37. Memorandum submitted by
Southall Black Sisters
1. INTRODUCTION—"WHERE
IS THE
HUMANITY"?
On 1 March 2006, SBS received a call for advice
from Rochester Police stating that they had rescued an Asian (Sikh)
woman from domestic violence perpetrated by her husband and in-laws,
and were desperately seeking alternative accommodation for her.
She had no family or friends in the UK and under immigration and
benefit rules; she could not access emergency housing or claim
any benefits. No refuge was prepared to accept her as she could
not pay rent or support herself. Local charitable organisations
including the Sikh temple was not prepared to accept her. Out
of desperation, the police stated that they were minded to contact
the Home Office to detain the woman. The police did not want to
be responsible for sending her back to her matrimonial home to
face what they considered to be "certain death".
It was pointed out that detention was unlawful
as the woman had a right to make a claim under the "domestic
violence rule" and that challenging such detention would
incur unnecessary public funds! It was also argued that the state
had no right to threaten an already traumatised woman, who had
been subject to violence and imprisonment in her home, with loss
of liberty for no other reason than the fact that she had no means
of supporting herself. Eventually the woman was found overnight
accommodation with an acquaintance and was referred to SBS for
further support.
The Government recently set out its vision of
a "fairer and more prosperous Britain where discrimination
simply has no place". This report suggests that to ensure
that this laudable ambition is realised, requires a significant
deepening in our understanding of how gender discrimination and
race discrimination come together to shape the lives of black
and minority women in the UK today. "More important still,
it requires the political will to make change happen" (The
Fawcett Society. February 2005)
This submission will focus on the "Domestic
Violence" and the "No Recourse to Public Funds"
rule because of the devastating impact such rules have on the
ability of women to obtain protection in circumstances where their
immigration status is not secure.
As the above cases highlight, the UK's immigration
controls are unjust and inhumane. It would appear that as a society,
we have reached a stage where minority women subject to violence
and immigration control must be detained as criminals and/or denied
the right to live free from domestic violence because they have
no means of supporting themselves in a place of safety.
2. NO TIGHTENING
OF IMMIGRATION
CONTROLS
At the outset, we wish to alert the Home Affairs
Select committee to the dangers of contemplating yet further restrictive
immigration controls as the solution to problems faced by black
and minority women who do not have settled status. As black women,
we are wary of yet more immigration controls which have human
rights ramifications for women and for our entire communities
of which we are also a part.
There are those who would argue that given problems
of domestic violence (including issues of forced marriage) within
minority communities, the most effective means of protection is
to tighten immigration controls. The problem with this approach
is that it consistently links violence against women in minority
communities with immigration matters, as if such women have no
intrinsic right to liberty and life unless they are addressed
as an aspect of immigration control. Another significant problem
is that such an approach does not address the question of violence
or other forms of abuse that is experienced by the majority of
minority women in the UK who do have settled status. The approach
is blatantly discriminatory towards minority women and to the
wider community to which they belong.
It is recognised that addressing violence against
women in the wider society requires a raft of measures including
effective civil legal remedies, a robust criminal justice system
response and extensive welfare and housing options. Yet this same
recognition is not afforded to minority women whose problems are
simply viewed as a consequence of flawed immigration controls.
The approach is more concerned with preventing the immigration
of people from countries that the UK considers undesirable, rather
than with the safety of vulnerable people. It also sends a message
to minority communities that their group rights will be constantly
under scrutiny and as such they can never feel secure in exercising
their right to freedom of movement and enjoyment of private and
family life. The discriminatory nature of the approach has not
escaped many women, who feel that those who advocate more immigration
controls to deal with forced marriage, never show the same interest
to women who are subjected to violence and immigration controls.
Such women are barred from relying on state support, without which
they cannot escape violence and abuse.
For example, following concern about forced
marriage from 2000 onwards, the government introduced a number
of policy initiatives, including raising the age at which an overseas
spouse can join their British spouse from 16 to 18 years of age.
The rationale behind this move was to prevent young women being
taken abroad and forced into marriage or to reduce bogus marriages.
Notwithstanding the fact that forced marriage is an abuse of women's
fundamental human rights, the approach was not about addressing
the abuse faced by young women but about controlling the flow
of immigration of males from areas of the world considered "backward".
Yet there is no concrete evidence that raising the age of marriage
for foreign nationals has had any impact in reducing forced marriage.
Indeed, our experience shows that those who are determined to
take children abroad for the purposes of marriage, are doing so
undeterred. Parents circumvent the law by taking children abroad
at a younger age, forcing them into a marriage and then abandoning
them until they are 18 years of age. This state of affairs simply
exposes adolescent women in particular, to greater risk of violence,
rape and sexual abuse, making it harder for them to return to
this country and mount an effective legal challenge in the civil
or criminal courts. Their problems are compounded by the fact
that by the time they can seek redress, they are usually pregnant
or have young children.
For this reason, the age requirement should
be abolished, since it does not prevent forced marriage and instead
visits hardship on many in minority communities who enter into
valid marriages. Paradoxically, our view is that it is the relaxation
of the immigration controls which will help to address problems
of forced marriage, since marriage will not be seen as a route
to gaining entry to the UK.
We therefore state quite categorically that
we do not wish to see serious issues such as violence against
women, forced marriages and honour killings' reduced to a question
of immigration control, since such an approach simply compounds
the discrimination faced by black and minority people and does
not address issues of safety of women who are subject to violence.
Black and minority women need to be afforded safety and protection
in the UK in the same way that women are protected in the wider
community. Issues of violence against minority women must be addressed
within a domestic violence policy framework, which takes account
of the impact of immigration controls rather than through an immigration
control framework which justifies further restrictive practices
in the name of protecting black and minority women from domestic
violence.
Our aim in highlighting the interface between
immigration controls and violence against women is to demonstrate
the complexity of the discrimination faced by black and minority
women who are abused and have immigration problems, and to call
on the government to make good its promise to address the issues
as a matter of urgency.
3. THE DOMESTIC
VIOLENCE RULE
For over 13 years, Southall Black Sisters (SBS)[13]
has campaigned to highlight the failure of immigration legislation
and rules to take account of the tragic plight of women subject
to immigration controls and domestic violence.[14]
Until 1999, the immigration rules on marriage
stipulated that a person entering the UK for the purposes of marriage
had to undergo a one year (extended to two years from 2002) probationary
period. If the marriage broke down within that period for whatever
reason, the dependant spouse was liable to be deported. The harshness
of the rule, especially for women who came from countries where
they are discriminated or persecuted for being divorced or separated,
meant that women who were subject to domestic violence were forced
to stay within abusive relationship rather than report the violence
and risk deportation.
We sought not only to change immigration law
but also benefits and housing legislation so that women could
be entitled to safe alternative housing and living costs in order
to escape violent relationships, without fear of becoming destitute.
