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All criminal convictions to act as bar to settlement from today

All criminal convictions to act as bar to settlement from today

I have had to redraft this post, which had been intended to be a good news story about a positive development at the UK Border Agency and which I had scheduled for Monday morning. A nice start to the week, thought I. However, late last week it transpired that the Home Office gives with one hand but very much takes away with another, as we will see in a moment. For now, the original text of this post:

Some good news, for a change: the long running campaign to end the ‘no recourse to public funds’ limitation for victims of domestic violence seems to have succeeded. All credit to the Southall Black Sisters for yet again succeeding in a campaign that many will have thought doomed to fail. It was SBS that was behind the introduction of the domestic violence concession in the first place.

On 10 March 2011 the Home Office announced as follows:

“Overseas spouses and partners of UK residents who are forced to flee their relationships as a result of domestic violence will be able to access vital support services … Access to these services will be for a strictly limited period while the victim gathers evidence and makes a claim for residence based on the domestic violence, and while the UK Border Agency considers the application.”

See here for the full press release and here for details of the Sojourner Project which seems now to be a temporary stopgap.

The press release is a little light on details and does not explicitly state, for example, that the ‘no recourse’ condition will be completely removed or waived for affected individuals, or how this will be effected and how local authorities and other service providers will be notified in individual cases. The changes are said to come into effect in 2012 so there will no doubt be more details to follow in due course.

But not so fast! In a classic bit of poor drafting at the Home Office, Statement of Changes HC 863 announced a raft of changes to the rules. There was a clear technical mistake, which was pointed out to the Home Office. As a result, a new Statement of Changes has been introduced, HC 908, but with it some very bad news for victims of domestic violence. The following requirement has been inserted into paragraph 289A, and also the other settlement rules:

(v) the applicant does not have one or more unspent convictions within the meaning of the rehabilitation of offenders act 1974.

This unwelcome addition to the rules closes an escape route from domestic violence for any woman with any level of criminal conviction. Meanwhile, a woman with a criminal conviction still in an abusive relationship might succeed on human rights grounds (see below) and therefore has an incentive to remain in that abusive relationship.

The catch-all nature of the criminal convictions exclusion from settlement, introduced from 6 April 2011 by HC 863 and HC 908 for all or most categories of settlement as far as I can see, including family settlement, is an extreme step by the current Government. It is slightly easier to comprehend for economic migrants under the Points Based System, but is simply incomprehensible for family settlement cases. In a spouse case it means that a criminal conviction of any kind, no matter how relatively trivial, will either terminate the relationship by forcing the migrant spouse to depart these shores, or will force the British or settled spouse to leave their own country to continue the relationship. The exclusion also ignores the effect on any children of the relationship.

Inevitably, one would expect many human rights cases to succeed. No human rights application would normally be allowed by the UK Border Agency but those with the initiative and funds to take it further and access to a decent lawyer might well win on appeal or an application for judicial review. It looks like another example of deliberately marginalising those without access to the legal process, at a time when legal aid looks like it will be withdrawn for immigration cases such as these.

Free Movement
The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

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