One of our lawyers, Isabella Mosselmans, who is a founder of Here for Good, a charity which provides free legal advice to vulnerable EU citizens, has given an interview to the Independent on the risk to vulnerable EU citizens:
Last week, I received a refusal on a visa application for a client, married to a British citizen, who was a victim of domestic abuse in the UK. The domestic abuse culminated in her being abandoned abroad. We call this phenomenon “transnational marriage abandonment”. Southall Black Sisters describe it as
the deliberate removal of vulnerable migrant women from the protections of this country by their husbands and in-laws who discard them abroad as if they were disposable commodities. It is an extreme form of psychological abuse since it denies women access to justice in the UK. It amounts to a gross violation of dignity and human rights.
Transnational marriage abandonment was recently recognised as a form of domestic abuse in the Family Procedure Rules 2010.
My client, as many others, had been told by her husband and in-laws that they would go to her country for a 3-month holiday. Once there, her spouse took her and her British citizen child’s passports and left. They were effectively stranded abroad with no means of returning to the UK.
We applied for a visa for my client asking that she is granted indefinite leave to enter as a victim of domestic abuse. The application was refused.
What are the provisions for victims of domestic violence, and why do we need them?
The Immigration Rules make provision for partners of British or settled citizens to apply for indefinite leave to remain if they are in the UK on the basis of their relationship, and the relationship breaks down as a result of domestic abuse.
Provisions for migrant domestic abuse victims were first introduced in 1999, following campaigning by Southall Black Sisters. When the issue was debated in the House of Commons back in June 1998, the then Parliamentary Under-Secretary of State for the Home Department stated
when the overseas spouse becomes the victim of domestic violence during her first year here, she faces the prospect either of staying within that violent relationship or of being refused settlement if she escapes from it, because the marriage would then no longer be subsisting
The idea was that those migrants whose right to reside in the UK depended on their relationship with their British or settled spouse should be allowed to remain in the UK even after the relationship broke down, if the reason for the breakdown was domestic violence. If not, they would be faced with the impossible choice of staying in an abusive relationship to be able to remain in the UK on the one hand; or leaving the UK on the other hand.
Why do the rules not work for victims of transnational marriage abandonment?
Unfortunately, one of the requirements to be granted indefinite leave to remain as a victim of domestic abuse is to be in the UK at the time of the application. This means that victims of transnational marriage abandonment, who have been recognised as victims of domestic abuse, cannot make use of these provisions.
There is no rational reason not to allow victims of domestic abuse to apply for indefinite leave from abroad. When the provisions were first introduced, the Home Office accepted that individuals who came to the UK as partners, with an expectation to settle in the UK, should be allowed to stay even if their relationship breaks down because of domestic violence. Domestic abuse victims who are stranded abroad had the same expectations.
Once it is accepted that transnational marriage abandonment is a form of domestic abuse, the requirement to be in the UK at the time of application creates a fundamentally flawed system which prevents victims of domestic abuse to apply for indefinite leave on the grounds that…they are victims of domestic abuse!
Not being able to return to the UK also often prevents these persons from initiating, let alone engaging effectively with, family and criminal law proceedings. They may be prevented from seeing their children; claiming financial maintenance; or bringing their perpetrator to justice. On return to their country, they may be stigmatised and discriminated against for having been abandoned. An excellent study by the University of Lincoln on this topic highlighted how:
In the case of transnational marriages, abandonment is embedded within a pattern of domestic violence and coercive control exercised over the woman. Additionally, by strategically abandoning their wives in their home country and then filing for divorce in foreign courts, transnationally mobile South Asian migrant men make it almost impossible for their wives to participate in legal proceedings. These actions by husbands deprive women of their financial rights such as an equitable settlement upon divorce, child custody and recovery of dowry. The impact of abandonment also creates contexts for further forms of violence against women due to the stigma associated with divorce, women’s vulnerability within natal families and issues related to inheritance and residence arrangements within the natal home after divorce. This research shows that beyond the various processes of control and individual acts of harm that lead to and outlast the act of abandonment in transnational marriages, abandonment itself constitutes a form of violence against women. It is rooted in and results in gendered devaluation of women and is enabled by gender-blind transnational formal-legal frameworks, which construct abandoned women as an inferior class of citizens and as a category of women who can be abused and exploited with impunity.
