Threatened protection

Immigrant victims of domestic violence in Northern Ireland

Anna Morvern, immigration adviser at Law Centre (NI), explains the current legal position of immigrant spouses or partners who fall victim to domestic violence and calls for an end to a prohibitive fee which increases the risk of people staying in violent relationships.

Since December 2002, the Immigration Rules have provided for a grant of leave to remain for immigrant spouses or partners whose relationship has ended due to domestic violence during the first two years of their stay. The provisions relating to domestic violence in the Immigration Rules, at least in theory, offer vital protection for the small number of immigrants, usually women, who came to Northern Ireland to join their spouse or partner and who have become victims of violence.

Evidence required

The Home Office requires considerable evidence to show that the relationship broke down due to domestic violence. The evidence required is not specified in the Immigration Rules themselves but is listed in the Immigration Directorate’s Instructions, the guidance to government caseworkers as to how they should apply the Rules when they make decisions in individual cases. In the case of Ishtiaq, the English Court of Appeal earlier this year questioned whether the evidence must be that set out in the Immigration Instructions and whether an application must fail if the evidence is not from that list. The Home Office tried to argue that the list of evidence in the Instructions constitutes an inflexible prescription, contending that false allegations of domestic violence could otherwise be made in order to obtain leave. The appeal court, however, was not convinced by these arguments, noting that Home Office caseworkers, like judges, are often charged with a difficult fact finding task and with distinguishing fact from falsehood. The Court of Appeal concluded that the Instructions provide strong guidance as to the evidence required to prove the breakdown of a relationship due to domestic violence, but no more than that.

This decision is to be applauded by legal representatives who act for immigrant victims of domestic violence in Northern Ireland. It is not a particularly creative or liberal interpretation of the law but it is a common-sense decision which acknowledges the difficulties that immigrants face when making any kind of formal application in what is often an unfamiliar system and language. Lawyers acting for victims are aware that these difficulties are often exacerbated for victims of domestic violence, who will frequently encounter problems when they try to access authorities such as doctors and police to obtain formal corroboration of the violence suffered.

The Court of Appeal held that it was not the purpose of the Rules to deny leave to victims of domestic violence who can prove their case, but cannot do so in one of the ways that have been prescribed by the Secretary of State in the Instructions. Preventing an applicant from proving her case by producing relevant evidence outside that prescribed in the instructions to caseworkers would defeat the purpose of the Rules, which was to ensure that victims should not feel constrained to remain in an abusive relationship solely in order to qualify for leave to remain.

Prohibitive fee

Despite this positive judicial decision, the ability of immigrant victims of domestic violence to seek protection is currently under considerable threat from two quarters. The first threat emanates from recent legislation. A woman who should be protected by the ‘domestic violence rule’, may not even get as far as putting in her application, because, in the same month as the Ishtiaq decision, the Home Office introduced new fees payable by applicants. The fee to be paid by an individual submitting an application for leave under the ‘domestic violence rule’ is now £750. The only exemption from this fee is if the applicant is destitute and can prove this with a letter from an official source, usually social services.

The Law Centre and others are vigorously challenging the new fee on a case-by-case basis and at policy level. For many immigrant women on the minimum wage or on a low wage, struggling to make ends meet on leaving a violent relationship, the fee is prohibitive. In effect, the new fee requirement will force many vulnerable women to make a choice between remaining in an abusive relationship, ‘disappearing’ underground, or becoming unwillingly destitute solely to meet the criterion for exemption from the fee. At the time of writing, legal challenges to this fee were in preparation.

One size-fits-all approach

The second threat is the proposal of the Border and Immigration Agency to ‘minimise the need for [Home Office] caseworkers to exercise discretion’, as set out in its recent consultation on ‘simplifying’ immigration law. The Court of Appeal in Ishtiaq affirmed the role of discretion in Home Office decision-making. For immigration practitioners, the exercise of discretion offers the promise of consideration of the individual facts of a client’s case and the possibility of an appeal if discretion should have been exercised differently. Yet the Home Office proposes to reduce the use of discretion across the board in immigration cases. If legislation is to be ‘simplified’ in the manner proposed by the government, then the alternative might only be a ‘one-size-fits-all’ approach. Such an approach would be highly inappropriate, given the complexities of individual immigrants’ particular circumstances, which always merit careful individual scrutiny rather than a box-ticking exercise. The Immigration Law Practitioners’ Association, representing the concerns of its members, has rightly criticized the short-sighted tactic of reducing discretion:

‘Whether viewed from the perspective of European Union law, human rights law or UK administrative law, both proportionality and regard to all the relevant circumstances of the individual case are fundamental requirements of a lawful decision. Reducing discretion for decision makers to be able to meet these requirements will cause their decisions to fail to command public confidence and lead to litigation; this in turn may add complication and further undermine public confidence.’

Protection

The protection of vulnerable immigrants and their ability to seek genuine safety in Northern Ireland should never be jeopardized by the motive of financial gain or by misguided attempts to abridge legal processes. This could not be more so than in the case of immigrant victims of domestic violence.

© Law Centre (NI) 2008