Domestic violence of migrants at hands of their sponsors is a complex issue and whilst data is unclear on the precise numbers of this type of abuse, it appears to be on the rise. This is perhaps unsurprising given that the summer of 2019 saw a five-year high in the number of people killed as a result of domestic violence in the UK, with women overwhelmingly the victims. The pandemic has exacerbated this trend, and it has caused the WHO to express concern recently about a significant increase in domestic violence cases paired with a decrease in reporting by victims.
Defining DV
The cross-government definition of domestic violence is:
Any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality.
This can encompass but is not limited to the following types of abuse: psychological; physical; sexual; financial; emotional.
Controlling behaviour is: a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.
Coercive behaviour is: an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim.
This definition, which is not a legal definition, includes so called ‘honour’ based violence, female genital mutilation (FGM) and forced marriage, and is clear that victims are not confined to one gender or ethnic group.
The Home Office DV policies
Migrants who come to the UK on a spouse, civil partner or unmarried partner visa (here referred as “migrant spouses”) have the right to remain in the UK provided that the relationship continues. Spouses are given an initial period of 33 or 30 months (“probationary period”) followed by a further extension, on application, of 30 months. Thereafter the spouse would normally be eligible for Indefinite Leave to Remain (‘ILR’).
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Migrant spouses who experience domestic violence, at hands of their partner or others, leading to a permanent breakdown of the relationship can make a paid application during the probationary period under the Domestic Violence Rule of Appendix FM of the Immigration Rules. The Rules state that DV survivors will be entitled to ILR if:
- They are here as the spouse, civil partner or unmarried partner of a British citizen or a person settled in the UK;
- The relationship broke down permanently because of domestic violence; and
- They meet general suitability criteria (for instance, no unspent criminal convictions).
The Rule is silent as to the status of the perpetrator provided that the domestic violence caused the permanent breakdown of the marriage, i.e. the abuser could be another member of the family in circumstances where the sponsor offers no protection. Under the Destitute Domestic Violence Concession the applicant can make an application for a fee waiver on the grounds of destitution if she/he does not have access to funds and she/he would be totally reliant on a third party for food and accommodation. The Concession leads to a grant of temporary leave for 3 months during which victims can benefit from public funds such as housing benefit.
In terms of the evidence proving DV, the Domestic Violence Guidance states that the following evidence will be treated as ‘conclusive’ of DV:
- DV criminal conviction;
- Caution related to DV; and
- Final order in a civil court such as a non-molestation order, an occupation order or a protection order, if the judge found that DV occurred.
A welcome clarification on the importance of carefully considering the evidence came in the recent decision of Mr Justice Knowles in R (On the Application Of) Suliman v Secretary of State for the Home Department [2020] EWHC 326. The High Court ruled that the Home Office must consider all evidence in domestic violence applications and come to a reasoned decision. Not rocket science but this judgment is particularly relevant when considering that according to the Bristol University Justice Project:
…migrant women are less likely to access civil injunctions or orders (23% compared with 52% of UK/EU nationals accessed such an order). Women often incur costs in applying for civil orders, and navigating the legal and administrative systems can be especially confusing and challenging for migrant women, where English is not their first language.
Three barriers to protection
In practice the current Domestic Violence Rule and Destitution Domestic Violence Concession present significant, at times insuperable, barriers to migrant women in accessing protection.
Firstly, the fear of speaking out can be acute for victims whose immigration status is tied to the perpetrator’s status. Since the introduction of the ‘hostile environment’ in 2012 and its data-sharing arrangements between all government agencies, migrant victims have had a chilling deterrent to reporting violence due to the victim’s fear of being detained, deported or deprived of their immigration status, particularly when this would result in leaving children behind. At present the number of migrant victims of domestic violence removed from the UK stands at 30% following their reporting of abuse, with recent refusal rates doubling for spousal visa holders who have suffered domestic violence. Therefore the victims’ fears are well-founded. Without guarantees of adequate protection, including full in-country appeal rights against a refusal, women will continue to be hesitant to come forward and support the charging and prosecution of abusers. For now, the government have prioritised immigration enforcement over the need to provide a safe reporting environment that puts survivors first.
