7 Immigration and asylum
194. As already noted in Chapter 2, we received evidence
that immigration and asylum policy is developed separately from
policies to end violence against women and girls. In this chapter,
we will focus on two key issues within Chapter 7 of the Istanbul
Convention: Article 59 (residence status) and Article 60 (gender-based
asylum claims).
Residence status (Article 59)
195. Article 59 requires the UK to make sure that
victims of violence against women and girls are afforded protection
regardless of their immigration status (for example if their residence
status depends on a spouse). The Home Office leads on immigration
and asylum is of critical importance in this area.
Article 59—Residence status
1 Parties shall take the necessary legislative or other measures to ensure that victims whose residence status depends on that of the spouse or partner as recognised by internal law, in the event of the dissolution of the marriage or the relationship, are granted in the event of particularly difficult circumstances, upon application, an autonomous residence permit irrespective of the duration of the marriage or the relationship. The conditions relating to the granting and duration of the autonomous residence permit are established by internal law.
2 Parties shall take the necessary legislative or other measures to ensure that victims may obtain the suspension of expulsion proceedings initiated in relation to a residence status dependent on that of the spouse or partner as recognised by internal law to enable them to apply for an autonomous residence permit.
3 Parties shall issue a renewable residence permit to victims in one of the two following situations, or in both:
a where the competent authority considers that their stay is necessary owing to their personal situation;
b where the competent authority considers that their stay is necessary for the purpose of their co-operation with the competent authorities in investigation or criminal proceedings.
4 Parties shall take the necessary legislative or other measures to ensure that victims of forced marriage brought into another country for the purpose of the marriage and who, as a result, have lost their residence status in the country where they habitually reside, may regain this status.
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HOW WELL IS THE UK FULFILLING THE POSITIVE OBLIGATIONS
UNDER THE ISTANBUL CONVENTION?
196. Witnesses argued that victims with insecure immigration status
who are not eligible for legal aid were left with a choice of
remaining in a violent relationship or facing destitution.
[189] These women
were also routinely not able to access refuges as they were not
entitled to housing benefits. The Royal College of Psychiatrists
argued that the UK was not making sufficient efforts for women
to be afforded their rights under Article 59 of the Istanbul Convention.[190]
The Minister of State at the Home Office gave the following example
of his own experience of these concerns: "there was a lady
on a sponsored visa who had had an arranged marriage—not
a forced marriage, an arranged marriage—who had gone to
the police within a couple of weeks of coming here and made an
accusation of domestic abuse. She couldn't go back home—she
was on a sponsored visa—so where did she go while the police
investigated it? She went to a place of refuge, but she was not
entitled to any benefits. It is a really difficult area, and I
know the police are very conscious of that."[191]
197. Saira Grant, Legal and Policy Officer from the
Joint Council for the Welfare of Immigrants, argued that destitution
as a result of insecure immigration status was itself a risk factor
for violence against women and girls:
In many cases, women are sofa-surfing, the violence
is being perpetuated or they are going back into the situation
where the violence started, because they have nowhere else to
go. They are extremely fearful to regularise their immigration
status.[192]
198. Anna Musgrave, Women's Advocacy and Influencing
Officer from Refugee Council, whilst referring to destitute asylum
seekers, made the following contrast between the UK's domestic
and its international policies which need to be read across to
destitute women with insecure immigration status:
the Home Office needs to acknowledge—that
there is a gendered impact to destitution […] What is frustrating
is that that is acknowledged by other departments, and particularly
in the work that happens overseas. I was very interested to read
about DfID funding work that is around addressing the survival
strategies of women in post-disaster zones, specifically so that
they did not engage in those kinds of very dangerous survival
strategies. That acknowledged that that is what women are forced
to do in desperation, and yet in this country we have policies
and a system that is creating those same circumstances for a certain
group of women.
199. James Brokenshire MP, Immigration and Security
Minister, in supplementary written evidence told us:
Where a victim of domestic violence has no immigration
status in the UK, or is here with temporary leave dependent on
that of their spouse/partner, they should be encouraged to take
the steps necessary to regularise their immigration status. They
may do so, for example, by applying for indefinite leave to remain
as a victim of domestic violence if their leave is as the spouse/partner
of a British Citizen or a person settled In the UK, or by applying
for leave to remain on the basis of their private life or of their
family life as a parent.[193]
200. The Immigration and Security Minister also outlined
what women should do if they could not regularise their immigration
status: "where they are not granted a period of leave outside
the rules for the purposes of giving evidence in legal proceedings
against the perpetrator, they should make arrangements to leave
the UK."[194]
201. We are concerned that, during the time it
takes for a spouse suffering from violence to regularise their
immigration status, they are very often left facing destitution
or having to remain in a violent relationship. We find it worrying
that current Home Office policies leave people destitute during
the asylum and immigration process and that this in itself leads
to women being at a greater risk of being a victim of violence.