In 1999, the Government introduced the Domestic Violence Concession
which permitted a person who entered or stayed in the UK as spouses
and partners subject to the probationary period, to apply for
indefinite leave to remain in the UK if they could provide evidence
of domestic violence. The concession was incorporated into the
Immigration Rules in December 2002 and has come to be known as
the "domestic violence rule".[15]
Under the domestic violence rule, an applicant
(usually women) subject to immigration control and domestic violence
can be eligible to remain in the UK indefinitely as a victim of
domestic violence. To be eligible an applicant must show they
entered the UK on a valid spouse/partner visa, is in a marriage/relationship
with a person who is a UK national or is settled. The application
must be made before the visa has expired and must show that their
relationship/marriage broke down due to domestic violence, and
produce evidence of domestic violence during the visa period.
The types of evidence required are: a civil
court order, criminal conviction or criminal caution. Failing
this, the Home Office will also accept two of the following types
of evidence: undertaking, letter from the police/social services/women's
refuge or a GP or hospital report.
At an SBS conference in November 2004, the Home
Office Minister, Baroness Scotland, announced further reforms
to the domestic violence rule by further extending types of acceptable
evidence to include specialist domestic violence organisations.
4. PROBLEMS WITH
THE DOMESTIC
VIOLENCE RULE
We welcome the domestic violence rule within
immigration law. It represents an acknowledgement from the government
that women with immigration problems have a right to protection
from domestic violence. However, there still remains a number
of significant areas of concern which need to be urgently addressed.
These concerns range from the restrictive nature of the rule (protection
is limited only to women who enter the UK as spouses and partners
and who apply within the probationary period) to the continuing
existence of the "no recourse to public funds" requirement.
We are also concerned with the quality of the
initial decision making within the Home Office which can be extremely
poor. Many cases are won on appeal because the Home Office consistently
shifts the goal post and/or fails to adhere to the spirit of the
rule.
4.1 No Recourse to Public Funds
The most significant barrier to seeking protection
from violence is the existence of the restriction on public funds
for those who do not have settled status.
Every year, SBS handles on average 40 cases
and 180 enquiries on domestic violence and immigration matters.
This does not include regular requests for expert reports from
immigration practitioners to explain the considerable obstacles
black and minority women face in reporting domestic violence.
Within this category, almost half of the cases and enquiries are
about the "no recourse to public funds" rule. Alarmingly,
trends in this area of our work show that the numbers of women
who cannot access safe accommodation and funds to support themselves
are increasing, resulting in desperate measures being contemplated
by individuals and organsiations alike.
Whilst the domestic violence rule has removed
to some extent women's fears of being returned to their countries
of origin if their marriage/relationship breaks down, it has not
removed their fear of destitution and risk of further violence.
The restriction on public funds preserves the economic dependency
of abused women on violent spouses/partners or relatives and prevents
a significant number of women from escaping violence and even
death. The government has acknowledged that welfare benefits and
access to housing are essential prerequisites for all victims
wishing to escape domestic violence as these provide an initial
safety net.[16]
Yet this recognition is denied to women who have an insecure immigration
status and in doing so puts them outside the scope of the protection
afforded by domestic violence legislation and policies generally
and the domestic violence rule in particular. Women cannot avail
themselves of the domestic violence rule if they have nowhere
to go after they have reported domestic violence. The "no
recourse to public funds" requirement prevents women (and
their children) from obtaining not only social security benefits
and emergency local authority accommodation, but also as a consequence,
access to refuges.
In our view, this continuing restriction defeats
the very purpose for which the domestic violence rule was introduced—to
protect victims of domestic violence who have immigration problems,
by allowing them to leave an abusive relationship and settle in
the UK.[17]
Almost all women need safe accommodation and
financial assistance to meet their basic needs, without which
they cannot pursue their right to protection and justice. Many
want their abusers to be held accountable through prosecutions
or civil court injunctions but find that without security of accommodation
and financial help, they have no option but to remain with their
abuser. This often results in the withdrawal of allegations and
legal actions. Abusers are thus able to continue their violence
and abuse with impunity. Many of the women that we see echo similar
stories of domestic servitude, imprisonment, starvation and the
most horrific physical, sexual and emotional violence imaginable.
Needless to say, mental health problems, depression and suicide
attempts also feature strongly in such cases. Other worrying trends
include abusers abandoning women in their countries of origin,
following a marriage but within the two year probationary period.
In their country, such women are left to face social isolation,
discrimination, destitution and further physical and sexual violence
without any hope of adequate state protection.
The range of problems encountered by women who
cannot access safe accommodation or welfare benefits in the UK
to support themselves are highlighted in the following cases:
Ms J: Ms J is an Indian
national married to a British citizen and subject to the two-year
probationary period. She approached SBS whilst heavily pregnant.
She reported her husband's physical abuse to the police who put
him on police bail until they made a decision about charging.
In the meantime, SBS had considerable difficulty finding a space
in a woman's refuge—one refuge housed the woman for one
night, but was unable to provide any more space for subsequent
nights. All other refuges were unable to accept her because of
no recourse to public funds. However, while SBS was still searching
for accommodation, due to immense cultural pressures and the uncertainty
of her situation, Ms J returned to her husband and withdrew the
allegations. The police told SBS they wanted to continue with
a prosecution, but required guarantees that the woman could access
on-going safe accommodation if they did so. SBS was unable to
provide such guarantees. As a result, the police did not proceed
with the prosecution.
Ms F: Ms F is from Pakistan.
She married a British Citizen and then came to the country in
2004 on a spousal visa. She lived with her husband and her in-laws
in Manchester. Ms F was treated as a domestic servant. She was
made to do all the housework and cook and clean for the family.
Ms F was totally isolated and not allowed to go out or receive
any telephone calls. She was constantly threatened with violence
if she left the house or failed to serve her in-laws. Her husband
had a girlfriend who he visited in London every weekend. He only
returned to the matrimonial home once a month but when he did,
he subjected Ms F to a catalogue of extreme physical and sexual
violence. He repeatedly raped her and on one occasion forced her
to drink his urine. Ms F frequently contemplated suicide and on
the anniversary of her marriage attempted suicide by drinking
bleach. She was eventually assisted by a family relative who brought
her to Southall but then left her to wander the streets. The relative
was too frightened of reprisals to help her further. SBS had to
buy her urgently needed clothes, including underwear and persuaded
a refuge to accept her temporarily with living expenses and travel
paid by SBS.
Ms R: Ms: R married a
British national and came to the UK from India on a spousal visa.
From the moment of her arrival to the UK, Ms R was repeatedly
subjected to violence and abuse from her husband and in- laws.