Secondly, perpetrators of violence routinely prey on the victim’s fears surrounding their uncertain immigration status in order to control and coerce them. The migrant spouses are often new to this country, isolated, with little experience of prior foreign residence and language barriers. The government’s own statutory guidance Controlling or Coercive Behaviour in an Intimate or Family Relationship – Statutory Guidance Framework recognises that perpetrators exploit their victim’s immigration status by using the threat of removal to prevent them from reporting the abuse. The Guidance accepts that there are important barriers affecting the ability and willingness of the individual victim to recognise or report abusive behaviour including:
- “Ethnicity – Those from black and minority ethnic (BME) backgrounds may experience additional barriers to receiving help or reporting abuse. This may include a distrust of the police, concerns about racism, language barriers, concerns about family finding out, or fear of rejection by the wider community.
- Immigration status – Those subject to immigration control may face additional barriers when attempting to escape domestic abuse. These circumstances may make them more reluctant to come forward and report abuse. Such circumstances may also be exploited by perpetrators to exert control over victims, for example, by threatening to inform immigration authorities, or to no longer support their stay … .’
- Fear of losing children– A victim may be fearful of their children being taken away if they make a report and the perpetrator may have tried to convince them that this is the case.”
Under “Offender tactics” the Guidance states:
32.Perpetrators can be particularly adept at manipulating professionals, agencies and systems, and may use a range of tactics in relation to this offence, including:
-
- using threats of manipulation against the victim. For example, by telling the victim that they … will inform immigration officials where the victim does not have a right to remain;
Despite this guidance, the Home Office has previously failed to take a joined up approach. In AT, R (On the Application Of) v Secretary of State for the Home Department [2017] EWHC 2589 (Admin), Mr Justice Kerr held that in an administrative review decision upholding a refusal of an application under the DV Rule, the Secretary of State had failed to consider that threats to denounce a domestic violence victim to the immigration authorities can form part of a course of conduct itself amounting to domestic violence.
Thirdly, if unable to satisfy the Destitute Concession, abused women are denied access to refuge and welfare support because migrants on a spouse or partner visa have a “no recourse to public funds” condition attached to the first 5 years of their leave to remain. The cost of making domestic violence applications is prohibitive, with fees currently set at £2,389 for the main applicant and an additional fee for each dependant child (if the child is not British or settled). A study showed that 27% of these women were left destitute during the process.
Further, a refusal does not attract right of appeal, leaving applicants in a total legal vacuum, with many forced to choose between returning to their abusers or being removed from the UK. Once a DV application is refused, victims have a right to a paper administrative review limited to procedural errors and where the chances of a decision being overturned by the Home Office are below 2%. If upheld, the victim’s only option is instigating judicial review proceedings against the Secretary of State with clear cost and time implications. Whilst a judicial review is being pursued, the migrant women have no legal right to remain in the UK and may face insuperable financial hurdles in the pursuit of their claim such as homelessness or being more likely to encounter a justice gap, with police not pursuing criminal charges.
Some thought that there would be a glimmer of hope for migrant survivors in the Domestic Abuse Bill but the Bill has been rightly criticised by the Step Up Migrant Women Coalition. In their submission to Parliament the group state that:
…the Bill is overall a disappointing and inadequate solution to a devastating and widespread problem [and] leaves behind particularly migrant women.
In fact, migrant women are not mentioned anywhere in the face of the proposed legislation and will thus continue to encounter the same hurdles when seeking effective protection including destitution, detention, deportation and the loss of their children.
Recommendations
The time has come to separate and firewall the reporting of domestic violence from immigration control. This unfortunate alliance serves no objective purpose other than deterring victims whilst simultaneously emboldening perpetrators. All migrant survivors ought to be provided with a route of redress and support independent of the Home Office so that they can break away from their abuser without fear of repercussions. The Domestic Violence Rule and Concession must be extended so as to enable all migrant victims, not just those on a spouse visa, to access a humane level of refuge and support, including legal assistance, from the moment an application is made. Moreover, there is no objective justification for the differential treatment of abused migrants on the basis of their marital status and therefore this distinction remains discriminatory.
If you are affected by these issues, or you know someone who is, please seek help. The following organisations may be able to help you:
Contact us if you require legal advice on immigration matters.
