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The domestic violence concession: for the few, not the many

The domestic violence concession: for the few, not the many

The UK’s long-awaited Domestic Abuse Bill has reached the House of Lords stage of its progress towards becoming law. In the House of Commons, MPs had considered an amendment to lift the no recourse to public funds rule for migrant survivors of domestic abuse. This amendment was proposed to fill the void faced by many migrant women and men who are not eligible for the Home Office’s domestic violence concession due to being on the wrong type of visa. 

MPs said no (330 to 207) to this amendment, voting largely along party lines. Whilst many have been hailing the Domestic Abuse Bill as a “landmark” cross-party success, many black and minority ethnic-led specialist women’s services argue that it fails to account for one of the most vulnerable groups in our society: migrant survivors of domestic abuse who do not have recourse to public funds. 

What is the domestic violence concession? 

Survivors of domestic abuse who intend to apply for settlement under the Immigration Rules are eligible for three months’ leave to remain outside of the Rules. This scheme, formally called the destitute domestic violence concession, enables victims to access public funds to aid their escape and protection from ongoing abuse. Many will apply for the concession as a first step, before going on to make the full settlement application.

The concession was introduced in 2012 following persistent campaigning by Southall Black Sisters (an organisation which works to support African-Caribbean and Asian women against gender-related violence) and other organisations. The idea was to ensure that migrants were not forced to stay in abusive relationships because they did not have recourse to public funds.

The reality is that the concession has an extremely limited reach. It only applies to those who have been granted leave to enter/remain in the UK on a spouse visa.

Why are people not on spouse visas excluded?

Home Office policy on the domestic violence concession states that those applying must satisfy all of the following conditions:

  1.  the applicant was last admitted to or granted leave to remain in the UK as the spouse, civil partner or unmarried or same-sex partner of a British citizen, of a settled person, of a refugee or of a member of HM Forces who has served for at least four years (i.e. they were granted a spouse visa);
  2. the applicant’s relationship with their spouse or partner must have broken down as a result of domestic abuse;
  3. the applicant must be destitute and must not have access to public funds; and
  4. the applicant must intend to apply for indefinite leave to remain as a victim of domestic abuse under paragraph 289A, paragraph 40 of Appendix Armed Forces or section DVILR of Appendix FM.

Many migrant survivors are able to provide unequivocal evidence of their domestic abuse and destitution, but are excluded from the concession simply because they are not in the UK on a spouse visa. This leaves many survivors on other visas (such as the dependant of a student) reliant on their abuser for both financial support and for their visa security in the UK.

Those who initially entered the UK on a spouse visa but were subsequently granted some other form of leave to remain are also overlooked. The policy mandates that the applicant’s most recent leave to remain must have been as a spouse/partner, so it is not enough to say that the person had initially entered the country on a spouse visa. The policy doesn’t quite spell this out, but says on page 5 that “only those eligible to apply for leave under section DVILR of Appendix FM or paragraph 40 of Appendix Armed Forces are eligible” for the initial three-month concession. Those provisions, in turn, require the last grant of leave to have been a spouse or partner visa.

That means that the spouse visa restriction affects people applying for indefinite leave to remain as the victim of domestic abuse, as well as those applying for the three-month concession, as Free Movement reader Youssef describes:

My ex-wife falsely accused me of marital rape. I did 21 months lock-up in total between prisons and detention but walked out from the court found not guilty. The Home Office granted me six months’ discretionary leave. 

I made an application for ILR as a victim of domestic violence. The Home Office conceded that I’m a victim of domestic violence but pulled the criteria string against me.

They said that I don’t meet one criterion, that my last form of leave should have been a “spousal visa”. The six months’ discretionary leave they gave is now their reason I don’t meet the full set of criteria.

There has been some success in challenging these stringent eligibility requirements by survivors whose last leave was granted on a discretionary basis outside the Rules. Despite this, it remains extremely difficult to challenge their exclusion — it ordinarily has to be done by way of judicial review. Applicants must also be prepared for a lengthy legal battle with the Home Office and will need their lawyers to seek interim relief so that they are able to access financial support whilst they pursue justice.

What is the impact on domestic abuse survivors?

Survivors of domestic abuse on other types of visa are forced to choose between staying in their abusive relationships or facing destitution, homelessness and potential removal from the UK. There are concerns that domestic abusers are essentially exploiting the lack of recourse to public funds for these migrant men and women.