She was also sexually assaulted by her father-in-law. Her husband
and in-laws would lock her in the house and remove the telephones
so that she could not contact anyone. Eventually she managed to
leave the matrimonial home with the help of an acquaintance and
make a report to the police. However, her husband and in-laws
persuaded her to return to the matrimonial home. She agreed to
reconcile in the hope of saving her marriage. Instead, her husband
and in-laws tricked her into going to India on the pretext of
visiting her mother and then abandoned her in that country. In
India, Ms R's family rejected her and sent her back to the UK,
because she had married a man from a lower caste against their
wishes. They told her to her reconcile for fear of bringing shame
on the family.
Ms R returned to the UK and having no where else
to go, attempted to return to the matrimonial home. Her husband
refused to have her back. She returned to Southall, desperately
searching for accommodation and support. She persuaded an acquaintance
to let her stay with her temporarily. Ms R felt humiliated for
having to rely on a near stranger for assistance. She is currently
on medication for depression and in receipt of psychotherapy at
SBS. She has managed to find employment but only earns enough
to pay her rent. She visits the local gurdwara on a daily basis
for food.
Ms S: Ms S came to UK
on the basis of marriage from India on a spousal visa. She was
subjected to violence and abuse from her husband. She was then
sent back to India but her family told her to return because they
did not wish to offend the proprietorial relationship between
her and her husband and because she was a financial burden on
them. Eventually, through a friend and an agent, she managed to
return to the UK. At the airport, she approached a total stranger,
an Asian woman, and begged for help. She was taken home by the
stranger who then told her to go to Birmingham to stay with a
friend. Unable to cope with the stigma of being divorced, Ms S
reconciled with her husband who continued to subject her to violence.
She was constantly threatened with deportation if she disclosed
her condition to anyone. Ms S's mother in law found her employment
but she was made to hand over her wages. Ms S was too afraid to
tell anyone at work for fear that her husband and in-laws would
find out. Eventually Ms S was thrown out of her marital home.
SBS could not access a refuge on her behalf because she could
not pay rent or claim benefits. Eventually, through her employment,
she found rented accommodation.
Ms A: Ms A came to the
country from India on a spousal visa. Ms A's husband subjected
her to repeated physical and sexual violence. She was often beaten
with a hockey stick. Her husband also threatened her with a gun
and told her that she would be killed. She was treated like a
slave and forced to do all the household chores. She was also
imprisoned in the house. On one occasion, when she was assaulted,
she managed to call the police. She was taken to the local police
station and a statement was given. However, Ms A had nowhere to
go for the night, and so the interpreter at the police station
agreed to take her home for the weekend. Ms A then tried to seek
help from Social Services, but they failed to assist, saying there
was nothing they could do. She could not access local authority
accommodation or a woman's refuge. Eventually a distant relative
agreed to let her stay with her. Whilst living with her relative,
Ms A discovered that she was pregnant. Her relative tried to reconcile
her with her husband but Ms A's in-laws refused to acknowledge
her pregnancy and she was forced to undergo an abortion. Ms A
has been assisted by SBS in obtaining an injunction since leaving
the matrimonial home. She eventually obtained employment as a
carer which included tied accommodation.
The desperate circumstances of such women, places
a heavy, indeed impossible burden on charitable individuals and
organisations such as women's groups and churches, temples and
mosques to accommodate and support women. An extremely worrying
trend observed by SBS, is the sheer dependency that is created
on total strangers, many of whom behave compassionately and selflessly.
However, as is inevitable, such dependency is a "hit and
miss" affair and extremely undesirable since it can expose
women to unscrupulous individuals who take advantage of their
vulnerability, subjecting them to further economic and sexual
abuse. Turning to religious institutions for help is also an extremely
dangerous step for many Asian women, since they are encouraged
to reconcile with abusive partners.
Many women cannot claim maintenance from their
partners because they are not working or because the marriage
has been short lived. Although there is no restriction against
working, even if women manage to leave an abusive situation, they
are unable to work due to trauma, lack of English or other skills,
the presence of young children and the lack of child care. Some
cannot obtain an NI number because they cannot prove their identity.
In most cases, all documents and immigration papers are retained
by abusive husbands/partners and/or their families.
Cases in which children are also involved can
be very difficult to address because there is a real fear that
residence may be awarded to abusive fathers if women are destitute
and have no accommodation.
Apart from refuges refusing to assist women
with no recourse to funds, one of the most disturbing trends observed
by SBS and others is the refusal of assistance by local authorities,
even though many women are pregnant or have children. Most local
authorities are reluctant to help and even amongst those that
do help, there is no consistency of approach. Many of our cases
reveal that even where social services are involved; there is
usually a cut off point after which no further assistance is given.
In one case involving a Jamaican national with a child, her local
authority told her to leave her accommodation because they could
no longer support her. She was told to give her child to the father,
find somewhere else to stay or go back to Jamaica. In another
case, social services offered to pay for a woman's flight back!
In yet another case, social services refused to assist, even though
the woman's child was on an "at risk register".
In January 2006, the Office of the Deputy Prime
Minister issued a letter to local authorities reminding them that
they should be "mindful" that women subjected to domestic
violence who had no recourse are vulnerable and should therefore
be assisted with accommodation.[18]
However, as our cases show, local authorities are very unwilling
to assist women with or without children. The main problem is
that protection is left to the discretion of the local authorities.
RESEARCH
In addition to the cases cited above, between
the years 1999, 2001 and 2003, SBS conducted a number of surveys
on domestic violence and immigration problems. The aim of the
surveys was to ascertain the views of immigration practitioners
and agencies as to the effectiveness of the domestic violence
rule.
Many agencies registered great dissatisfaction
and frustration with the restriction on public funds, which was
described as "draconian and inhumane." All the agencies
described how they struggled to help women escape violence in
circumstances where no help with funds or accommodation was forthcoming
from local authorities. They expressed an overwhelming demand
for the restriction on recourse to public funds to be lifted,
since without it women could not exercise their rights under the
domestic violence rule.
Our surveys found that:
— The overwhelming nature of the problems
dealt with by agencies involved problems with no recourse to public
funds.
— Refuges were only able to provide emergency
accommodation for approximately a third of the women with no recourse.
— Specialist black and ethnic minority
refuges, and refuges situated in areas with a concentration of
black and ethnic minority communities bore the brunt of accommodating
women with no recourse, simply because others did not have the
specialist skills, knowledge or languages necessary to help minority
women.
— There was a severe shortage in the availability
of and accessibility to emergency and specialist refuge accommodation
for women with no recourse.
— Refuges were unable to sustain the severe
drain on the resources of refuges both financially and in terms
of worker hours that they incur when accommodating these women.
Refuges frequently found themselves in the difficult position
of having to turn women at risk of violence away, in the knowledge
that those women had no other alternatives.
— In the absence of rental income through
housing benefit, refuge workers struggled to find alternative
sources to fund refuge places and financial support for women,
despite turning to charities and churches for handouts.