This is in contrast to funding being provided by the Department
for International Development to post-disaster zones which looks
specifically to address such survival strategies used by women.
We believe that this demonstrates the need for better co-ordinated
domestic and international policies across Government department
on asylum and immigration processes, as outlined in paragraph
27 of this Report. We also recommend that the Government address
the issue of who bears responsibility for providing refuge space
for women and girls who are victims yet may not be entitled to
benefits. We also recommend that the Government ensures that sufficient
financial provision is given to supporting these victims.
Gender based asylum claims (Article
60)
202. Article 60 of the Istanbul Convention requires
the UK to recognise that gender-based violence against women and
girls is a form of persecution, that victims are afforded refugee
status and that the UK must have gender-sensitive reception procedures
and support services for asylum seekers.
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Article 60—Gender-based asylum claims
1 Parties shall take the necessary legislative or other measures to ensure that gender-based violence against women may be recognised as a form of persecution within the meaning of Article 1, A (2), of the 1951 Convention relating to the Status of Refugees and as a form of serious harm giving rise to complementary/subsidiary protection.
2 Parties shall ensure that a gender-sensitive interpretation is given to each of the Convention grounds and that where it is established that the persecution feared is for one or more of these grounds, applicants shall be granted refugee status according to the applicable relevant instruments.
3 Parties shall take the necessary legislative or other measures to develop gender-sensitive reception procedures and support services for asylum-seekers as well as gender guidelines and gender-sensitive asylum procedures, including refugee status determination and application for international protection.
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203. The Government's Action Plan contains the following
four action points to make the asylum system "as gender-sensitive
as possible". The Home Office is the responsible department
for these action points:
a) Work with key stakeholders to improve the
processes for referring asylum seekers who are victims of sexual
violence to the appropriate services and signpost women and girls
to available information and advice;
b) Improve guidance and training within the
asylum system by enhancing the quality of the country information
on violence against women and girls available to asylum decision
makers; incorporating a violence against women and girls element
into credibility training and foundation training for new case
owners; and continuing work with Asylum Aid and other corporate
partners to develop a training DVD on managing asylum claims from
women.
c) Monitor how asylum interviewers and decision
makers handle gender-related issues on a six monthly basis, monitor
trends in performance over the longer term and address specific
gender related performance issues.
d) The Syrian Vulnerable Person Relocation (VPR)
scheme to provide emergency sanctuary in the UK for displaced
Syrians will prioritise survivors of torture and violence, including
sexual and genderbased violence, and women at risk or in need
of medical care.
204. In this section, we look at the following three
concerns raised by witnesses:
a) the use of the fast-track detention process;
b) the culture of disbelief amongst immigration
officials and the higher number of reversals of asylum decisions
for women than for men; and
c) a lack of gender-sensitive reception procedures,
including the use of male interpreters.
HOW WELL IS THE UK FULFILLING THE
POSITIVE OBLIGATIONS UNDER THE ISTANBUL CONVENTION?