Not allowing victims to return to the UK perpetuates this cycle of abuse, preventing them from access to justice and reparation, effectively cooperating with the abuser and allowing British citizens who have sponsored their foreign spouses to come to the UK to abuse of their position of power and be perpetrators of domestic violence with impunity.
What can the Home Office do?
Credit where credit’s due, some sympathetic Home Office caseworkers have assisted us in bringing stranded spouses back to the UK by allowing us to make applications outside of the rules. Typically, our clients would be granted visas valid for 1 month, 3 months or 6 months and, once in the UK, we would apply for indefinite leave to remain relying on the domestic abuse provisions. Those applications have generally been successful.
This is, however, a fundamentally unfair system, where only those few privileged persons who manage to get hold of legal representatives who manage to get hold of sympathetic caseworkers have a chance to return to the UK. Anyone familiar with the current immigration system will know that only a handful of people will fall in this category.
Even then, the recent refusal of my client’s application shows that relying on the discretion of sympathetic caseworkers does not always work.
There is, however, a very simple solution: amending the one sentence in the rule that requires victims of domestic abuse to be in the UK. This will open up provisions which already exist to protect victims of transnational marriage abandonment, and will show that the Home Office and British government are serious about their commitment to protecting victims of domestic abuse.
Following on from our recent commendation in The Law Society Excellence awards and our top rankings in Chambers and the Legal 500, we are very pleased to announce that we have again been named by The Times as one of the best 200 law firms in England and Wales.
Partner Barry O’Leary commented, “The best feedback we get is from our clients who let us know time and again the difference our works make to their lives, but we are of course also very proud that our work is recognised by such prestigious bodies”.
If you have an immigration or nationality law matter and would like to make an enquiry, you can find details here.
Wesley Gryk Solicitors LLP has been highly-commended in the Law Society’s Excellence Awards – the highest accolade for law firms in England and Wales.
The event in Central London – which attracted more than 1000 guests – is the most prestigious awards ceremony for solicitors in England and Wales. Professionals and their firms are recognised across a range of categories covering all areas of legal practice and business.
Wesley Gryk Solicitors LLP received a commendation in the Small Law Firm of the Year category.
Partner Barry O’Leary said ‘We are delighted that our work has been recognised in this way. It is our goal not just to represent our clients, but to affect change on a wider scale to the benefit of migrants. It is this philosophy that has led to this recognition of excellence from the Law Society. It reflects the excellence of all parts of our small firm.’
Law Society of England and Wales president Simon Davis said: “In such uncertain times, we must never forget the immense contribution that solicitors make to society. Our work is indispensable to upholding the rule of law.
“At the Law Society Excellence Awards, we come together to celebrate outstanding success in the sector.
“There are more than 180,000 solicitors in England & Wales: to be highly-commended is to be recognised as among the best of the best.”
When applying to naturalise or register as a British citizen, most applicants aged 10 years or older must show that they are “of good character”. On 14 January 2019, the Home Office published new guidance for its caseworkers to determine whether an applicant for British citizenship meets the good character requirement. This post will address the changes to the guidance, which generally apply to all applications made after 14 January 2019.
The overall approach in the guidance remains broadly the same. The Home Office will assess whether an applicant has engaged in any of the non-exhaustive list of behaviours contained within the guidance within the previous 10 years; if so, an applicant “will normally” be refused. The Home Office follows strict guidance for those who have criminal convictions. It remains the case that anyone sentenced to four or more years in prison will normally see any application for citizenship refused. Those sentenced to more than one but less than four years in prison will normally see any application refused within 15 years of the sentence and those sentenced to less than one year in prison will normally be refused within 10 years of the sentence. Various specified non-custodial sentences will normally see an application refused within three years from the date on which the sentence occurred. Those who are considered “persistent offenders”, who have committed offences causing serious harm or are recorded on the sex offenders register will similarly see their applications normally refused.
This guidance applies to any applicant aged over 10 years old. In 2017, the Independent Chief Inspector of Borders and Immigration raised concerns that the existing good character guidance was being applied to adults and minors in the same manner without giving due regard to the best interests of children. The Home Office also faced criticism in the media by campaigning groups, such as the Project for the Registration of Children as British Citizens and the Runnymede Trust, who argued that it is cruel and inappropriate to subject adults and children to the same guidance.