— Refuges found that it took, on average,
6-24 months for a woman's immigration application to be determined,
during which time they had no access to public funds. Also, agencies
found that although women with limited leave under the probationary
period had the right to work, most were unable to do so, at least
initially, due to lack of language skills, work experience, professional
qualifications and/or the need to care for young children.
— Local authorities, in particular, social
services were providing at best inconsistent and at worst a discriminatory
service to women with immigration problems. Irrespective of whether
women were entitled to support or not, agencies reported that
social services behaviour ranged from unhelpful and obstructive
to intimidating. In some cases social services required evidence
of domestic violence before they even agreed to take any action.
In other cases, they insisted on taking children into care rather
than accommodating them with their mothers or providing financial
assistance under Section 17 of the Children Act 1989. Also, most
local authorities failed to provide support under the National
Assistance Act 1948, indicating uncertainty and sometimes ignorance
as to the rights of vulnerable women with immigration problems.
In addition, single women without children or a special need such
as, disability or illness, have no access to housing or financial
support from the local authority, and often face total destitution.
The above cases and survey results reveals a
bleak reality for those women who cannot access welfare benefits
or housing. There is a massive gap in the level of protection
and support for women with immigration problems who have no recourse
to public funds compared to other women when fleeing violence.
The survey results and other research shows that even refuges
could only accommodate approximately 15%[19]
of those made homeless by domestic violence. Respondent agencies
reported that without guarantees that women will not have to return
to their abusive partner for fear of extreme poverty, hardships
and separation from their children, women are prevented from leaving
abusive partners in the first instance, or are being forced to
be dependent on family, friends and even strangers or remain in
abusive relationships. In addition, the extension of the probationary
period from one to two years has increased the hardship women
face, prolonging the period of abuse, thus making them more vulnerable
to violence, homicide, suicide and self-harm[20].
Although a number of women who approach refuges
for help need ongoing support and accommodation, some need assistance
for a temporary period only, usually until they can submit an
application to remain in the UK or make arrangements to secure
alternative safe accommodation for example by securing employment
and then renting a place. But even in these cases we find that
local authorities are refusing to fulfil their obligations.
"The domestic violence concession has been
introduced for overseas spouses who wish to remain in the United
Kingdom, but who wish to leave their partner because of domestic
violence before completion of the 12 month probationary period.
The concession allows them to settle in the United Kingdom even
if they are no longer living with their sponsor provided they
comply with the conditions set out in the concession"
THE GOVERNMENT
RESPONSE SO
FAR
International human right conferences and bodies
including the Council for Europe have stated that minority women
with uncertain immigration status are particularly vulnerable
and should be accorded greater assistance and protection when
fleeing violence. Several countries including Denmark[21],
Austria, Canada[22]
and USA[23]
have introduced similar provisions to the domestic violence rule
but they also provide women with public funds pending an application.
In the USA, all immigrants (including overstayers and illegal
entrants) qualify for federally funded emergency and short-term
shelter and housing programs, as well as other forms of state
and federally funded assistance necessary to "protect life
and safety"[24].
Shelter programmes that refuse to accommodate immigrants are liable
to being charged with discrimination in violation of federal law
and losing their federal funding. The position is the same in
Austria where all women irrespective of their immigration status
are entitled to access refuge accommodation and living costs for
themselves and dependants if they use the anti-violence legislation.[25]
The UK government's policy on this issue flies in the face of
international good practice and standards.
In the UK, the recent overhaul of domestic violence
laws was a missed opportunity to protect women who do not have
settled status. During the passage of the Domestic Violence, Crime
and Victims Act 2004, SBS was unsuccessful in lobbying the government
to include an exemption to the no recourse to public funds requirement
by amending the benefits rule to provide women with a safety net
of support when they experience violence.
In the past, the Home Office has acknowledged
that women from ethnic minorities have particular problems in
leaving an abusive relationship due to family and cultural pressures,
and difficulties in gaining access to specialist support and services
when fleeing violence. Their document Safety and Justice
(2003) for instance, stated that "victims are often deterred
from seeking help or leaving a violent relationship because they
have nowhere else to go." The paper described the availability
of safe and secure accommodation as "crucial and life-saving".
The Government also acknowledged it has a "duty . . . to
ensure victims attempting to leave a violent relationship—one
of the most dangerous time for victims of domestic violence—can
have access to refuge accommodation and service"[26].
Home Office figures also show that there is a considerable shortfall
in the provision of support and services for ethnic minority women.
This shortfall is also echoed in the recent Fawcett Society report
on black and minority women in the UK.[27]
The government accepts that women who come within
the ambit of the domestic violence rule and who have no recourse
to public funds require specialist emergency accommodation. However
the Home Office appears to ignore its findings on the provision
of services for ethnic minority women. The decision not to allow
exemptions to the "no recourse to public funds" requirement
has been justified in the name of protecting the "integrity"
of the immigration and benefit rules. Instead, the government
has made a commitment to "ensure victims can get access to
safety and support, including refuge services, funded through
the Supporting People arrangement".[28]
However, this provision is wholly inadequate because it only provides
housing related support (for example the salaries of the refuge
workers) and not essential core costs such as housing benefit
and income support for the payment of rent and living expenses.
In response to vigorous lobbying, the government
first provided a contribution of £40,000 to the Women's Aid
Last Resort Fund in February 2004. Women's refuges were entitled
to apply to the fund for a maximum period of eight weeks for financial
support towards a woman's living costs and/or rent. It was available
for women who had no other access to any funds, intended as a
last resort pending other measures being put into place. However
as predicted, by September 2004, the last resort fund ran out.
In November 2004, the government announced a contribution of another
£80,000 but this too has run out. Since then, no further
funds have been forthcoming, driving both women and their advisers
to the brink of despair and desperation.
In its Summary of Responses to Safety and
Justice[29],
the Home Office made a commitment to "ensuring that those
still subject to immigration control can get access to refuge
accommodation" and would consider "whether any further
support could be offered to this group of victims within the current
legislative framework." However, since the publication of
the Summary, there have been no concrete proposals for reform
or any time frame given within which to carry out legislative
or non legislative changes.
What is particularly disturbing, is that as
a result of the last resort fund running out, it has become increasingly
rare for refuges to accept women and their children. Some will
provide emergency overnight accommodation but most will not accept
women in any circumstances, because they know that the woman will
become a financial burden and that they will not be able to move
them to alternative accommodation.
In the absence of any effective government action
on the issue of restriction of public funds, we feel that it is
imperative that this problem is addressed as a matter of priority.
RECOMMENDATIONS
For an account of who would benefit from the
proposed recommendation see Appendix 1.
Exempt women who are subject to domestic
violence from the "no recourse to public funds requirement"
by amending relevant immigration and housing/welfare benefits
rules: Women should be allowed to access welfare benefits
from the moment an application to remain in the UK is made. Evidence
establishing domestic violence or a statement addressing reasons
why the required evidence is not available, should be sufficient
to access welfare benefits. Funds should be available pending
a final determination and can be reclaimed from the victim's sponsors/perpetrator/s.
