continue to raise concerns about the lack of protection available to other categories of migrant, and other aspects of government policy affecting migrant victims of domestic violence.

Contents
1 Migrant partners of British citizens or permanent residents
1.1 Applying for indefinite leave under the domestic violence rules
1.2 Overcoming the 'No recourse to public funds' condition
2 EEA/Swiss Nationals and their family members
3 Partners of temporary migrants
4 Asylum seekers and refugees and their family members
5 Calls for further Government action
6 Sources of further information

1 Migrant partners of British citizens or permanent residents

1.1 Applying for indefinite leave under the domestic violence rules

Non-European Economic Area (EEA) or Swiss nationals who come to the UK as the partner of a British citizen or person permanently settled in the UK are initially given temporary permission to stay. [1] After completing a five year 'probationary period' (which is split into two blocks of temporary leave), if the relationship is still subsisting, the migrant partner can apply for permanent settlement (also known as 'Indefinite Leave to Remain - ILR').

If the relationship breaks down during the probationary period due to domestic violence the Immigration Rules allow the migrant partner to apply to stay permanently in the UK, even though the relationship is no longer subsisting. [2] If they are destitute, the applicant can be exempted from the application fee for ILR. They also do not have to show that they can maintain and accommodate themselves without recourse to public funds, or that they have sufficient knowledge of language and life in the UK (unlike other ILR applicants).

A page on the UK Border Agency (UKBA) website summarises the criteria for granting leave to remain to victims of domestic violence and links to detailed guidance about how to apply. [3] It also provides contact details for organisations providing assistance to victims of domestic violence. Home Office detailed guidance to officials is also publicly available. [4]

The requirement to be free from unspent criminal convictions

On 6 April 2011 a mandatory requirement was introduced that persons applying for ILR must be free from unspent criminal convictions. [5] Organisations in the immigration and domestic violence sectors raised concerns that the requirement might deter victims of domestic violence from trying to leave abusive situations. [6] They argued that victims of domestic violence can be coerced by abusive partners into criminal behaviour, and cited examples of women acquiring criminal convictions after acting in self-defence and of abusive partners making false allegations of criminal behaviour against their partners. [7]

Home Office policy guidance initially gave its caseworkers scope to exercise their discretion "in truly exceptional cases" to applicants who could not satisfy the unspent criminal conviction requirement, by granting Discretionary (temporary) Leave or ILR outside the Rules, if the unspent convictions related to an applicant's claim to be a victim of domestic violence or the offence was very minor and there were compassionate and compelling circumstances. It stated that applicants who had an unspent criminal conviction related to a serious offence or unrelated to their claim as a victim of domestic violence must be refused under the rules, although they could be granted leave outside the rules. [8]

The unspent conviction requirement was removed for domestic violence cases with effect from 13 December 2012, following further changes to the Immigration Rules. However, applicants are still subject to 'general grounds for refusal' and 'suitability' criteria, some of which relate to criminal behaviour. [9]

1.2 Overcoming the 'No recourse to public funds' condition

Although migrant partners of British or settled persons can apply for ILR before the end of their probationary period if the relationship breaks down due to domestic violence, the conditions attached to their temporary leave as a partner include that they do not have recourse to specified public funds, including mainstream housing support (although they are allowed to work).

In the past, the 'no recourse to public funds' rule has made it difficult for abused migrant partners with temporary leave to remain to access support whilst their application for indefinite leave is pending, since very few refuges will accept persons without recourse to public funds.

Some forms of social assistance are outside the no recourse to public funds rule. Under various community care provisions local authorities can provide help to those who have needs over and above those arising from destitution, which could include those who are subject to domestic violence. [10] However, interpretation of how those needs should be met varies. Where children are involved, local authorities have a statutory power under section 17 of the Children Act 1989 to make appropriate provision for children to ensure that their needs are being met (e.g. being adequately fed and housed and cared for), but this too is subject to interpretation. [11]

For a long time, governments resisted demands for the no recourse to public funds rule to be lifted for migrant partners who suffer domestic violence. [12] Then, in late 2009, a temporary pilot scheme coordinated by Eaves Housing for Women was launched as part of the Government's strategy for ending violence against women and girls. [13] The scheme, known as the Sojourner Project, funded refuges to provide accommodation and living support for up to 40 days (later extended to 50 days) to migrant partners applying for ILR under the domestic violence rules. [14] Those granted ILR would then be able to access to public funds. Refused applicants could appeal against the refusal decision, but the pilot did not provide funding to cover this period.

