Domestic Abuse Bill

Written Evidence submitted by The AIRE Centre (Advice on Individual Rights in Europe) (DAB83)

to the Public Bill Committee on the Domestic Abuse Bill 2019 - 2021

1. The AIRE Centre (Advice on Individual Rights in Europe) is a specialist legal charity whose mission is to promote awareness of European rights and assist marginalised individuals and those in vulnerable circumstances in asserting those rights. The Centre has been running a specific legal project on gender based and domestic violence for ten years.

2. The AIRE Centre runs an advice line through which we provide written advice to individuals and their representatives on free movement rights under EU law. Our specialist project which provides these advice services to victims of domestic violence has noted the following recurring problems:

a. Spouses of European Economic Area (‘EEA’) nationals who have sought refuge after fleeing domestic abuse continually face great difficulty in establishing their right to reside for benefits purposes, mainly due to their inability to provide documentary evidence of the abuser’s exercise of treaty rights in the UK.

b. EEA national spouses of British nationals are frequently excluded from the current Destitute Domestic Violence Concession on the basis that they do not hold leave to remain in the UK as a spouse or partner under the Immigration Rules, and are often unable to establish alternative rights of access to social support under EU law.

c. There is a complete lack of support or access to financial assistance for domestic violence victims who are durable (unmarried) partners of EEA nationals, as defined under Article 3(2) of EU Directive 2004/38 (‘the Free Movement Directive’), unless they are EEA nationals themselves and are in a position to exercise their own treaty rights in the UK.

3. These written submissions refer specifically to Clause 53 of the Domestic Abuse Bill – support provided by local authorities to victims of domestic abuse – and take into account the amendments noted as tabled by the Public Bill Committee, published on 11th June 2020.

4. EU Directive 2004/38 on the Free Movement of EEA nationals has been transposed into the UK law through the Immigration (European Economic Area) Regulations 2016. Under these Regulations, EEA nationals and their family members, including spouses, civil partners and those durable partners who have been granted EEA family permits or residence cards, have a right to enter the UK and reside here for up to three months without restriction.

5. In order to reside lawfully in the UK for more than three months, an EEA national must show that he or she is exercising Treaty rights: for example, by being a worker, self-employed person, student, self-sufficient person with comprehensive sickness insurance or a permanent resident. Family members of EEA nationals have a right to reside in the UK as long as the EEA national from whom they derive their residence rights is continuing to exercise Treaty rights here. Under EU law, a marriage continues to subsist, even if the parties have separated, until there is a final decree of divorce (Diatta v Land Berlin, Case C-267/83).

6. Normally, non-EEA spouses and civil partners of EEA nationals who experience domestic violence during the marriage or partnership may retain a right to reside in the UK if, at the time of the divorce or the termination of the civil partnership, the EEA national is present in the UK and exercising Treaty rights here (see Article 13(2)(c) of Directive 2004/38/EC). This retained right of residence is confirmed in Regulation 10 of the Immigration (European Economic Area) Regulations 2016. However, Regulation 10 does not apply to durable partners, and it grants no rights to spouses or civil partners who have not yet divorced or terminated the civil partnership.

7. Under Clause 53 of the Domestic Abuse Bill, the Local Authority’s duty to provide support services to victims of domestic abuse is at present limited to those who are in ‘relevant accommodation’ (Clause 53(2)). The definition of ‘relevant accommodation includes refuges and other safe accommodation. However, in order to enter a refuge in the UK, EEA nationals and their family members are typically required to show that they will be able to pay for this emergency shelter with their own funds or by obtaining benefits such as Housing Benefit or Universal Credit. Most domestic violence victims who flee to refuges lack the resources to pay for this emergency accommodation themselves, and therefore have no alternative but to apply for benefits.

8. A key barrier to accessing a refuge or safe house when leaving an abusive relationship is the ‘right to reside’ test. In our work with victims of domestic violence we have found that if refused social assistance, many women face the impossible decision of having to choose between remaining with a violent partner or ending up destitute and homeless.

9. In general terms, for non-UK nationals and their dependents, a local authority will normally carry out an assessment to determine whether the provision of support or assistance under social welfare provisions is necessary to prevent a breach of their ECHR or EU law rights. In order to avoid a breach of the ECHR or EU law rights of an adult EEA national or an adult family member of such a person, local authorities have power to provide accommodation under other legal provisions such as the Care Act 2014. If it is assessed that there are no legal or practical barriers to return, a local authority does not have a duty to support an applicant who can return to their country of origin (Kimani v Lambeth [2003] EWCA Civ 1150). For EEA nationals, whether or not there is a breach of their EU law rights is generally assessed by whether there would be a breach of their treaty rights, and in practice this means that it is left to the EEA national to establish that they have a right to reside in the UK.