Detained fast-track process
205. The Immigration and Security Minister told us
that:
the DFT [Detained Fast Track] process has operated
since 2003 for men and since 2005 for women. Cases are considered
for entry to the process following the initial asylum application,
based on the information taken from applicants during asylum screening
about the basis of their claim. An individual may enter the process
only if the claim appears likely to be decided quickly within
the fast track process (initially, within 10-14 days), and if
the case does not fit one of the published exclusion categories."[195]
206. One of the excluding criteria for asylum seekers
being judged suitable for the fast-track process published in
Government guidance in October 2014 is: "Those in respect
of whom there is independent evidence of torture."[196]
The Immigration and Security Minister said: "some…may
overlap with gender-based violence claims, such as those in which
there is independent evidence of torture, or in which trafficking
has been accepted, or in which there are reasonable grounds for
concluding that trafficking has occurred".[197]
207. The Immigration and Security Minister also said:
"The Government does not consider that the operation of DFT
is such that those who are, or who claim to be, victims of gender-based
violence are, as a category, unsuitable for DFT, according to
either national or international obligations."[198]
208. Witnesses, however, argued that the screening
process was not adequate and that guidelines for criteria for
detaining an asylum seeker were ignored.[199]
Natasha Walter, Director of Women for Refugee Women, said: "We
are very concerned about the way that women are screened into
the detained fast track, because this happens after the screening
interview. During the screening interview, officials are not meant
to elicit the details of the claim—why people are claiming
asylum—and yet they are then pushing people into the fast
track without knowing the full details of their claim."[200]
209. The Royal College of Psychiatrists also raised
concerns about the detained fast-track process regarding the implications
for detainees' mental health:
It is our experience that detention has a dramatic
and often longlasting effect of the mental health of traumatised
applicants. Additionally, re-traumatisation inhibits an applicant's
ability to give coherent accounts and therefore makes it less
likely they will be able to access protection. Detention inhibits
their access to psychiatric evidence which may have explained
their presentation. As a result the most vulnerable end up being
the least likely to be able to negotiate the process successfully
and obtain protection.[201]
210. We were concerned to hear that a request to
visit Yarl's Wood Detention Centre by the UN Special Rapporteur
on violence against women, its causes and consequences, Rashida
Manjoo, was not facilitated. The Commons Foreign Affairs Committee
said: "We find it surprising that the Home Office was unable
to facilitate a request, even at short notice, from a UN Special
Rapporteur to visit Yarl's Wood immigration detention centre.
It sets a dangerous precedent for other countries to follow suit
and has caused embarrassment to the UK."[202]
Culture of disbelief
211. Witnesses argued that there was a 'culture of
disbelief' within UK immigration and border services towards victims
of violence against women and girls despite good guidelines for
staff.[203] We also
heard evidence of the high number of reversals of decisions made
once claimants were able to access appropriate help and advice
within the community.[204]
The Home Affairs Committee has reported: "research shows
that women are less likely than men to receive a correct initial
decision on their asylum claim".[205]
The Immigration and Security Minister said: "Of the cases
the Government loses at appeal, some are because new evidence
comes to light after the original decision is taken, or because
the judge takes a different view on the applicant's credibility
from that taken by the Secretary of State".[206]
212. Black Women's Rape Action Project and Women
Against Rape told us: "Home Office officials routinely disbelieve
accounts of rape, citing delays in reporting. This is despite
case law we helped win which established that women may be unable
not unwilling to report rape because of trauma[207];
and despite the Home Office's own Gender Guidelines which state
that earlier non-disclosure should not be used as grounds to automatically
disbelieve women seeking asylum[208]."[209]
213. In response to these concerns, the Minister
for Crime Prevention said that the Government was: "seeing
how the training is working or not working through regular audits
of decisions in gender-based cases".[210]
In response, the Minister of State at the Home Office and the
Ministry of Justice said:
it is completely inappropriate and fundamentally
wrong in any modern society that someone is not believed because
they happen to be immigrant or an asylum seeker. If that is culturally
inside the Border Force, the Minister and I will have a conversation
in the morning about it […] If that is happening in the Border
Force then that is fundamentally wrong, and we will look at it.[211]
214. The Immigration and Security Minister, in supplementary
evidence, said:
The Government does not accept that there is
a 'culture of disbelief' […] In his report last year on Unaccompanied
Asylum Seeking Children, the Independent Chief Inspector of Borders
and Immigration specifically checked for any evidence of a culture
of disbelief amongst caseworkers who make age assessments in disputed
minors' cases. He clearly rebutted the view that there is a culture
of disbelief in these cases and praised asylum staff for their
cautious approach to age assessment and for giving the benefit
of the doubt when appropriate.[212]
215. The Immigration and Security Minister went on
to explain the training that immigration officials received:
In September 2014, a new course, entitled 'The
Psychological Factors Affecting Decision Makers', was piloted.
This aims to help to encourage decision-makers to reflect upon
the impact of the work they do in order to raise awareness of
the psychological factors affecting decision makers and to raise
awareness of potential risks - including vicarious trauma.[213]
216. We acknowledge the report by the Independent
Chief Inspector of Borders and Immigration but the concerns our
witnesses had regarding a 'culture of disbelief' were not connected
to age assessments. Natasha Walter explained that: "women
in the asylum process face […] double discrimination".[214]
She was referring to the discrimination they face first as asylum
seekers and secondly as women.