The pilot was initially due to run until March 2010, but it was extended three times. [15] On 8 March 2011 the Government published an Action Plan to accompany its 'vision' for ending violence against women and girls. [16] It included a commitment to establish by April 2012 a long-term funding solution for migrant partners who become victims of domestic violence. [17] According to an April 2012 UKBA press release, 1,522 individuals were assisted over the lifetime of the Sojourner Project. [18]

April 2012: the Destitution Domestic Violence Concession is launched

The Sojourner Project was replaced by a new policy for supporting migrant partner victims of domestic violence (the 'Destitution Domestic Violence Concession') on 1 April 2012.

The Concession enables migrant partners who intend to apply for ILR under the domestic violence rules and need access to public funds to first apply for a variation in their immigration status to UK Visas and Immigration (UKVI - one of the UKBA's successors). Those found to be eligible are granted temporary leave to remain in the UK for three months, with access to public funds. This status allows them to apply to the Department for Work and Pensions for financial assistance whilst they apply to UKVI under the domestic violence rules. Applicants who do not need financial assistance can apply immediately to UKVI for indefinite leave. More detailed information about the arrangements is on the UKBA website.

The Concession was welcomed by the Campaign to Abolish No Recourse to Public Funds, a coalition of 27 women's and human rights organisations. [19]

2 EEA/Swiss Nationals and their family members

European Economic Area (EEA) and Swiss nationals who are exercising 'free movement' rights in the UK cannot apply under the domestic violence rules. The rights of EEA nationals (and their family members) to come to the UK derive from European law rather than UK immigration law. [20]

Although all EEA nationals can exercise free movement rights, only certain categories of person will have, under European law, certain guaranteed rights attached to their residence in the host country. This is what is meant by EEA nationals having a "right to reside". European Directive 2004/38/EC "on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States" sets out who has a right to reside when moving within the EU, and the circumstances in which Member States can restrict those rights. This Directive is often referred to as the 'Free Movement of Persons', 'Citizens' or 'Rights of Residence' Directive. Directive 2004/38/EC was transposed into UK legislation by the Immigration (European Economic Area) Regulations 2006 ('the 2006 Regulations'). [21]

Put briefly, EEA nationals and their family members (including spouses, civil partners and unmarried 'durable' partners) have an initial right to reside in another Member State for up to three months, regardless of the purpose of the visit, as long as they do not become an unreasonable burden on the social assistance system of the Member State. People who have a right to reside solely on the basis of the three-month right of residence will not satisfy the UK's benefits eligibility requirements. Those wishing to stay for longer than three months must be exercising Treaty rights as a worker; self-employed person; job-seeker; self-sufficient person; student; or a family member accompanying or joining an EEA national who satisfies one of the above criteria.

EEA nationals and their family members continue to have a right of residence whilst they meet the conditions specified in the Free Movement Directive, and can apply for residence documentation as proof of their right to reside. A "right of permanent residence" is acquired after five continuous years' residence in the host Member State. [22]

The Free Movement Directive allows for family members of EEA nationals exercising Treaty rights to retain a right to reside in the event of divorce, annulment of marriage or termination of civil partnership, where the relationship breaks down due to domestic violence. [23] This is also reflected in the 2006 Regulations (as amended). [24] However, the regulations do not apply in circumstances where divorce or termination of the partnership has not yet occurred. Nor do the provisions in the Directive and 2006 Regulations apply to unmarried partners of EEA nationals (unlike the UK's Immigration Rules on domestic violence).

It has been argued that the UK's failure to enable unmarried family members of EEA nationals to retain their rights of residence in the event of domestic violence breaches its obligations to provide for equal treatment of EEA and British citizens and non-discrimination based on nationality, because unmarried partners of British citizens can apply for ILR under the domestic violence Immigration Rules. It has also been argued that the exclusion of unmarried partners of EEA nationals from protections is disproportionate to the EU's objectives, and is a violation of unmarried partners' fundamental rights. [25]

EEA family members who might be eligible to retain a right to reside in the event of domestic violence can also encounter practical difficulties in retaining this status and accessing public funds. For example, there is no general entitlement to benefits for people coming to the UK under EU free movement laws, and economically inactive people may face restrictions on their entitlement to benefit. In May 2004 the legislation governing entitlement to certain social security benefits and housing assistance was amended so that a person cannot be 'habitually resident' (an important criteria for assessing eligibility) unless they have the 'right to reside'. [26] In order to demonstrate their retained right to reside, the EEA family member might need to provide evidence that their estranged EEA national partner has a right to reside in the UK.

There have been calls for the Government to introduce arrangements which would apply to EEA nationals and their family members similar to the Destitution Domestic Violence Concession, in light of the difficulties that they can experience in retaining and evidencing an ongoing 'right to reside' and accessing public funds following the breakdown of their relationship. [27]

The right to reside test is extremely complicated; there are a number of exceptions to the general rules and the case law is constantly evolving. Anyone experiencing problems claiming benefits because of the right to reside test should seek specialist advice.

