Kirsen Ferguson Head of European Operational Policy UK Border Agency By

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1 Kirsen Ferguson Head of European Operational Policy UK Border Agency By CC by Serena Bryant, European Operational Policy Manager, UK Border Agency, Steve Long, Director for Permanent Migration, Home Office, Sonia Dower, Director of Operational Policy and Rules Unit, Strategy and Intelligence Directorate, UK Border Agency, 14 February 2013 Dear Ms Ferguson 1. Thank you for your letter of 28 November 2012, which addressed our letter of 8 October 2012 concerning the inability of many EEA nationals and their non-eea family members 1 to obtain emergency support in the UK when they experience domestic violence here. We appreciate your willingness to engage in a discussion with us concerning these issues. 2. Additionally, we recognise and appreciate the Border Agency s pragmatic approach to cases in which a victim of domestic violence has applied to the Border Agency for an EEA registration certificate or residence card but is unable to prove that his or her EEA-national family member is exercising Treaty rights in the UK. The development of this pragmatic approach represents a significant step forward for at least some domestic violence victims who are residing in the UK in accordance with EU law. 3. However, in your letter of 28 November, you indicated that you believe you have successfully fulfilled all of your legal obligations to victims of domestic violence who are residing in the UK under EU law. As explained in our letter of 8 October and detailed below, we submit that this is not the case. 4. In light of the unfulfilled legal obligations we have identified and the UK s potential liability as a result, we consider that it is in the best interests of both domestic violence victims and the Home Office for the Home Office to amend the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003), or adopt a concession, to provide for EEA nationals and 1 In this letter, the term non-eea family member is used to indicate the third-country-national family member of an EEA national.

2 their non-eea family members in a similar manner to the provisions made under the Destitution Domestic Violence concession. Gaps in Protection 5. In our earlier letter, we highlighted a range of situations in which domestic violence victims who are residing in the UK pursuant to their EU-law rights are not currently regarded under the Immigration (European Economic Area) Regulations 2006 as retaining their residence rights following the breakdown of their relationships. 6. Victims who fall into this gap include not only durable partners whose relationships have broken down, as you have acknowledged, but also spouses and civil partners whose EEAnational family member has left the UK or stopped exercising Treaty rights here before a divorce or dissolution of the civil partnership could take place. They also include the EEAnational spouses of British citizens and settled persons, many of whom have British citizen children who are also vulnerable to the abuser s violence. We have enclosed a summary of several AIRE Centre cases that illustrate some of these gaps (see Annex A). 7. In light of these gaps, we have concluded that, notwithstanding the pragmatic approach, the UK is not fulfilling its obligations under EU law and the European Convention on Human Rights. 8. You will be aware that UK tribunals have begun to find that domestic violence victims necessarily enjoy residence rights under EU law even when no express provision for the retention of their rights is made in Directive 2004/38/EC or the Immigration (European Economic Area) Regulations A summary of one such determination issued by the First-tier Tribunal (Immigration and Asylum Chamber) in November 2012 is enclosed at Annex B. 9. It is therefore clear that, as discussed below, the failure to recognise residence rights on the part of domestic violence victims who are EEA nationals or non-eea family members violates these victims legal rights. Responsibility under the European Convention on Human Rights 10. The European Court of Human Rights has established that a Contracting State s responsibility can be engaged meaning that the State can be liable for damages and other remedies under Articles 2, 3, 8 and 14 of the European Convention on Human Rights ( the Convention ) for failing to take measures to protect individuals in its territory from severe domestic violence. In our letter of 8 October, we referred you to Opuz v Turkey (2009), in which violations of Articles 2, 3 and 14 were found: the State s failure to protect women against domestic violence breaches their right to equal protection of the law [T]his failure does not need to be intentional (paragraph 191). 11. We further refer you to A v Croatia (2010), in which the Court held that the national authorities of the Contracting State violated Article 8 of the Convention by leaving a domestic violence victim for a prolonged period in a position in which [the authorities] failed to satisfy their positive obligations to ensure her right to respect for her private life, i.e. to ensure her freedom from the threat of violence at the hands of her partner (paragraph 79). 12. Additionally, the European Court s recent judgment in Hode and Abdi v the United Kingdom (2012) confirms that differential treatment on the basis of immigration status in respect of fundamental rights can violate Article 14 of the Convention (see paragraphs 46-47, 56). 2

