Unlawful entrants can’t rely on domestic violence concession By Nicholas Webb

The domestic violence concession allows victims of domestic abuse access to public funds while they make an application for settlement. The High Court has now made clear that this concession only applies to those who are already on the route to settlement as a partner in the case of FA v Secretary of State for the Home Department [2018] EWHC 3475.

Victim of domestic violence with no UK visa

The claimant was a Sudanese woman married to a British national. Having had a previous UK family visit visa refused, she travelled from Sudan to the Netherlands on a Schengen visa in December 2014, living there and receiving frequent visits from her UK-based husband. Reading between the lines, it suggests the sponsor could not meet the requirements of Appendix FM and was trying another route so they could live together in the UK.

In August 2015, FA entered the UK showing her Netherlands residence card, passport and marriage certificate to the authorities before boarding the ferry. No-one checked her paperwork on arrival in the UK.

To escape domestic violence, FA fled the family home in January 2016. She sought help from Birmingham Social Service who in August 2016 helped her to apply for permission to stay in the UK under the domestic violence concession.  

It is not clear from the judgment if a lawyer or anyone regulated was involved with advising the claimant at this stage. If not, those advising the claimant may have broken the law. There was no need for there not to be a lawyer: legal aid is available for victims of domestic violence in immigration cases.

Refusal of victims’ benefits challenged

At any rate, the application was refused on the basis that FA had not entered the UK as a partner of a UK citizen under the Immigration Rules. On the face of the policy this was correct. By the time Mr Justice Murray heard the case FA accepted this, but argued that the failure to extend the concession to her was unlawful, as it:

• Was discriminatory under Article 14 of the European Convention on Human Rights read in conjunction with Article 8;

• Contravened Article 18 of the EU Victim Rights’ Directive taken with Article 24 of the EU Charter on Fundamental Rights (the rights of the child);

• Failed to safeguard and promote the welfare of children in the UK (she has two) as required by section 55 Borders Act 2009.

Before examining the grounds, the court considered whether FA had entered the UK lawfully under the EEA Regulations, finding she had not. Murray J also, correctly in my opinion, found that even if she had, she would still not qualify for the concession. That is because she would not qualify for indefinite leave to remain under the Immigration Rules as a victim of domestic violence. The short term scheme is not open to those who could not go on to qualify for the long term scheme.

36… FA cannot satisfy the terms of section DVILR. For that reason alone, she cannot succeed in this challenge simply on the basis (if accepted) that she entered the UK lawfully. She has no form of leave to remain that would qualify her for the DDV Concession.

Although not made explicit in the judgment, the EEA Regulations’ definition of family members and provision for victims of domestic violence in Regulation 10 mean that those relying on EU law rights should not need to apply to the DDV concession.

Scheme not designed to help migrant victims generally

On the Article 14 discrimination point, the judge found there was sufficient difference between those without leave and those on the route to settlement to justify the differential treatment :

46… The evils that the DDV Concession is intended to avoid are that the victim will fear to leave her abusive partner for fear of the loss of this potential route and that the abusive partner will use that fear as a further coercive tool. A victim, such as FA, who is not on a route to settlement, does not have that incentive to stay in an abusive relationship, and the perpetrator of violence does not have the threat of the loss of the potential route to settlement as a coercive tool.

All of which is a good argument for the Home Office finally extending the domestic violence rules to partners of refugees (not the concession, though, as they will already have access to public funds).

The ground relating to the EU Victim Rights Directive was dismissed on the basis the Directive is concerned with the protection of the rights of victims in a criminal context and does not have any specific application to the immigration rights of a victim.

The arguments under the rights of the child under the EU Charter and section 55 Borders Act were both dismissed for the same reasoning: the DDV concession applies to someone whether they have children or not. The judge confirmed, at paragraph 56, the arguments were fatally flawed from the start.

FA’s case is based on a misconception of the nature and purpose of the DDV Concession. It was never designed or intended to provide a general protection for victims of domestic violence. There is therefore no question of FA having been irrationally, unfairly or arbitrarily excluded from it.

FA has children who are British; the Secretary of State indicated in the course of the litigation that an appropriate application is available to FA under Appendix FM. It would seem that this would have been the most appropriate action to take from the start. Why this route was not taken, rather than time and money being spent on inappropriate argument, is not clear from the facts set out in the judgment.

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