All the respondents to our national surveys
agreed that women with no recourse should be entitled to all non-contributory
benefits and if necessary to recover the amount paid out from
abusive sponsors, except where there is risk of further violence
or reprisals either to the woman herself or to her family here
or in her country of origin. We feel that such cases however,
will be few, since access to funds will enable women to access
the safety of refuges where they would be better protected.
The proposal will ensure that all victims of
domestic violence can claim essential welfare and housing benefits.
The proposal need not result in a huge injection of extra funds,
as we believe that any money paid out in benefits would only apply
to a small number of claimants (approximately up to 500 per year
for those subject to the probationary period and about 100 subject
to other immigration controls), which, at the discretion of the
Secretary of State, can be reclaimed from the sponsor, who would
have signed a declaration to maintain the applicant as part of
their sponsorship agreement when first applying for the applicant's
entry or stay in the UK.
A precedence already exists: The principle
of retrieving costs paid out in benefits has already been established
by the Child Support Agency (which also applies exemptions for
women fearing further violence). In addition, this principle,
and the mechanism for its implementation, has also been established
under immigration and social security regulations which allows
the State to recover costs from liable relatives or sponsors who
have given formal undertakings to maintain and accommodate a claimant
from overseas.[30]
In addition under the Social Security (Immigration and Asylum)
Consequential Amendments Regulations 2000[31]
certain categories of persons subject to immigration control are
entitled to a range of benefits. This includes persons whose funds
have been temporarily cut off from abroad and persons whose sponsors
have died. We would argue that extending this precedent to a small
but extremely vulnerable group of victims is in line with immigration
and benefit rules.
Other jurisdictions: In other jurisdictions,
such as Canada and the USA, similar mechanisms exist for the State
to retrieve costs from sponsors where women with immigration problems
access public funds (unless the victim fears further violence
or reprisals). There is also anecdotal evidence to suggest that
recovering costs from sponsors acts as a deterrent, preventing
abuse.
Fast tracking domestic violence cases:
Moreover, if there were additional obligations on the Home Office
to make a decision on an application to remain under the domestic
violence rule within 2 weeks on receipt of full representations,
the burden to maintain and accommodate an applicant pending such
a decision will be minimal. However, public funds should still
be available for refusals pending appeals and judicial review
proceedings.
Advantages: The main advantages of the
proposal are that women will be able to leave a violent relationship
without fear of destitution and abusers will be deterred from
treating their marriage as a "trial marriage".
We believe that reclaiming monies paid out to
victims of violence is also morally right because as a measure
it contains elements of punishment and deterrence for abusers.
Being forced to maintain their spouse in circumstances where they
have subjected her to violence and cruelty will be a major disincentive
to abusers. This will have the added advantage of forcing abusers
to enter their marriage in good faith.
It should be noted that such a reform, while
costing very little to the state, will have enormous benefits
in terms of reducing the human and economic costs of domestic
violence. The reforms will also demonstrate the government's commitment
to uphold the human rights of all victims to live free of domestic
violence.
Create a special fund: In the short term,
the government must consider setting up a special fund financed
by the Victim Fund and other sources to enable women to access
refuge or local authority accommodation and provide living expenses,
pending a final determination of an application to remain in the
UK.
4.2 Overstayers and others
Ms P: Ms P, now deceased
was an Indian national who underwent a religious Hindu marriage
ceremony with a British national in India. Ms P came to the UK
on a visitor's visa in December 2002. Whilst in the UK, she married
her husband in a civil ceremony. Her husband told her that he
would regularise her immigration status but did not take any steps
to do this. Through her friends, SBS learnt that Ms P was subject
to emotional and verbal abuse throughout her marriage. In October
2003, Ms P died after ingesting poison. Her friends informed SBS
that she had been married once before and could not bear the shame
of returning to India as a divorcee.
Ms H: On 28 January 2004,
Ms H a Pakistani national and her seven year old son approached
SBS for help. She wished to claim asylum on the basis that it
was unsafe for her to return to Pakistan for fear of being killed
by her husband and his family. Ms H had no money or family and
friends in the UK. She was entitled to NASS support and accommodation
but only after she had actually made a claim. However, the Home
Office staff was on strike and she was not able to claim asylum
until 2 February 2004. On the day that Ms H attended SBS office,
temperatures were sub zero and there was heavy snowfall and major
disruption to public transport. Caseworkers at SBS contacted 15
refuges, but only one was willing to provide emergency accommodation
for the night. They all stated that they could not afford to accommodate
the woman rent free or meet her basic needs. Ms H was also referred
to social services, but, instead of providing emergency accommodation,
they told her to try another voluntary group in South London which
she could access by public transport! Ms H had no money and no
knowledge of English. Given the extreme weather conditions, SBS
became extremely concerned for her safety; however there was no
way of contacting her or knowing whether she had reached her destination
safely.
From the 500 women or so who experience violence
from a partner every year, many include "overstayers"
(women who enter or remain in the UK on the basis of their marriage/relationship,
but who apply to remain after the expiry of their visa at the
end of the probationary period), students and asylum seekers who
are dependent on their partner's claim for asylum. However, such
women fall outside the domestic violence rule and are therefore
not protected at all. The domestic violence rule is in this respect
far more restrictive when compared to other jurisdictions where
greater protection is offered to victims of domestic violence
who also have unsettled status.[32]
SBS and other immigration practitioners have
identified a particular problem with women who become "overstayers".
Women usually become "overstayers" because their spouses/partners
keep them in the dark as to what steps have been taken to regularise
their stay or they refuse to regularise their status at the end
of the probationary period. Many women are therefore unable to
apply for indefinite leave to remain before the expiry of their
visa. As a result, even if they can demonstrate that they are
victims of domestic violence, they are often refused indefinite
leave to remain under the domestic violence rule. Yet their experiences
of violence are no different to that of women who apply within
the probationary period.
We believe that there is an overwhelming case
for all women who experience violence and are subject to immigration
control to be included within the domestic violence rule because
their uncertain status arises through no fault of their own. As
the above cases highlight, the plight of such women are no less
tragic. They also face life threatening situations due to the
uncertainty of their status. Protection from domestic violence
cannot be given to some women but not others.
RECOMMENDATION
Extend the Domestic Violence Rule: The domestic
violence rule must be extended to all women who are subject to
domestic violence and immigration control. They should also all
be entitled to public housing and funds pending the final determination
of such applications.
