Immigration rule changes fail to protect vulnerable women

Dear Home Secretary.
We are writing to express our serious concerns about recent changes to the Immigration Rules, which introduced a requirement that applicants for settlement under paragraph 289A (the domestic violence rule) be free of unspent convictions. The changes, laid before parliament on 31 March 2011 in the Statement of Changes to the Immigration Rules HC908, took effect on 6 April 2011. We are deeply
concerned that this requirement has directly undermined the Government’s commitments to eliminate violence against women, set out in the Call to End Violence Against Women and Girls, and will force women to remain in abusive relationships.
The domestic violence rule offers a critical safety net to protect women from violence by enabling them to leave abusive relationships and regularise their status in the United Kingdom (UK). As you know, it was introduced to make sure that women who entered the UK on spousal visas and have been permitted to remain for two years before qualifying for permanent settlement are not trapped in abusive relationships because of concerns over their immigration status.
This Government has made real progress to ensure that the formal protection offered by the domestic violence rule becomes a reality for women who experience violence. In this respect, we have warmly welcomed the commitment made in the Government’s Call to End Violence Against Women and Girls: Action Plan that from April 2012, migrant spouses fleeing domestic violence will be given access to
benefits while their indefinite leave to remain claim is being considered. This important step recognises that without appropriate accommodation and support, the protection offered by the rule will remain illusory for many women.
The requirement introduced by HC908 that applicants under the domestic violence rule must be free of unspent convictions is a backward step that has undermined progress made in this area. It fails to reflect or address the realities that women who are eligible to apply under the domestic violence rule face, and is likely to force women to remain in abusive relationships.
Deterring women from applying
The Immigration Rules already include a discretionary ground of refusal, which can¬†be applied to any application, whereby a person can be refused settlement on the¬†grounds of their unspent convictions. The change brought in by HC908 imposes a¬†mandatory requirement and means that any applicant with an unspent conviction,¬†however minor, will be refused settlement under the Immigration Rules. The UK¬†Border Agency (UKBA) has assured us that ‚Äúin cases where there is a need to¬†protect a victim of domestic violence, there would be no question of requiring them to¬†leave the UK or remain in an abusive relationship because of a minor conviction‚ÄĚ and¬†that the ‚ÄúUKBA will continue to provide leave when needed to help protect women¬†and girls.‚ÄĚ1 However, we believe that such policy assurances outside the rules will¬†be insufficient: the rules themselves will deter women from coming forward and¬†applying.
From our experience, we are certain that this ambiguity will deter women who are in a violent relationship and have an unspent  conviction (however minor) from applying under the domestic violence rule owing to concerns about their immigration status, thereby defeating the very purpose of the domestic violence rule and rendering the protection it offers illusory. We also fear that knowledge of this new rule will be used by perpetrators to continue their abusive control of women and further trap them in violent relationships.
Domestic violence and criminal convictions
There are clear and yet complex links between experiences of domestic violence and criminal convictions. For example, more than half of women in UK prisons say that they have suffered domestic violence.2
We know from working with women survivors that perpetrators of domestic violence¬†often make false allegations about the victim of abuse to the police, which may result¬†in criminal proceedings against her and even a conviction. Women in this situation¬†can appeal against a conviction but may need to make an application for indefinite¬†leave to remain while the appeal is pending. We have raised this concern with the¬†UKBA, and have been assured that, ‚Äúin rare cases where there is a conviction that is¬†related to the domestic violence they [the applicant] have suffered, UKBA will¬†consider the case carefully to determine whether leave ‚Äď including possibly indefinite
leave ‚Äď should be granted outside of the Rules.‚ÄĚ3 We remain concerned that the¬†position in such cases is that the victim is not eligible for ILR under the Immigration¬†Rules. This is of particular concern given the inevitable complexity of such cases,¬†and concerns we have raised about the quality of UKBA decision making under the¬†domestic violence rule to date.4
We also have concern about the range of other situations which may lead to a woman obtaining a criminal conviction that is closely related to domestic violence. For example, a woman might be convicted for an act committed in self-defence, or for a minor offence related to her economic dependence on the perpetrator of abuse and poverty associated with the violence. A woman may be convicted of an offence closely related to domestic violence in her country of origin in circumstances where this would not occur in the UK (for example, because of the safeguards present in the British criminal justice system). Convictions from outside of the UK become spent
after the same period of time that would apply if the victim of domestic violence had been convicted in the UK and could therefore act as a barrier for women who have experienced violence in their country of origin as well as violence following their arrival in the UK.
The new requirement is so wide-sweeping that a woman would not be deemed eligible to apply under the domestic violence rule if she were to receive a minor criminal conviction for fare evasion on public transport, or shoplifting even if given an absolute discharge (which remains unspent for six months). Research published by Refuge in 2008 has set out how financial abuse is a common feature of domestic
violence situations. 89% of the respondents surveyed by Refuge reported ‚Äúeconomic¬†abuse‚ÄĚ5 as part of their experience of domestic violence.6 The research found that in¬†many cases economic abuse existed alongside verbal, emotional, sexual and¬†physical abuse, reinforcing and overlapping with other types of control. The reality of¬†domestic violence is that it is a key cause of women‚Äôs poverty and economic¬†marginalisation; women who experience domestic violence are likely to experience¬†financial abuse which may force them to commit minor criminal acts, such as¬†shoplifting, to sustain themselves and their children.
