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In a Report published today, the Joint Committee on Human Rights (JCRT) warns that the government could harm its international reputation by failing to ratify the Council of Europe Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention). The JCRT, concludes that the government’s work on tackling violence against women and girls abroad is not translating into its domestic policy.
The Committee highlights a number of concerns, identified by the AIRE Centre in submissions made to the JCRT last year, including the failure to provide adequate refuge spaces and specialist services for victims of violence against women and girls.
What are the main issues facing European Economic Area (EEA) migrants?
EEA nationals, who have rights of entry and residence stemming from Article 21 of the Treaty on the Functioning of the European Union (‘TFEU’), and who then victims of domestic violence, are frequently left in unsupported situations.
In the AIRE Centre’s experience many EEA nationals (and their children) who suffer domestic violence continue to be refused access to certain vital public funds in the UK on the grounds that they do not have a ‘right to reside’. This refusal leads to their exclusion from domestic violence refuges and from access to basic benefits. It also represents a serious threat to the lives and health, given that these women who, having lived for many months or years in the UK and in some cases having British Citizen children, are then faced with the choice of returning to an abusive partner or becoming homeless or destitute.
The situation is compounded by the fact that EEA nationals and non-EEA national family members do not benefit from the ‘Destitute Domestic Violence’ Concession which provides for a grant of indefinite leave to remain for third country nationals who were previously granted leave to remain under national immigration provisions.
Access to housing and other services
In order to enter a domestic violence refuge in the UK, domestic violence victims 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 Income Support. 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 claim benefits.
However under Regulation 10 of the Housing Benefit Regulations as amended by the Social Security (Persons from Abroad) Amendment Regulations 2006, 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. The same test applies, with minor modifications, to access to social housing and to Income Support and other relevant benefits.
Establishing the right to reside to the satisfaction of the UK immigration authorities or the DWP can be both a complex, and lengthy undertaking, requiring extensive fact finding and often having to litigate cases in the Courts. During this time the victim may be unable to support herself, giving rise to the risk that she will feel compelled to return to live with the abusive partner.
Additionally many EEA nationals or non-EEA family members who have experienced domestic violence will not be exercising a ‘right to reside’ under the terms of the current legislation. Abusive partners frequently forbid their victims from working; or 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’ as recognised by the current legislation and be able to claim the kinds of benefits that will allow her to enter a refuge.
EU nationals who are self-supporting may also have the right to reside in the UK. However again they are faced with administrative and legal difficulties, in that they are unlikely to be eligible for homelessness assistance as any request for support of this kind would suggest that they are not in fact self-supporting and therefore lead the UK authorities to feel they were no longer exercising Treaty rights.
Finally there is the issue of unmarried durable partners. Article 13(2) of the Citizens Rights Directive 2004/38 provides that the non-EEA spouse or civil partner of an EEA national can retain residence rights independent of the EEA national if domestic violence occurred while the marriage or civil partnership was subsisting. However the provision is silent on the rights of durable partners who suffer domestic violence and whose relationship subsequently breaks down. In practice, these individuals are found to no longer have a right to reside in the UK. In contrast under the Immigration Rules (Rule 289A), which apply to migrants in the UK other than those exercising EU free movement rights, provide that 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 (Reed v Netherlands)
Legal duties of UK
The UK is obligated, when implementing EU law, to adhere to the fundamental rights principles inherent in EU law and in the Charter of Fundamental Rights of the European Union. Such rights include the right to human dignity (Article 1), the right to life and to respect for physical and mental integrity’ (Articles 2(1), 3(1)) and that ‘[n]o one shall be subjected to … inhuman or degrading treatment’ (Article 4).
The unclear residence rights of EEA nationals who suffer domestic violence, and which means they are in a much more precarious situation than say British victims of domestic violence, would also appear to conflict with the notion of Union citizenship as the ‘fundamental status’ of EU citizens (Article 20 TFEU). This is intended to ensure that EU citizens are treated the same way as British Citizens when they are in the UK.
Articles 2 and 3 of the European Convention (ECHR) similarly confirm the right of all individuals in the UK to life and to freedom from inhuman or degrading treatment. This has been held to include a failure, intentional or otherwise, to protect individuals in its territory from severe domestic violence (Opuz v Turkey) or toadopt and enforce laws that are capable of protecting victims of violence (Mudric v the Republic of Moldova). Additionally, State’s authorities can be in violation of Article 8 of the ECHR when they leave a domestic violence victim ‘for a prolonged period in a position in which they fail [ ] to satisfy their positive obligations to ensure her respect for her private life’ (A v Croatia). Finally differential treatment on the basis of immigration status in respect of fundamental rights can violate Article 14 ECHR as discrimination on the ground of ‘other status’ (Hode and Abdi v the United Kingdom)
The Committee on the Elimination of Discrimination Against Women (CEDAW)
CEDAW had already highlighted the UK’s discrepant practices in its Seventh Periodic Report on the UK, stating at paragraph 56:
“The Committee ………. remains concerned that, under the “no recourse to public funds” policy, women with insecure immigration status continue to have no access to State support. While noting that the State party has announced a concession for women who are victims of domestic violence, the Committee is concerned that the concession applies only to women who have entered the State party on spousal visas and that this has the potential to trap women in violent relationships.”
The Committee recommended that the concession under the “no recourse to public funds” policy should be provided to all women who are subjected to gender-based violence and exploitation. It also said that access to justice and health care should be provided to all women with insecure immigration status, including asylum seekers, until their return to their countries of origin (paragraph 57). None of these recommendations have yet been acted upon by the UK government.
The Council of Europe Convention
As the JRCT says, ratification of the Istanbul Convention would help the UK come closer towards meeting its obligations owed to victims and potential victims of violence.
The definition of violence against women in the Convention for instance covers all acts that occur within the family or domestic unit or between former or current spouses or partners, whether or not the perpetrator shares or has shared the same residence as the victim’ (Article 3(b), emphasis added). This definition, if fully and properly applied, would cover cases of durable partners, cases of domestic violence perpetrated for example between parents and children and it would also appear to cover situations where dependant immigration status is used against the victim in relation to getting adequate financial support from authorities.
Article 4, contains a specific non-discrimination provision. This obliges State Parties to the Convention to ‘condemn all forms of discrimination against women’ and in particular to abolish ‘laws and practices which discriminate against women’ (Article 4(2)). As noted previously there are at present a number of legislative and administrative practices in the UK which women victims of violence find difficult to comply with, including in the field of immigration, asylum and social security and housing. An appropriate gender based approach to such cases by individuals trained in the issues of gender based violence and presentation of victims, will alleviate some of the negative decisions currently made.
Finally the Convention goes on to detail the State party’s obligations to protect victims of violence, covering general support services, including legal and psychological counselling, financial assistance, housing, education, training and assistance in finding employment that should be provided to a victim of violence. It also provides for the right of victims to claim compensation from perpetrators and from State funded health and social schemes in cases where victims have sustained serious bodily injury or impairment to health.
Conclusions
Similar to the concerns expressed around the Modern Slavery Bill, a more victim-centred approach needs to be adopted towards gender based violence. Such a shift in emphasis would ensure that women who have suffered domestic violence (and their children) would then be legally entitled to safe and secure accommodation, and provided with all necessary support and assistance in accordance with the Istanbul Convention. To continue to drag its heels would lead to the conclusion that the government is again, when it comes to protecting women and girls and fulfilling its international legal obligations, all talk and no substance.