4.3 Extend the evidential requirement
Ms T, an Indian national lacked knowledge of her
rights and was too afraid of further violence and of removal from
the UK, to report domestic violence while living with her husband
during the probationary period. Following separation, her husband
continued to harass her. Following advice from friends, she reported
a post separation incident of violence to the police, who failed
to take any criminal action against the husband. The Home Office
refused her indefinite leave to remain because she could not prove
that she was a victim of domestic violence or that she suffered
abuse whilst living with her husband. The Home Office even refused
to accept the findings of an immigration adjudicator who, following
a hearing, determined that Ms T had been subjected to domestic
violence while living with her husband. It was only after a sustained
campaign by SBS and further legal proceedings that Ms T was eventually
granted indefinite leave to remain in the UK.
Many of our cases show that the type of evidence
required under the domestic violence rule to prove domestic violence,
is not easily obtainable. Due to the hidden nature of domestic
violence and significant problems with reporting, (imprisonment,
fear of further violence and deportation, cultural pressures,
lack of English and/or an awareness of rights, inaccessibility
to sound legal aid help and assistance), some women are unable
to provide the type of evidence currently required to qualify
under the domestic violence rule.[33]
As a result, SBS is often inundated with requests from lawyers
for expert reports, to explain the obstacles faced by women in
reporting violence to the agencies stipulated in the domestic
violence rule or indeed to anyone at all. The significant obstacles
encountered by women in reporting violence need to be fully recognised
by the Home Office.
Home Office failure to accept other types of
evidence of domestic violence is a very common problem. There
is no good reason why findings of fact or evidence from agencies
other than women's refuges or organisations, should not be accepted
as cogent and credible. In the absence of evidence, a statement
setting out the reasons why such evidence is absent, should be
sufficient. We are of the view that as long as women are able
to establish that they are victims of domestic violence, it should
not matter what form that evidence takes.
RECOMMENDATION
All forms of evidence must be accepted. The
list of evidence that is permissible should not be closed. All
types of evidence of domestic violence, including victim and witness
statements, findings of fact by immigration adjudicators and the
family courts, and reports from all statutory and voluntary agencies,
should be accepted as proof under the domestic violence rule.
The Home Office should focus more on whether domestic violence
has been established rather than on whether the correct type of
evidence is submitted. In other jurisdictions there is no stipulation
as to what form the evidence must take as long as an applicant
can establish a prima facie case of domestic violence.[34]
4.4 Shifting the goal posts and poor decision
making
Ms K: came to the UK on
a spousal visa to join her husband. Ms K experienced violence
and abuse, was denied food and kept isolated in the house. She
did not have access to the telephone. Within three months of her
arrival, she was thrown out of the family home and sent to live
with an aunt who also ill-treated her and allowed her husband
and his family to continue to visit and abuse her. Eventually,
with the help of a passer by, Ms K contacted the police but they
failed to assist her. They did not find her safe alternative accommodation
and she was forced to return to her aunt's house. Ms K was allowed
to work, and following a particularly nasty assault on her, she
informed her employers who contacted SBS.
Ms K made an application to stay in the UK, but unfortunately
her solicitors did not disclose domestic violence but instead
argued that her marriage was subsisting. This application was
therefore refused. The matter went to appeal and the adjudicator
found Ms K to be a credible witness and made a finding of fact
that she was a victim of domestic violence, the cause of her marital
breakdown. The case was referred back for further consideration
to the Home Office. However, she was refused stay on the grounds
that she had not provided the required evidence. Her application
was certified which precluded a further right of appeal. Permission
for judicial review was also refused, compelling Ms K to make
a fresh application on human rights grounds. She was then detained
and kept in a police cell for three nights. She was then taken
to Yarlswood Detention Centre and only released following a bail
hearing. SBS was forced to campaign on her behalf and eventually
she was granted indefinite leave to remain, outside the immigration
rules.
Cases like that of Ms K and others cited above,
point to the poor quality of initial decision making at the Home
Office. Despite the domestic violence rule, the Home Office appears
to simply shift the goal posts or fails to adhere to the spirit
of the rule.
Post separation domestic violence: The
failure to understand the nature of domestic violence, for example
that post separation violence is often a part of a continuum of
violence experienced by many victims, is a frequent problem with
Home Office decisions. A considerable body of research shows that
many women experience further and escalating violence following
separation. Indeed they are at greatest risk of violence at the
point of separation. Yet this understanding is not extended to
women who have unsettled status and who report incidents of post
separation violence. Even though their representations often contextualise
post separation violence within an ongoing abusive relationship,
their applications are almost always rejected on the grounds that
they have not demonstrated that the violence occurred whilst the
relationship subsisted. In almost all cases, such decisions result
in further legal challenges, which are eventually won.
Reporting violence outside of the relationship:
Many applicants report domestic violence only after they have
left an abusive relationship but they are also rejected by the
Home Office on the grounds that such reports should have been
made during the existence of the relationship! Such an attitude
on the part of the Home Office displays a complete failure to
acknowledge that women, who are imprisoned, traumatised and living
in fear, will find it impossible to report violence whilst still
living with their abusers. Such a response also amounts to a gross
distortion of the domestic violence rule, which does not stipulate
how and when women should report violence but merely asks that
evidence of domestic violence is provided. The extent of awareness
about women's experiences of domestic violence and their response
to it—which exists for women in the wider community—is
clearly denied to women who have immigration problems.
In the case of Ms F above, when an application
was made under domestic violence rule, the Home Office responded
with a request for further evidence that Ms F had lived with her
husband. SBS challenged this by stating that she had satisfied
the evidential requirement (she reported to the police and her
GP) and demonstrated that the violence occurred during the probationary
period and that it was the cause of the permanent breakdown of
the marriage.
Definition of Domestic violence: Some
Home Office decisions defy belief! In one case, a woman was refused
indefinite leave to remain under the domestic violence rule because
she had been subjected to violence not from her husband but his
parents. On entry in the UK under a spousal visa, her husband
refused to collect her at the airport and she was forced to live
with her in-laws. Her husband wanted nothing to do with her. The
husband's neglect was not considered to be abuse, although his
behaviour clearly amounted to emotional abuse. Moreover, his failure
to protect her from her in-laws, who had virtually imprisoned
her in the family home, was not recognised as abuse. Yet the definition
of domestic violence adopted by a range of agencies from the judiciary,
the police to the government itself, includes psychological, physical,
sexual, financial or emotional violence or abuse between partners
or family members.[35].It
would appear that the Immigration and Nationality Department makes
decisions based on its own (flawed) understanding of what constitutes
domestic violence which is at odds with the rest of the Home Office
and indeed the rest of society.
Detention: The practice of detaining
women with or without children who are already traumatised by
their experiences of domestic violence and who have no history
of evading the Home Office, is also to be deplored. The sensitivity
shown to abused women in the wider society, where good practice
is encouraged, is not shown to women with immigration and asylum
problems. We believe that such problems stem from a systematic
culture of disbelief which exists within the Home Office. Any
report of domestic violence is treated with suspicion and women
are refused stay and instead detained.