10. This situation is only partially mitigated by the EU Settled Status Scheme which has been implemented following Brexit. Under this scheme, EEA nationals and their family members who wish to remain in the UK after 30 June 2021 must apply for status under this scheme. Those who have resided continuously in the UK for five years or more are granted settled status under this scheme in the form of indefinite leave to remain, with an accompanying entitlement to access benefits and emergency accommodation. However, those with less than five years residence in the UK are granted pre-settled status which does not entitle the holder to social assistance and support. Those with pre-settled status are then required to establish alternative grounds on which they have a ‘right to reside’ in the UK and consequently an entitlement to access public funds.

11. Under Regulation 10 of the Housing Benefit Regulations 2006 (SI 2006/213) as amended by the Social Security (Persons from Abroad) Amendment Regulations 2006 (SI 2006/1026)), individuals can only claim Housing Benefit in the UK if they are able to pass a two-part test known as the ‘habitual residence test’. First, they must show that they are actually habitually resident in the UK, and second, they must show that they have a ‘right to reside’ here. In order to show that they have a ‘right to reside’ in the UK for benefits purposes, EEA nationals must show that they are exercising Treaty rights here, for example by working or being self-employed. The family members of EEA nationals, meanwhile, must show that the EEA national from whom they derive residence rights is present in the UK and exercising Treaty rights here.

12. The same test applies, with minor modifications, to access to social housing under the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 (SI 2006/1294). It also applies to Income Support, Universal Credit and other relevant benefits.

13. In many cases, establishing that a domestic violence victim and/or their EEA family member has been exercising Treaty rights in the UK is a complex and lengthy undertaking requiring extensive fact-finding and the litigation of complex legal issues. The need for expert advice, as well as the frequent need to request information from the UK Border Agency or the Department for Work and Pensions and other authorities regarding the abusive partner’s exercise of Treaty rights, often results in weeks or months of delay. During this time, the victim may be unable to support her/himself, giving rise to the risk that she or he will feel compelled to return to live with the abusive partner.

14. Although verification of the EEA national’s exercise of treaty rights can be made by the relevant government department through enquiries from one authority to another (as suggested by the UK’s highest court in Kerr v. Department for Social Development (Northern Ireland) [2004] UKHL 23), in practice these checks are never undertaken unless the victim has received specific legal advice and assistance prompting such action. The obligations placed on victims to provide evidence relating to the abuser’s exercise of treaty rights should be reconsidered and clarified as this currently remains a serious barrier to support.

15. Compounding these difficulties is the fact that many domestic violence victims who are EEA nationals themselves will also not be able to establish a ‘right to reside’ through exercise of their own treaty rights, as it is a common form of abuse and control for abusive partners to forbid their victims from working. Similarly, the physical injuries and serious psychological trauma domestic violence victims often suffer can temporarily prevent them from taking up economic activity until they have recovered. Indeed, the more severe the domestic violence is, the less likely it is that the victim will have a ‘right to reside’ recognised by the current legislation and be able to receive the kind of financial support that will allow her to enter a refuge and rebuild her life safe from violence.

16. Durable partners, as defined under Article 3(2) of the Free Movement Directive, face even more difficulties as they do not benefit from any continuing rights while separated as spouses do, but are left to establish their own independent status and residence rights. This is often an impossible situation for many victims, particularly non-EEA nationals who were in a relationship with an EEA national. Unfortunately, both EU and UK legislation is so far silent on the rights of domestic violence victims who fall within this category. In practice, these individuals are found to no longer have a right to reside in the UK. Under the Immigration Rules (Rule 289A), which apply to migrants in the UK other than those exercising EU free movement rights, foreign nationals who are residing in the UK as the unmarried partners of British citizens or settled persons are entitled to apply for indefinite leave to remain if their relationship breaks down due to domestic violence. This discrepancy between the partners of British citizens, and those of EEA nationals, stands contrary to the fundamental EU law principle of equal treatment as reflected in the decision in Netherlands v Reed C-59/85.

17. The ongoing difficulties relating to access to benefits and financial aid, and consequently to refuges and safe accommodation, remain problem areas that are frequently seen in the work of the AIRE Centre, and were raised in the consultation process last year. However, the Government’s response to the consultation of 11 June 2019 does not directly address these specific scenarios when considering the issue of support for those with no recourse to public funds (paragraphs 218-219).

18. The AIRE Centre invites the Public Bill Committee to consider further the issue of support specifically for EEA nationals, their family members, and others with insecure immigration status, with a view to establishing a minimum level of support that should be available as soon as someone is identified as a victim of abuse, or at risk of abuse, regardless of whether they have the requisite immigration status to establish recourse to public funds and gain access to a refuge or safe accommodation.

The AIRE Centre

June 2020