3 13. For these reasons, the UK s failure to recognise a right to reside on the part of EEA nationals and non-eea family members who suffer domestic violence, knowing that these victims will experience serious difficulty in obtaining emergency shelter and other forms of emergency support as a result, violates the Convention and leaves the UK liable to claims for damages and other remedies before the Strasbourg court. 14. Recognising such victims residence rights is therefore necessary in order to secure their fundamental rights under the Convention. The Binding Requirements of EU Law 15. As discussed in our letter of 8 October, the UK authorities are aware that EEA nationals and non-eea family members are frequently unable to obtain emergency support when they flee violent partners; however, despite this awareness, the authorities have not taken adequate action to address the problem. This failure violates the victims rights under the Charter of Fundamental Rights of the European Union. At minimum, it violates the right to respect for physical and mental integrity (Article 3(1)). In some cases, it may also violate the right to life and the right to freedom from inhuman or degrading treatment (Articles 2(1) and 4). 16. Furthermore, as the First-tier Tribunal (Immigration and Asylum Chamber) found in the unreported determination summarised at Annex B, the UK s failure to provide a solution for the non-eea family members of EEA nationals in situations of domestic violence, whilst providing a solution for the non-eea family members of British citizens and persons settled in the UK, violates the binding EU-law principle of equal treatment (see Netherlands v Reed, C-59/85 [1986] ECR (17 April 1986)). 17. Finally, the refusal to recognise residence rights on the part of an EEA national or non-eea family member who has suffered domestic violence violates the binding EU-law principle of proportionality. In respect of durable partners whose relationships have broken down following domestic violence, the Tribunal determination summarised at Annex B concluded that it the UK s failure to recognise such rights was plainly arbitrary and unnecessary, and therefore disproportionate. 18. We reiterate, therefore, that the UK has a legal obligation to provide protections to domestic violence victims who are EEA nationals or non-eea family members, and that these protections must be sufficient to ensure that the UK does not violate the victims fundamental rights under the European Convention on Human Rights and European Union law. Expedited Processing of Applications 19. We welcome your willingness to collaborate with us to identify a suitable mechanism by which applications made by domestic violence victims for EEA residence cards or registration certificates can be expedited. 20. We consider that one suitable approach might be for the Border Agency to create a special, streamlined form for use by domestic violence victims. The Destitution Domestic Violence concession notification form, a simplified questionnaire that is accompanied by a declaration, may serve as an appropriate model. 21. In order to ensure that emergency support is available to domestic violence victims, we suggest that emergency applications should be processed as soon as possible and in any event within 48 hours. It may be possible for the UK Border Agency to issue a provisional decision in such cases that would enable the victim to obtain support while further enquiries are undertaken, as necessary. 3

4 22. We consider that it would be helpful to meet with you to discuss this matter further. If you agree, please revert to AIRE Centre Legal Project Manager Sarah St Vincent with your preferred dates and times. Yours sincerely, The AIRE Centre Child Poverty Action Group Immigration Law Practitioners Association Rights of Women Southall Black Sisters [Enclosures] 4

