Precarious Immigration Status and Domestic Abuse Part II

In Part II Erin Gallagher looks at the UK legislation that tackles violence against women and argues that it does not go far enough to protect those with precarious immigration status. You can read Part I here .

The Domestic Violence Rule

Section DVILR (the domestic violence rule) was incorporated into the Immigration Rules in 2002 in an attempt to aid victims of domestic violence during the probationary period (the first-five years after initial Leave to Remain). This rule, found in Appendix FM , allows victims to apply for ILR at any time during the probationary period. Individuals should be entitled to ILR if they are in the UK on a spousal or partner visa, and can provide evidence that the relationship has broken down due to domestic violence. This means it does not have to be their partner that has perpetrated the abuse, but the abuse does have to have caused the dissolution of the relationship – even if someone else is responsible for the abuse, it still must have led to the breakdown of the relationship.

Until recently, this rule excluded the spouses of refugees with limited leave to remain. The case of A v Secretary of State for the Home Department[1] concerned a Ugandan national whose husband was granted refugee status with limited leave to remain. She joined him with her family under a family reunion visa but soon separated as he became abusive. She was denied ILR as a victim of domestic violence as she did not arrive in the UK as the spouse of someone settled in Britain due to her partner’s limited leave. A challenged this and the case reached the Inner House of the Court of Session, where Lady Dorrian aptly pointed out that the Secretary of State had made an oversight; the introduction of the 5 year leave to remain period for refugees was introduced in 2005, 3 years after the introduction of the domestic violence rule. Before the introduction of the 5 year limited leave, refugees would be classed as ‘settled’ in Britain. Thus, the court held that the distinction between the spouses of refugees with limited leave and indefinite leave occurred ‘effectively by oversight’ thus was unjustifiable.

This decision led to the extension of the scope of the Domestic Violence Rule, so that it now includes spouses or partners of a person with refugee leave. A significant amount of time did pass between the decision and its implementation in the Immigration Rules, but as of January 2019 the changes to the rules have come into effect.

Despite this significant and welcome extension, this path to escaping an abusive environment through the domestic violence rule remains exclusionary; it is still only available to those on spousal or partner visas. Thus, those who entered the UK with other visas (such as work or student visas) and married afterwards, asylum seekers, or undocumented individuals (such as victims of human trafficking) are all unable to apply for ILR through the domestic violence rule. These individuals would have to rely on applications under the ECHR or the Refugee Convention. For example, if they would face danger in their home country because of their status as a divorced woman, or face harm from their spouse’s family. They could also apply to remain on the basis of private and family life.

Destitute Domestic Violence Concession

The Destitution Domestic Violence Concession was introduced in 2012 which allows victims with NRPF to access public funds for 3 months whilst they apply for ILR. By introducing the DDV the government acknowledged the difficulty of leaving an abusive environment without financial support and have made an effort to provide assistance to victims who would otherwise be destitute. However, the concession has significant limitations as the government have neglected to make it available for all women with insecure immigration status. As is the case for the domestic violence rule, to qualify for support under the DDV concession an applicant must have entered the UK as the spouse or partner of a settled person in the UK, leaving many victims without access to support at such a vulnerable time.

The case of R (on the application of T) v Secretary of State for the Home Department [2016] EWCA Civ 801 held that a woman who entered the UK as a spouse of a person with limited leave to remain as a refugee did not qualify for the concession. This was because her spouse was not yet a person ‘settled in Britain’ as he only had leave to remain for 5 years. Her husband was subsequently granted ILR, but still she did not qualify under the DDV concession as she was not admitted to the UK as the spouse of someone settled in the UK. This means spouses of refugees with limited leave are still excluded from accessing the DDV Concession, even though they are now able to apply for ILR through the domestic violence rule.

The DDV Concession provides only temporary assistance. It comes with no guarantee of being granted ILR. The route to ILR through the domestic violence rule with support provided by the DDV is complex and requires ample evidence relating to the abuse and breakdown of the relationship. This is especially difficult for women dealing with a lack of access to resources, or language barriers. 

Access to Information

Migrant women are more likely to have difficulty accessing correct and useful information, especially if they are in a controlling environment. This often leads to them being misinformed by their abuser. Access to resources is crucial for women trying to escape abusive scenarios. For example, many women will be unaware that legal aid is available for women applying under the domestic violence rule, particularly as the availability of legal aid is rare in the area of immigration law. Free and easily accessible information in different languages must be available to assist migrant women.

The Istanbul Convention

The Istanbul Convention is a comprehensive framework that aims to tackle violence against women and girls. The UK is one of the last few EU countries to ratify the convention, thus it is currently not legally binding. Ratification would require the UK to do more to ensure that migrant victims of domestic violence are supported.

Under Article 59 on Residence Permits, the UK would need to ensure that all victims of domestic violence whose residence status is dependent on their spouses’ or partners’ would have the right to apply for a separate residence permit, regardless of the length of the marriage or relationship.

Article 20 notes that women have the right to general support, including free and confidential legal and psychological counselling, financial assistance, housing, education, training, health care and social services. Article 4 forbids discrimination on any ground, including migrant or refugee status, when implementing these provisions. Thus, it is likely that the UK would have to abolish the NRPF rule for all women who have suffered domestic violence, or at least make the DDV available to all as the current discrimination in who is able to access this concession is outwith the spirit of the convention.

New Domestic Abuse Bill

There was hope that the new Domestic Abuse Bill would bring the UK further in line with the obligations of the Istanbul Convention in terms of migrant women, but this has not been the case. The Joint Committee on Human Rights has stated that the bill does not meet the convention’s requirements. In particular, it fails to address the particular needs of migrant women. The draft bill does include a provision of £300,000 for BAME organisations that support survivors of abuse, but experts have stated that this will be wholly insufficient.[2] As Kate Allen, director of Amnesty UK stated; “To truly be ground-breaking, the Bill must ensure all women can access housing and welfare support and report abuse without fear of immigration enforcement. Otherwise perpetrators will continue to use the immigration status of their victims as a weapon to control and abuse their victims.”[3]

Overall, it is evident that the UK system is ill-equipped to protect victims of abuse with insecure status. There must be a shift in the attitudes of the authorities so victims of domestic abuse are never treated as suspects or criminals, regardless of their immigration status. Policies available for migrant victims must be extended, as they are currently too selective. By denying victims access to shelters, refuges, and state funds, the UK Government is complicit in perpetrating violence against women, thus the DDV Concession must be extended to all with NRPF. It is crucial that immigration policy does not take precedence over ending domestic violence.

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[1] A v Secretary of State for the Home Department [2016] CSIH 38.

[2] The Independent, M Oppenheim, Migrant Women Protest in Westminster over Controversial Domestic Abuse Bill, June 2019

[3]Amnesty International UK, Press Release January 2019, UK: Domestic Abuse Bill Risks Failing Migrant Women

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