Gender sensitive reception
217. Witnesses argued that the UK did not have gender-sensitive
interpretation or gender-sensitive reception procedures. Saira
Grant, Legal and Policy Officer from the Joint Council for the
Welfare of Immigrants, told us about a case where : "The
interpreter there was a male interpreter, so she mumbled a few
answers and that went against her almost from the very start […]
she did ask for a female caseworker […] the guidelines say
she can have one if it is operationally possible."[215]
She also argued that women were often in a public area when disclosing
information or had their children present due to lack of childcare.[216]
218. The Equality and Human Rights Commission said
that victims of violence against women and girls were often being
housed in mixed accommodation.[217]
219. The Immigration and Security Minister said:
The Government has made significant progress
over recent years in improving the gender sensitivity of the asylum
system and in recognising the specific issues related to violence
against women. For example: provisions are in place for women
to request a female interviewer and interpreter; improvements
have been made to the screening environment to provide more privacy.[218]
220. Despite the Minister's assurances, we are
disturbed by the evidence we received that the routine use of
male interpreters, the operation of fast-track detention system
and the reported culture of disbelief within the Home Office all
result in victims suffering further trauma whilst seeking asylum
or immigration to the UK. We find this unacceptable.
221. Given the nature of the concerns raised during
our inquiry by NGOs and the medical profession regarding the detention
of victims, we are concerned that those who allege that they are
victims of violence against women and girls are being detained
through the fast-track process and recommend a review of the screening
process for this as a matter of urgency.
222. We recommend the Government amends the guidance
for interviews to raise the importance of making female interpreters
available for cases of violence against women and girls. The current
state of using them when 'operationally possible' is not satisfactory
and means that their provision is not high enough a priority.
The Government should also amend the guidance to make the responsible
authorities have a responsibility to provide crèche type
childcare at venues where screening takes place. Through the Inter-Ministerial
Group, the Government should monitor the training, the number
of reversals of decisions made, and the extent to which the guidance
for immigration officials is properly followed to ensure a change
of culture.
189 Q 89 (Saira Grant) Back
190
Written evidence from the Royal College of Psychiatrists (VAW0051) Back
191
Q 119 Back
192
Q 89 Back
193
Supplementary written evidence from James Brokenshire MP (VAWG
(14-15) 032) Back
194
Ibid. Back
195
Ibid. Back
196
Para 2.3, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/370322/Detained_Fast_Track_Processes_v6_0.pdf
[accessed 2 January] Back
197
Supplementary written evidence from James Brokenshire MP (VAWG
(14-15) 032) Back
198
Ibid. Back
199
Written evidence from Black Women's Rape Action Project and Women
Against Rape (VAW0046) Back
200
Q 89 Back
201
Written evidence from The Royal College of Psychiatrists (VAW0051),
Q 90, (Saira Grant). Back
202
Foreign Affairs Committee, The FCO's human rights work in 2014
(Sixth Report, Session 2014-15, HC 551) Back
203
Written evidence from The Royal College of Psychiatrists (VAW0051)
Back
204
Written evidence from Amnesty International (VAW0061) and Asylum
Aid (VAW0009) Back
205
Home Affairs Committee, Asylum (Seventh Report of Session
2013-14, HC 71) Back
206
Supplementary written evidence from James Brokenshire MP (VAWG
(14-15) 032) Back
207
R v SSHD ex parte Ejon (QBD) [1998] INLR Back
208
"The disclosure of gender-based violence at a later stage
in the determination process should not automatically count against
her or his credibility." Part 7.1, INTERVIEWING AND ASSESSMENT
OF CREDIBILITY, GENDER ISSUES IN THE ASYLUM CLAIM, 2010 Back
209
Written evidence from Black Women's Rape Action Project and Women
Against Rape (VAW0046) Back
210
Q 132 Back
211
Ibid. Back
212
Supplementary written evidence from James Brokenshire MP (VAWG
(14-15) 032) Back
213
Ibid. Back
214
Q 90 Back
215
Ibid. Back
216
Ibid. Back
217
Written evidence from the Equality and Human Rights Commission
(VAW0057) Back
218
Supplementary written evidence from James Brokenshire MP (VAWG
(14-15) 032) Back
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