After committing to amend the good character guidance by December 2017, the Home Office has belatedly made limited changes to highlight that caseworkers must treat the best interests of children as a primary consideration as well as consider any mitigation relevant when making a decision on whether a child is of good character. The limited scope of the amendments have led campaigners to describe them as “irresponsible” and “in complete disregard” to the duty to safeguard the best interests of children, noting that “evidence suggests that it is racially discriminatory and effects vulnerable BME children and adults disproportionately”.
The guidance also spells out further “immigration related issues” which will normally see an application refused. Many of these remain the same from the previous guidance, including cheating or using deception in English language and life in the UK tests, prosecution for false statements in support of a citizenship application or prompting their referee to make a false statement, illegal entry to the UK, assisting illegal migration, hiring workers without permission to work in the UK and deprivation of UK citizenship previously granted.
The new guidance spells out additional grounds of refusal. The first, and likely most significant, change is the introduction of the ground of ‘overstaying’. Anyone who overstayed their leave to remain by 28 days prior to 24 November 2016, or 14 days after 24 November 2016, now will normally see their application refused unless they can show that the period was not their fault. This, in essence, sees the guidance incorporate the same restrictions as the qualifying residence test for determining eligibility for naturalisation, but counts back 10 years from the date of application.
The guidance also introduces a ground of refusal for “absconders”. Any applicant who, in the previous 10 years, failed to report to the Home Office when required to the extent that the Home Office did not know their whereabouts will normally see their application for citizenship refused on grounds of absconding. The guidance on working without permission has also been subtly changed. Previously, the ground was only satisfied if the Home Office had “detected” the applicant working without permission. The new guidance simply states that if “the person has worked” then their application will be refused, which may include circumstances where an applicant is refused on this ground even if they were not encountered working.
The guidance is not more restrictive across the board, however. It includes sensible guidance in the section on illegal entry for those who entered as asylum seekers. There is no lawful route of entry for those seeking to come to the UK to claim asylum. The Refugee Convention states that refugees should not be punished for entering unlawfully so long as they travelled here directly from their country of origin and presented themselves to the authorities without delay. This has been incorporated into the guidance. One cause for concern is that the Home Office has interpreted “without delay” as meaning that the asylum claim was made within four weeks of entry. This is more concerning because the Home Office generally treats the date of the screening interview as the date the asylum claim was made. Practitioners and applicants will know that it normally takes approximately two weeks between an asylum seeker contacting the Asylum Screening Unit by telephone to request a screening interview and the interview being arranged. Applicants who entered unlawfully and were granted asylum will have to show that they contacted the Home Office within four weeks of entry, and any further delay thereafter was on the part of the Home Office.
The guidance remains broadly the same with respect to criminality. There is further sensible guidance regarding the assessment of criminal offences committed overseas for conduct which is not a criminal offence in the United Kingdom (such as offences regarding sexuality, membership of a trade union or political party, etc.). The guidance now confirms that such convictions will normally be disregarded.
New guidance was introduced regarding those who have disseminated extremist views, such as inciting terrorist violence or fostering inter-community hatred. These provisions apply to applications made before the new guidance was introduced and will, as you might expect, normally result in the application being refused.
Outstanding NHS debts of over £500.00 or a failure to pay the Home Office litigation costs will also normally see applications refused. The guidance appears to indicate that the applicant will be given the opportunity to settle the debt without the application being refused.
Finally, the guidance takes a more generous and sensible approach to applicants who have made genuine mistakes, either in their application or in claiming to be entitled to something which they genuinely and reasonably believed they were entitled to. Whereas before such applicant “will not normally be refused” the new guidance confirms that the decision-maker “must not refuse” them.
Overall, the guidance represents greater intolerance to immigration breaches arising in an applicant’s past. Since significant amendments to the good character guidance in December 2014, the Home Office approach has generally become more restrictive, treating a wider range of immigration matters as presumptive of bad character. Indeed, they are treated as strictly as prison sentences of less than a year. That said, practitioners should remember that despite its prescriptive nature, this “guidance” is not hard and fast rules. While ensuring that potential applicants are given appropriate advice on the likelihood of refusal under the new guidance so that they can make informed decisions on whether to proceed with an application, it is essential to prepare strong mitigating evidence and representations, especially relating to children, in respect of any good character breaches.