Delays: Delays in making applications
often works against women, even though their reasons may be to
do with lack of language skills, being ill advised by questionable
immigration practitioners, and lack of awareness of their legal
rights. Such women ought not to be penalised for their inability
to overcome considerable obstacles in making applications to remain
in the UK.
Delays in decision making by the Home Office
even in those cases where the requisite evidence is provided,
exacerbates the hardships faced by women who cannot access public
funds or accommodation. At present, the Home Office takes three
months to make a decision.
In our view, a significant number of Home Office
decisions in cases involving domestic violence are flawed and
inconsistent. Many are refused, even though there is clear evidence
to show that women have entered their marriage in good faith and
have been victims of domestic violence. It is hard not to come
to the conclusion that such decisions are made for no other reason
other than to frustrate and deter the applicant. A large proportion
of applicants are compelled to appeal or mount other legal challenges
before they are granted stay. A large number of our cases are
eventually won but only after considerable public funds have been
expended.
Legal Aid: Immense difficulties with
accessing reputable solicitors who are legally aided have greatly
contributed to the problems women encounter in ensuring that quality
representations are made. All too often, poor representations
by immigration practitioners result in unacceptable hardships
to the women concerned and contribute to the poor quality of decision
making at the Home Office, resulting in injustice.
RECOMMENDATIONS
Domestic Violence applicants, who do not
qualify under the current domestic rule, should be granted stay
outside the rules as a matter of good practice. We believe
that the introduction of the domestic violence rule was an attempt
to recognise the devastating impact that immigration control has
on women who experience domestic violence. Women who have clearly
experienced violence but who do not qualify under the rules, should
not be afforded any the less recognition or protection. Usually
through no fault of their own, they are unable to report violence
or do not possess the requisite type of violence. In these instances,
in the absence of further amendments to the domestic violence
rule, they should be allowed to remain in the UK outside the immigration
rules, provided they establish that they are victims of domestic
violence. They should not have to rely on further legal challenges.
No detention: Women and children who
have experienced domestic violence should never be detained unless
they have a history of evading the Home Office. Unwarranted detention
only adds to the trauma experienced as a result of domestic violence.
Such a practice cannot be acceptable or defensible except in the
most exceptional circumstances.
Delays should not be penalised: Domestic
violence victims who apply to remain in the UK should not be penalised
for delays in making an application, where there are good reasons
such as lack of access to sound advice and representation, lack
of English, fear of being removed or of further violence or mental
health problems.
Adopt good practice: The Immigration
and Nationality Department should be consistent in their handling
of domestic violence cases and adopt good practice which is consistent
with that adopted by the Home Office generally and by other statutory
agencies. Also where full representations on domestic violence
have been made, decisions should be made within two weeks of receiving
an application.
Abolish the two year probationary period:
At the same time that the domestic violence concession became
a rule, the government extended the probationary period from one
to two years. In our experience, this has had the effect of prolonging
the suffering of women who experience violence in their marriage
and has made it even more difficult for them to contemplate reporting
the violence or leaving a marriage. Many women become pregnant
or have children. Out view is that since all marriages between
foreign nationals and British nationals are subject to in depth
screening in any event, the requirement that they endure a probationary
period at all, let alone for two years, is punitive and unnecessary.
We therefore call for the two year probationary period to be abolished.
Legal Aid: Adequate levels of legal aid
must be available if problems of poor legal representation and
poor decision making at the Home Office are to be avoided. There
is no reason why the Home Office cannot work with other government
departments to ensure that legal aid provision is adequate in
immigration cases.
5. CONCLUSION:
A VIOLATION OF
HUMAN RIGHTS
The Domestic Violence Act 2004 and other policy
measures in the UK reflect a growing awareness at the state and
cultural level that violence against women is a crime and a fundamental
violation of women's human rights. But to be meaningful, such
awareness and protection must be afforded to all women, irrespective
of race, ethnicity and immigration status.
The failure to extend the domestic violence
rule to all women has the effect of breaching the human rights
of women with insecure immigration status as set out in a number
of the international treaties that the UK is a signatory to, including
the Convention on the Elimination of All Forms of Discrimination
Against Women and the European Convention of Human Rights incorporated
into the Human Rights Act 1998. In particular, there are breaches
in respect of the right to life, freedom from inhuman and degrading
treatment and the right to family life (for example, the right
to be accommodated with their children when leaving violent situations).
Moreover, to ignore the plight of immigrant women subject to violence
makes the law discriminatory in its outcome, since the effect
is to render some women worthy of protection, but not others.
The most severe indictment of the current policy
on "no recourse to public funds" is that it aggravates
a woman's sense of dependency, worthlessness and humiliation.
Women are stripped of their human dignity and are forced to remain
in violent relationships or feel grateful for any protection that
should be their right. It cannot be the intention of the creators
of legislation, policies and guidelines on domestic violence,
to render the most vulnerable sections of our society completely
powerless and at risk of further violence and degradation.
6. SUMMARY
— The domestic violence rule should be
extended to all women subject to domestic violence and immigration
control.
— That all types of evidence of domestic
violence should be accepted as sufficient proof under the domestic
violence immigration rule, including victim and witness statements,
court decisions and determinations such as the Immigration Adjudicator
and the Family Courts, and reports made to statutory and voluntary
agencies.
— All women who are subjected to domestic
violence and immigration control should be exempt from the restriction
on public funds.
— The exemption is triggered when an application
to remain in the UK is made which establishes a prima facie
case of domestic violence or where a statement giving reasons
why the required evidence is not available, is provided.
— The applicant should be entitled to all
non-contributory benefits including income support; income based
job seekers allowance, job seekers allowance, housing benefit
and council tax benefit, as well as housing under the Housing
Act 1996. The entitlement should apply until the determination
of the application to remain in the UK, including any appeals
against refusal or judicial review proceedings.
— In cases where the applicant has been
sponsored to enter or stay in the UK, money paid out in benefits
and housing costs can, at the discretion of the Secretary of State,
be retrieved from the sponsor, unless there is risk of further
violence or reprisals to the victim and/or her family in the UK
or abroad. The benefits agency must properly consult the victim
to assess the level of risk of further violence or reprisals,
and no prima facie evidence of the possibility of further violence
or reprisals will be required to prevent the recovery of costs.
The costs could be recovered from the sponsor, where the sponsor
perpetrates, incites or fails to take reasonable steps to prevent
domestic violence.
— In the short term, the government should
set up a special fund for those subject to domestic violence and
who do not have a settled status for the purposes of covering
accommodation and living costs.
— The two year probationary rule should
be abolished.
— The Home Office must fully recognise
gender persecution as ground for asylum and humanitarian protection,
and implement the gender guidelines.
— The National Asylum Support Service (NASS)
must protect and support women subjected to domestic violence
by providing them access to safe housing, including within refuges,
and specialist women's domestic violence advice, advocacy and
support services.