5 Annex A: AIRE Centre Case Studies NB: Names and identifying details have been changed in these case studies. 1. Priyasha is a third-country national married to an Austrian national. In 2004, she joined her husband in Austria, and a few years later, the couple came to the UK. Priyasha had suffered severe domestic violence whilst in Austria, and although her husband had been convicted of a relevant offence, he was never imprisoned and was able to locate her and persuade her to come to the UK with him. After arriving in the UK, both Priyasha and her husband began working, and in late 2010, Priyasha obtained a residence card from the UK Border Agency. In early 2011, however, her husband seriously wounded her with a weapon and was imprisoned following a criminal conviction. The Secretary of State s view appears to be that Priyasha did not continue to have residence rights as the family member of an EEA national whilst her husband was in prison. In any event, the UK authorities removed her husband to Austria immediately after he finished his prison term. The husband continues to contact Priyasha s family members in the UK in order to threaten his wife. Priyasha is greatly distressed by the continuing uncertainty of her residence status in the UK, particularly given her extensive efforts to integrate into British society and the danger she continues to face from her husband. 2. Celina is an EEA national who came to the UK in 2007 and began living with a British citizen partner in approximately Although she worked during some periods, she eventually stopped work due to pregnancy and her subsequent need to provide care for her British citizen child. When her partner became abusive, she fled to a shelter but was unable to claim the benefits she needed in order to pay for a room there, as the local authority and Jobcentre Plus considered that she had no right to reside in the UK. 3. Victoria is an EEA national married to a British citizen. She and her husband have recently separated due to domestic violence, leaving Victoria the primary carer of the couple s severely disabled and wheelchair-bound four-year-old son, who is a British citizen. While Victoria has previously studied in the UK, she has been unable to take up work or selfemployment following her son s birth due to his care needs. She receives Carer s Allowance to provide care for her son, and her son receives Disability Living Allowance. However, because Victoria is married to a British citizen rather than another EEA national, the UK authorities view is that she does not have a right to reside in the UK under EU law for the purpose of claiming other benefits because her husband although working is not regarded as exercising Treaty rights here, meaning that she does not qualify as his family member. (Because she is an EEA national herself, Victoria was not required to obtain leave to enter or remain in the UK as her husband s spouse under the Immigration Rules; thus, she never applied for leave on this basis, and she would be unable to do so now.) At present, Victoria is also unable to derive a right to reside from her child. Particularly since Victoria and her son are no longer able to rely on Victoria s husband for care or financial support, they are now in a precarious and vulnerable situation. 4. Marica is an EEA national and is a victim of sex trafficking. After a period of exploitation in the UK, she escaped from her traffickers and married a third-country national. 5

6 Following the birth of the couple s first child, Marica s husband became violent toward Marica and the baby. Marica fled to a refuge and was temporarily housed using the refuge s own funds, but was advised that she had no right to reside in the UK for the purpose of claiming the type of benefits that would fund a longer period of accommodation at the refuge. With the help of her support worker, Marica made an application to the UK Border Agency under the Destitution Domestic Violence concession. Her application was refused. She remained unable to return to her country of origin due to a fear of harm from the traffickers and, at the time she sought legal advice, had not yet been conclusively recognised as a victim of trafficking (and thus was not eligible for a grant of discretionary leave to remain on this basis). 5. Olivia is an EEA national and is married to another EEA national. The couple have three children, including an infant. They came to the UK in late 2006, and Olivia, who had only third-country nationality at the time, obtained a residence card on the basis of the marriage. Olivia s husband worked in the UK until early 2011, when he was arrested for perpetrating a domestic violence offence against Olivia. After his arrest, Olivia s husband fled the country, meaning that, in the Secretary of State s view, Olivia no longer had any residence rights as the spouse of an EEA national exercising Treaty rights in the UK. Although Olivia had previously worked part-time, her husband s flight left her unable to continue her employment, as she now needed to look after her infant son as a lone parent. She and her children were thus left at risk of destitution and homelessness while they sought legal advice regarding their complex situation. 6