Evidence submitted by Southall Black Sisters (SBS) to the UKBA (1 April 2011) cited two cases where women had been falsely accused of violence and harassment by perpetrators. In one case, a vulnerable victim was charged with common assault when she pushed her abusive father-in-law away from her after having being held overnight in a police cell. She was persuaded to accept a caution by a police
interpreter, who said that she would not be able to leave the police station without¬†doing so. In another case, the woman, initially forced to leave an abusive husband,¬†received two harassment warnings from the police under the Harassment Act 1997¬†when she attempted to contact her husband for reconciliation due to destitution. In¬†it‚Äôs response to the SBS submission, the UKBA stated that while these cases would¬†not be affected as the women in question did not have criminal convictions, they¬†noted the ‚Äėgeneral point ‚Ķ and would expect that lessons learnt from dealing with¬†cases similar to the examples‚Ķ would help us [the UKBA] to identify victims of¬†domestic violence‚ÄĚ.7 Although neither of these cases led to a conviction, they¬†nevertheless illustrate the potential for vulnerable victims to incur criminal convictions¬†when either acting in self-defence or as a result of false allegations by perpetrators,¬†and the complexity of these cases.
Since this change to the Immigration Rules was announced we have been engaged  in a useful dialogue with officials in the UKBA who have given us the opportunity to express our concerns and who have endeavoured, but are unable, to respond adequately to them. On the 20 April we met with officials at the UKBA and outlined the concerns we have expressed here. The meeting was chaired by Nichola Smith
(Immigration Policy, Permanent Migration) who was accompanied by Anne Robertson (Immigration Policy) and Martin Stares (Immigration Policy, Criminality).
They understood that the crux of our objection to the rule was the fear that women would not come forward and make applications, and that the introduction of guidance would not prevent this. They did not dispute that this would be the effect of the changes as we did not dispute the numbers of women affected would not be large.
They also accepted that there is an incompatibility between the absolute commitment to eliminate violence against women and girls which is expressed in the Government’s Call to End Violence Against Women and Girls and Action Plan and the new requirement to be free from unspent criminal convictions at the time of applying under the domestic violence rule for settlement. They advised us that the
decision on how this incompatibility was to be resolved was for Ministers and would therefore be referred to you for a decision.
You have stressed your own and the Government’s position that no level of violence against women is acceptable. We urge you to uphold these commitments and amend the eligibility requirements under paragraph 289A of the Immigration Rules to reflect the reality of domestic violence, by removing the mandatory requirement that applicants are free from unspent criminal convictions.
Yours sincerely,
(signed by email) Sophie Barrett-Brown
Chair, Immigration Law
Practitioners’ Association
Denise Marshall
Chief Executive, Eaves
Pragna Patel
Director, Southall Black Sisters
Emma Scott
Director, Rights of Women
Address for correspondence:
Emma Scott, Rights of Women, 52-54 Featherstone Street, London, EC1Y 8RT.
Letter to Rt Hon Theresa May MP
Home Secretary and Minister for Women and Equalities
Minister for Women and Equalities
Ninth Floor, Eland House
Bressenden Place
London SW1E 5DU
4 May 2011
1 Letter received by Rights of Women from the UK Border Agency on 6 April 2011, Ref: CPT ‚Äď
DV and ILR ‚Äď 01/2011.
2 Women in Prison, http://www.womeninprison.org.uk/statistics.php.
3 Letter received by Rights of Women from the UK Border Agency on 6 April 2011, Ref: CPT ‚Äď
DV and ILR ‚Äď 01/2011.
4 Rights of Women recently made a freedom of information request to the UKBA to see what
percentage of their decisions under the domestic violence rule were successfully overturned
by the applicant on appeal. Between April 2009 and September 2010 the success rate on
appeal ranged between 61-69%. See the full dataset in Rights of Women, Focus on Women,
Issue 13, 2011, online:
http://www.rightsofwomen.org.uk/pdfs/Focus_On_Women/focus_on_women_issue_13_2011.
pdf.
5 This included interfering with education and employment, controlling access to economic
resources, refusing to contribute towards economic costs such as household bills and
generating economic costs such as through destroying clothes or property.
6 Sharp, N., ‚ÄėWhat‚Äôs yours is mine‚Äô: The different forms of economic abuse and its impact on
women and children experiencing domestic violence, Executive Summary, Refuge, 2008,
online: http://refuge.org.uk/policy-and-research/research-and-publications/economic-abuse/.
7 UK Border Agency response to Southall Black Sisters submission, in a letter dated 6 April
2011.c