Case study from Migrant Voice

“I was seventeen when I first came to the UK. In Jamaica I lived with an overbearing stepfather and coming to the UK was an opportunity to escape that. I was young, and at that time I didn’t think about anything other than that I was free. It was a matter of freedom to me. But that all changed.”

Macarela* moved from Jamaica to the UK in 2002 to join her mother. 18 years on, she explains the emotional toll of living under the UK immigration regime, and in particular the impact of the no recourse to public funds condition.

As a mother of two British children, Macarela now has leave to remain as a parent, but beforehand she navigated the immigration system on a spousal visa tied to a partner she met whilst living here. That relationship soon turned abusive. Macarela explained to Migrant Voice how her then-husband wanted to control everything — and with a visa tied to his status and no recourse to public funds, he had the perfect leverage to do just that.

Macarela remembers how in 2013, after a series of miscarriages, she broke the news to her husband that she was pregnant again. “He said I should terminate the pregnancy, but I desperately wanted to keep the child. At the time, I was in the process of renewing my visa, and he would keep telling me that he’d call the Home Office and tell them that we were no longer together, that he wouldn’t be my sponsor and that they should send me back to Jamaica. Eventually we split, and I went through with the pregnancy on my own. He didn’t meet his daughter until she was five months old.”  

“There were times when we’d argue, and he’d get physically violent. So when the time came to apply again, I decided to do it myself. The Home Office did grant me the right to stay based on the fact I am the mother of a British child. But with NRPF I couldn’t even get child benefit for my daughter. I often had to work seven days a week, and my husband would ask for money too. He would transfer himself money from my account”.

“In the end, I realised I had to continue the relationship to provide for my kids. Because of Home Office policy, your morals vanish. Under normal circumstances, nobody would put up with the abuse, but it’s a different story when you’re dependent on someone with a British passport.”

“We stayed together, and I got pregnant again, but I knew our relationship wasn’t able to maintain anything else, and in February 2018 I decided I was done. But I thought to myself, what am I going to do? I’ll be a single mother of two, I normally work two jobs, but I need recourse to public funds. After having my second child, I put in an application based on the fact that I was destitute. I appealed to the Home Office in humanity. I said I have a small baby; I can’t work as much. But if you look at my history I have always worked. I had to appeal to whoever was reading as a mother and hoped that they were parents too. It was a long process, and I didn’t think it was possible as I had tried before, but this time it worked. When I saw the letter, I cried. It was a feeling I will never be able to explain.”

“I still have problems with the kids’ dad, from death threats to fake DNA tests, but fortunately Women’s Aid are helping me with a non-molestation order. The frustrating thing is, as a victim of domestic abuse, I’d have got my indefinite by now if I came to the UK as a spouse. But supposedly because I met him in the UK, it’s OK for me to go through all of that.”

“But I’m still grateful for where I am now. I know I’m not the only woman who has gone through this. I am not the only migrant. I am going through counselling and am trying to find myself instead of burying all this trauma, but if it wasn’t for recourse to public funds, I wouldn’t have been able to, and I had to be on my knees to get it. All I ask is that the Home Office think about people, about individual circumstances. We are all human at the end of the day.”

– As told to Natalie Shortall of Migrant Voice. Macarela’s name has been changed to protect her privacy. 

Some specialist women’s services have taken on the challenge of raising funds for women with no recourse to public funds. They are effectively having to provide support that the state has a responsibility to deliver, and often struggle to meet demands given the large number of women in this situation.  

The government continues to see migrant survivors of domestic abuse through the lens of immigration control. During debate on the Domestic Abuse Bill, safeguarding minister Victoria Atkins said that “alongside our duties to protect victims of crime, the Government are equally duty bound to maintain an effective immigration system”.

Given that the government’s commitment to protecting and supporting victims via the Domestic Abuse Bill, it is a grave concern that the Home Office refuses to expand eligibility for public funds under its domestic abuse policy — leaving many migrant survivors destitute or forced to remain under the control of their abusers. 

Sulaiha Ali

Suluiha Ali is a solicitor and supervisor at Duncan Lewis. She specialises in a wide range of immigration-related judicial review matters, with a particular interest in refugee law and immigration detention.

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