7 Annex B Tribunal Finds that Unmarried Domestic Violence Survivors Have EU Law Rights Available at: In a ground-breaking decision, the First-tier Tribunal (Immigration and Asylum Chamber) has found that the unmarried partner of a European Economic Area ( EEA ) national can retain her residence rights in the UK if her relationship breaks down due to domestic violence. To hold otherwise, the Tribunal stated, would be plainly arbitrary and unnecessary in violation of EU law. The case was brought by the Greater Manchester Immigration Aid Unit on behalf of a non-eea national who suffered serious physical abuse at the hands of her partner, an EEA national. The AIRE Centre provided a written expert opinion in the case. Following a hearing conducted by two judges, the Tribunal s unreported determination was issued on 5 November The appellant arrived in the UK as a visitor in 2005 and subsequently made an unsuccessful claim for asylum, exhausting her appeal rights in In 2008, after separating from her husband, she began her relationship with the EEA national, who was working in the UK. In 2011, the appellant obtained a residence card from the Home Office as the durable partner of an EEA national who was exercising his EU Treaty rights here. Witnesses testified before the Tribunal that the appellant s partner had been working in the UK continuously since After the appellant s divorce from her husband was finalised, she and her partner began to plan their wedding, purchasing wedding rings and asking friends to serve as matron of honour and best man. Unfortunately, the appellant s partner engaged in what the Tribunal described as jealous behaviours and eventually became verbally and physically abusive, assaulting and injuring the appellant on several occasions. The appellant left their shared home with the help of the police in December 2011 and entered a women s refuge. Her partner was ultimately convicted of a domestic violence offence, and the appellant sought an injunction to prevent him from contacting her. After separating from her partner, the appellant applied to the Home Office for a new residence card, claiming that she had retained her residence rights under Regulation 10 of the Immigration (European Economic Area) Regulations Regulation 10, which implements provisions of EU Directive 2004/38, provides that the spouse of an EEA national can retain his or her right to reside in the UK following a divorce if domestic violence occurred during the marriage. In the alternative, the Appellant applied for leave to remain in the UK under Article 8 of the European Convention on Human Rights ( ECHR ), which protects the right to respect for private and family life. The Secretary of State refused the appellant s application for a new residence card in August 2012 and curtailed her existing residence card, stating that Regulation 10 only applies where a couple has been married and has divorced. The Secretary of State further stated that she would not consider the appellant s Article 8 rights unless the appellant made a charged application. The Secretary of State did not indicate which form the appellant should submit in order for her Article 8 rights to be considered. Before addressing the applicable law, the Tribunal made two factual findings: that the appellant suffered egregious domestic violence at the hands of her partner before the relationship broke down, and that her partner had acquired a right of permanent residence in the UK under EU law by the time the couple separated. 7

8 Equal treatment and non-discrimination Turning to the law, the Tribunal noted that the Home Office uses similar criteria when determining whether an individual qualifies for residence rights as an unmarried partner under the Immigration Rules or a durable partner under the Immigration (European Economic Area) Regulations It observed, however, that paragraph 289A of the Immigration Rules permits the unmarried partners of British citizens and settled persons to retain their residence rights when domestic violence results in a breakdown of the relationship, while the Regulations do not make any similar provision for the durable partners of EEA nationals. The Tribunal concluded that the durable partners of EEA nationals are thus treated less favourably than the unmarried partners of British citizens under UK law. The Tribunal described the finding of the European Court of Justice (now the Court of Justice of the European Union) in Netherlands v Reed, C-59/85 [1986] ECR (17 April 1986). In that case, the Court established that under the EU principle of equal treatment, a Member State that provides residence rights to the unmarried partners of its own nationals must also provide such residence rights to the unmarried partners of EU-national workers in its territory. Following that logic, the Tribunal stated, as the unmarried partners of British nationals retain the right of residence in the event of domestic violence, then the durable partners of EEA workers should also retain the right of residence in a similar situation to do otherwise is to deprive them of the social advantage granted to them following the decision in Netherlands v Reed, and thus to place obstacles to the free movement of workers. The Tribunal clarified that these obstacles would arise because durable partners may not wish to accompany their EEA partners for fear of lack of legal protection in the host member state. It concluded that the Secretary of State s unfavourable treatment of the durable partners of EEA nationals compared with the unmarried partners of British citizens is contrary to the EU principles of equal treatment and non-discrimination on the basis of nationality. In reaching this finding, the Tribunal distinguished the European Court of Justice s decision in Kaba (Free movement of persons) C-356/98 [2000] ECR I (11 April 2000). In Kaba, the Court found that the UK did not violate the principle of equal treatment when it required the spouses of EEA nationals exercising Treaty rights in the UK to complete four years of lawful residence before being entitled to apply for indefinite leave to remain ( ILR ), whilst requiring the spouses of British citizens and settled persons to complete only 12 months of lawful residence prior to applying for ILR. The Tribunal noted that the conditions upon which the Court relied in reaching its holding in Kaba did not apply in the appellant s case; in particular, while EEA nationals could (at the time Kaba was decided) become settled persons and take advantage of the 12-month rule, the appellant would never be in a position to qualify for leave to remain under paragraph 289A of the Immigration Rules. Proportionality The Tribunal began its discussion of proportionality by observing that this principle is one of the foundational principles of the EU legal order and is articulated in Article 52(1) of the Charter of Fundamental Rights of the European Union. Article 52(1) provides that limitations on EU free movement rights may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. The Tribunal observed that the principle of proportionality applies even when the UK is exercising some degree of discretion provided under EU law, citing Zalewska v Department for Social Development [2008] UKHL 67 as an example. Consequently, the Tribunal wrote, the United Kingdom cannot apply either [Directive 2004/38] or the Regulations to the appellant in a manner that is disproportionate to a legitimate objective of the European Union. The Tribunal went on to observe that UK decision makers have a duty to read the provisions of the EEA Regulations harmoniously with European Union law and its general principles, in accordance with the European Communities Act 1972 and the principle of indirect effect as established in Von Colson & Anor v Land Nordrhein-Westfalen [R-14/83 [1984] ECR (10 April 1984)]. 8