3 Partners of temporary migrants

Persons who have limited leave to remain in the UK as the partner of a temporary migrant (e.g. the dependant of a non-EEA worker or student) cannot apply for ILR on the grounds that the relationship has ended due to domestic violence. Being dependent on their spouse or partner for their immigration status they are as likely (if not more so) to be put off from seeking help.

General information published on the UKBA website states that dependants of temporary migrants are expected to leave the UK if their relationship breaks down, because they will no longer satisfy the eligibility conditions for their visa. [28]

Labour proposed during debate on the Immigration Bill in November 2013 that partners of temporary migrants should be granted three months' leave to remain in the event that the relationship ends due to domestic violence, in order to allow time for "rest and reflection" and to prevent them from immediately lapsing into illegal status as a result of their changed circumstances. [29]

The Minister for Immigration, Mark Harper, argued against the proposal (which was subsequently withdrawn). In doing so, he briefly explained the rationale for not giving partners of temporary migrants the same protections as partners of British/settled sponsors:

We want to ensure that a victim of domestic violence has the full protection of the criminal and civil law, and of law enforcement agencies, regardless of their immigration status. However, that does not mean that all victims of domestic violence should be able to stay in the UK.

(...)

It is not our intention to cover somebody who is here on a temporary basis because of a relationship with someone who does not have the right to permanent residence. They are in a different position from someone who comes to the United Kingdom with a reasonable expectation of making a permanent life here. If their relationship breaks down for whatever reason, then they should expect to leave the United Kingdom. There is of course no bar to their applying to come to the United Kingdom in their own right, either as a student, under tier 2 as a worker, or under another provision of the rules. However, they did not come to the United Kingdom with the expectation of staying here permanently, and that is not a reasonable expectation. They came here on a temporary basis, which is what the rules currently deliver. [30]

4 Asylum seekers and refugees and their family members

Instead of having access to mainstream welfare benefits, destitute asylum seekers can apply for asylum support (accommodation and/or financial assistance) from the Home Office. [31] Information about how reports of domestic violence involving supported asylum seekers are dealt with, including how requests for alternative accommodation are handled, can be found in the Home Office's asylum support policy bulletin 70. [32]

The UKBA website includes some information for asylum seekers who are subject to domestic violence. An advice leaflet for asylum seekers experiencing domestic abuse is available from the Refugee Council's multilingual website. [33] It notes that dependants to an asylum claim might be able to claim asylum and continue receiving asylum support in their own right, depending on the circumstances.

Partners of persons who have been granted temporary leave to remain (Humanitarian Protection) are not eligible to apply for ILR under the domestic violence rules. Neither are 'post-flight' spouses of persons granted Refugee status. [34]

5 Calls for further Government action

Although it has welcomed the Destitution Domestic Violence Concession for migrant spouses of British and settled persons, the Campaign to Abolish No Recourse to Public Funds continues to voice concerns about the Concession's limitations, as well as the lack of protections offered to other categories of migrant and the impact of broader immigration and legal aid policies on migrant victims of domestic violence:

(…) there are many other vulnerable victims who remain without a safety net. These include women in the UK on other visas, overstayers, and overseas domestic workers, who experience gender based violence or abuse and exploitation by their employers. Women who have been trafficked into the country are also not adequately protected. These women are still forced to make a stark choice between staying within an abusive relationship, and risking their lives, and that of their children, and leaving, and facing destitution, and in many cases, also deportation.

Monitoring data collected by the Campaign from some key agencies from across the UK, has found that during the period 1 November 2012 – 31 January 2013, in a sample of 242 women (with 176 children), a shocking 64% did not receive or were not eligible for help under the DDV concession and consequently, were either dependant on limited support elsewhere or destitute.

The data also showed that for those who did receive help under the DDV concession, there was an average of 3 weeks delay in benefit payments, which increased the vulnerability of women and children.

In this context, the Campaign is also dismayed by the introduction of cuts in legal aid for most people with immigration problems, and an increase in the 'probationary period' for spousal visas from two to five years. These changes undermine women's ability to escape abuse and gain access to safety and support.

The Campaign calls for the Home Office and other relevant bodies to:

1. Ensure effective implementation of the DDV concession. This includes:

• Fast tracking applicants through the benefit system

• Tracking of applicants by the Department of Works and Pensions (DWP) for monitoring purposes

• Training of professionals, including officials within the Job Centre Plus (JCP), DWP, the UKBA and local authority housing departments on the new scheme, delivered in conjunction with campaign members

• Applicants having access to telephone, rather than online-only application processes, in the UKBA and JCP/DWP.

• Professional interpretation services are provided by the Home Office and JCP for applicants who need this service

• Women's organisations, particularly specialist BME women's services, are adequately funded to provide advice and assistance to enable victims to access benefits and housing under the new scheme.