— Domestic Violence applicants, who do
not qualify under the current domestic rule, should be granted
stay outside the rules, as a matter of good practice.
— Women and children who have experienced
domestic violence must never be detained unless they have a history
of evading the Home Office.
— Delays in applications to remain in the
UK for good reason should not be penalised.
— The Home Office must adopt a consistent
approach to domestic violence which reflects good practice in
other government departments and statutory agencies.
— The 18 year age requirement for marriage
to foreign nationals should be abolished.
— The provision of legal aid should be
adequate and more widely available. Sound legal advice and representation
will facilitate efficient and proper decision making in the Home
Office.
Pragna Patel
17 March 2006
13 Southall Black Sisters, founded in 1979, is a leading
black woman's organisation tackling violence against Asian, African
and Caribbean women. We provide a resource centre offering direct
services to women and children escaping domestic/gender violence
and undertake campaigning, educational, policy and research work
on these issues. We deal with over 2,000 cases and enquiries annually
from across the country and possess a nationally acknowledged
expertise on South Asian women and domestic violence. However,
while most of the women who come to us are from South Asia, there
are also a significant number from African communities, particularly
Somali, and some from Caribbean, Arab, Irish and East European
backgrounds. We are one of the oldest and most experienced black
women's organisations dealing with domestic violence in the UK. Back
14
See for instance Appendix 2 for an account of our campaign to
reform the "no recourse to public funds rule". Back
15
Para 289A-289C, HC 395 (Immigration Rules). Back
16
Safety and Justice, The Government's Proposals on Domestic Violence
(Home Office: London, 2003). Back
17
On 26 July 1999, Margaret Moran MP raised a question in the House
of Commons about the purpose of the (then) domestic violence concession.
In reply the Home Office Minister-Mike O'Brien stated: Back
18
". . . we are asking local authorities to be mindful that
some victims of domestic violence could have specific needs for
care and attention and/or have dependent children, which may make
them eligible for assistance under section 47 of the NHS and Community
Care Act, the Local government Act, S2 Children Act 1989 or other
relevant legislation." Local Authority Social Services Letter
(30 January 2006). Back
19
Safety and Justice, p 43. Back
20
Research indicates that Asian women are up to two or three times
more likely to commit suicide than women in the general population.
They also have a disproportionately high rate of attempted and
contemplated suicide. VS Raleigh, Suicide Patterns and Trends
in People of Indian Sub-Continent and Caribbean Origin in England
and Wales (1996); D Bhugra et al, Attempted Suicide in West London,1.
Rates across ethnic communities and Attempted Suicide in West
London 11. Inter-group comparisons (1999); Merrill et al, Asian
Suicides (1990) and Ethnic Differences in Self-poisoning. A comparison
of Asian and White groups (1986). Our experience shows that this
pattern of suicide and self-harm continues and is caused by domestic
violence and oppressive practices in the family. Multi-agency
homicide reviews by the Police also suggest that women from minority
communities also have a high rate of domestic homicide. Back
21
In Denmark women who have to leave a marriage due to domestic
violence are permitted to apply for a residence permit in their
own right in accordance with a provision created under the Alien
Act in 1996. Women who make such an application are entitled to
full income and housing benefits for themselves and dependants.
From 1 July 2002 the Danish Government can recover these costs
from the spouse until the marriage is dissolved. Back
22
In Canada, spouses automatically become permanent residents on
arrival as there is no probationary period. Spouses whose marriages
break down due to domestic violence are entitled to emergency
housing and living costs. Costs are retrieved from the sponsor,
provided there is no risk of further reprisals against the victim
or dependants. This principle is applied across Canada although
there is minimal variation in application across states and territories. Back
23
In the USA, the 1994 Violence Against Women Act introduced provisions
to battered immigrants to apply for permanent residency in the
US if they were subjected to abuse by the US based spouse or parent.
The Personal Responsibility and Work Opportunity Reconciliation
Act, 1996 as amended by the Illegal Immigration and Immigrant
Responsibility Act, 1996 entitled battered immigrants to obtain
access to domestic violence shelters and depending on state policy
to income maintenance, nutrition assistance and health care pending
an application under VAWA 1996. Maintenance costs are retrieved
from the sponsor as in Canada. Back
24
According to federal law and orders issued by the Attorney General
of the USA. Back
25
The trigger for access to refuges and living costs in Austria
is when any women irrespective of immigration status applies for
an injunction, issues divorce proceedings on the basis of the
violence of the Respondent or obtains a report from a social institution
confirming she is a victim of domestic violence. Back
26
Safety and Justice, see Part 4: Support, pp 42-46 Back
27
Black and Minority Women in the UK, The Fawcett Society,
February 2005. Back
28
Safety and Justice, Part 4, pp 45-46 Back
29
Summary of Responses to Safety and Justice: The Government's
Proposals on Domestic Violence, 2003 (Home Office, London), p
10. Back
30
Social Security Administration Act 1992; Immigration and Asylum
Act 1999; Immigration Rules HC 395, para 35. Back
31
Social Security (Immigration and Asylum) Consequential Amendments
Regulations 2000. Section 2. Back
32
In the US spouses and dependant parents can apply for indefinite
leave to remain in the US if they have been subjected to domestic
violence by the person who sponsored them, and the sponsor is
settled or has US citizenship. The US have also recently introduced
a "U" visa which is a three year visa granted to immigrants
victims of crime. This includes victims of domestic violence.
The only requirements are that the crime took place in the US
and the applicant will help or is likely to help with the investigation
and/or prosecution of the crime committed against them. The immigration
status of the perpetrator is irrelevant. The applicant can apply
for indefinite leave to remain at the end of three years. In Australia
the Domestic Violence Provision Act 1991 is available to spouses
and partners of those settled in Australia or who have Australian
citizenship, and to the spouses of migrants who have entered Australia
on business/skilled visa permits. Back
33
Under current Government policy, the Home Office will only accept
the following types of evidence to prove domestic violence: a
conviction, a caution or a civil non-molestation or protection
court order. If these are not available, more than one of the
following has to be provided: medical reports (from the hospital
or the GP), a civil court undertaking, police report, or letters
from social services or a women's refuge or a domestic violence
organisation (as registered with the Home Office). Back
34
See for example the Immigration and Nationality Act and rules
(INA) which codify provisions from the Violence Against Women
Act (VAWA), governing eligibility to benefits to abused migrant
women. See also the Battered Immigrant Women Protection Act of
2000 (BIWPA) which significantly amended the INA. Back
35
See for instance the "Association of Police Officers"
(ACPO) definition of domestic violence: "any incident of
threatening behaviour, violence or abuse (psychological, physical,
sexual, financial or emotional) between adults who are or have
been intimate partners or family members, regardless of gender
or sexuality" Back
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