9 The Tribunal stated: In our view it is plainly arbitrary and unnecessary for the Directive and the Regulations to fail to provide retained residence rights of [sic] domestic violence victims who are in recognised durable partnerships with EEA nationals, whilst providing such rights of [sic] victims who happen to have been married or in civil partnerships. The arbitrariness of the omission is particularly apparent in this appellant s case, where documentary evidence indicates that her marriage was imminent and would have taken place but for the occurrence of the domestic violence. In effect, the Tribunal continued, the appellant has been forced to choose between maintaining her relationship with her abuser or losing her residence rights. Her choice necessarily engaged fundamental rights under the Charter i.e. respect for physical and mental integrity, freedom from torture and inhuman or degrading treatment, and the right to respect for private life. The Tribunal concluded: In our view the omission of retained residence rights for durable partners who suffer domestic violence is incompatible with the Charter and cannot be regarded as genuinely meeting objectives of general interest recognised by the Union or the need to protect the rights and freedom of others. Failure to exercise discretion under Directive 2004/38 Even if the Tribunal s findings concerning equal treatment, non-discrimination and proportionality cannot stand, the judge found that it was still arguable that the Secretary of State erred in failing to examine the appellant s personal circumstances and justify the denial of her residence rights, as required by Directive 2004/38. The Tribunal cited Moneke and others (EEA - OFMs) Nigeria [2011] UKUT 341 (IAC) (22 August 2011) as confirming the Secretary of State has the power to exercise her discretion in respect of durable partners. While the Tribunal did not expressly conclude that the Secretary of State should have exercised her discretion to grant the appellant residence rights, it suggested that the Secretary of State should at minimum have undertaken an appropriate discretionary examination of the appellant s circumstances. Article 8 of the ECHR Regarding Article 8, the Tribunal recalled that the Secretary of State, in her refusal of the appellant s application, had stated that she would not consider the appellant s Article 8 rights until the appellant submitted a charged application. The Tribunal noted that the most relevant form, Form FLR(O), entails a fee of 561 and that there is no indication that a waiver of this fee is available. The Tribunal observed that in GR v the Netherlands, 22251/07 [2012] ECHR 24 (10 January 2012), the European Court of Human Rights held that under Article 13, individuals in Council of Europe Member States such as the UK who wish to apply for a recognition of their residence rights under Article 8 must be able to do so through an accessible procedure whose fees, if any, are proportionate to the applicant s actual income. In that case, the Court found a violation of Article 13, taken together with Article 8, because of a refusal to waive a fee for an application. The Tribunal went on to note that following the curtailment of her residence card, the appellant lacked a clear right to work and had limited resources as a result. It further observed that since paragraph 289A of the Immigration Rules does not apply to the appellant, any charged application she submitted on that basis would be futile. While it did not find that the Secretary of State was required to grant the appellant leave to remain under Article 8, the Tribunal concluded that the Respondent was seeking to compel the appellant to pay 561 simply to assess her Article 8 rights. The Tribunal stated that the Respondent had erred by failing to give proper consideration to the appellant s rights under Article 8 of the ECHR, suggesting that the Tribunal believed that the Respondent was required to consider the appellant s 9

10 request for leave to remain under Article 8 notwithstanding the fact that she had not made a charged application. Disposition The Tribunal allowed the appeal to the extent of remitting the case to the Secretary of State for reconsideration in light of the findings described above. 10