2. Provide benefits and public housing, and the right to permanent settlement, for all victims of gender based violence and exploitation. In the interim, a Home Office pilot should be established similar to the former Sojourner Project (which provided limited housing and subsistence costs for domestic violence victims on spousal visas from 2009-12).

3. Provide legal aid for all victims of gender based violence and exploitation with immigration problems.

4. Abolish the probationary period as it keeps victims in vulnerable and abusive situations for prolonged periods. [35]

6 Sources of further information

The No Recourse to Public Funds (NRPF) Network supports and represents local authorities on issues relating to people with "no recourse to public funds". It has produced several guides for local authorities about how to assess whether a person may be eligible for support.

The AIRE Centre is a specialist law centre which provides advice on persons' rights under European law. It operates an advice project for victims of domestic violence.

Women's Aid and Southall Black Sisters and are amongst many groups who have been campaigning on these issues for some time - sometimes under the banner of the 'Campaign to Abolish No Recourse to Public Funds'.

© Parliamentary copyright

(End)

[1] EEA - EU Member States plus Iceland, Norway and Liechtenstein.

[2] Immigration Rules (HC 395 of 1993-4 as amended). Applications are either considered under paragraphs 289A-C, or Appendix FM section DVILR (depending on the date the migrant entered the UK). Previously similar provisions were applied through a policy concession not reflected the Immigration Rules.

[3] UKBA website, 'While you are in the UK/Domestic violence' (undated; accessed on 26 November 2013)

[4] Home Office, Modernised Guidance, Victims of Domestic Violence, v.10.0 (accessed on 26 November 2013 )

[5] HC 863 of 2010-12 as amended by HC 908 of 2010-12

[6] Migrants' Rights Network blog, 'New immigration rules turn back the clock on domestic violence', 8 April 2011

[7] ILPA press release, 'Happy Mothers' Day? Domestic violence: UK Border Agency's new immigration rules wholly at odds with Home Office violence against women strategy', 1 April 2011

[8] UKBA, Modernised Guidance, Other cross-cutting information - Criminality requirement for settlement, v 3.0 (accessed on 11 April 2012)

[9] Discussed in Home Office, Modernised Guidance, Victims of Domestic Violence v10.0 (accessed on 26 November 2013)

[10] e.g. s21 of the National Assistance Act 1948

[11] See for example No Recourse to Public Funds Network, Practice Guidance for Local Authorities Assessing and Supporting Children and Families and former Looked-After Children who have No Recourse to Public Funds, December 2011

[12] See, for example, commentary in Amnesty International and Southall Black Sisters, No Recourse, No Safety, March 2008

[13] HM Government, Together We Can End Violence Against Women and Girls: a Strategy, 25 November 2009

[14] HC Deb 30 March 2011 c370W

[15] E.g. Home Office website news, 'Pilot scheme for domestic violence victims to continue', 16 July 2010

[16] HM Government, Call to End Violence Against Women and Girls, 25 November 2010

[17] HM Government, Call to End Violence Against Women and Girls: Action Plan, March 2011

[18] UKBA news release, 'Support for victims of domestic violence extended', 2 April 2012

[19] Campaign to Abolish No Recourse to Public Funds press release, 'Home Office concession for destitute victims of domestic violence and a call to save the lives of all women and children', 30 March 2012

[20] EEA – European Economic Area (EU Member States plus Iceland, Norway and Liechtenstein). Swiss nationals have broadly similar rights.

[21] SI 2006/1003 (as amended)

[22] Or sooner in certain specified circumstances - for example, a worker who reaches retirement age or becomes permanently incapacitated: Directive 2004/38/EC, Article 17

[23] Directive 2004/38/EC, Article 13(20(c)

[24] Reg 10(5)(d)(iv)

[25] Freemovement blog, 'EU law is unequal for unmarried victims of domestic violence', 4 November 2013 (accessed on 26 November 2013)

[26] See Library standard note SN/SP/416 The Habitual Residence Test

[27] AIRE Centre, "AIRE-led Coalition urges UKBA to address domestic violence", 8 October 2012

[28] UKBA website, 'While you are in the UK/If your relationship ends' (undated; accessed on 26 November 2013)

[29] PBC Deb 19 November 2013 c373

[30] PBC Deb 19 November 2013 c373

[31] Part VI, Immigration and Asylum Act 1999

[32] UKBA, Policy Bulletin 70, version 3.0 last updated 15 October 2009 (accessed on 11 April 2012)

[33] Asylum Support Partnership, Domestic abuse – do you need help?, November 2012

[34] Home Office, Modernised Guidance, Victims of Domestic Violence, v.10.0 (accessed on 26 November 2013)

[35] Campaign to Abolish No Recourse to Public Funds, Home Office Concession for Destitute Victims of Domestic Violence and a Call to Save the Lives of All Women and Children, 25 November 2013