THE AIRE CENTRE Advice on Individual Rights in Europe

Transcription

1 THE AIRE CENTRE Advice on Individual Rights in Europe Written Evidence of the AIRE Centre to the Joint Committee on Human Rights on Violence against Women and Girls The AIRE Centre is a non-governmental organisation founded in 1993 and based in the United Kingdom whose mission is to promote awareness of European law rights and assist marginalised individuals and those in vulnerable circumstances in asserting those rights. The Centre has been running a legal project focussing specifically on women victims of violence since Executive Summary The AIRE Centre welcomes the opportunity to provide evidence to the Committee on the UK's obligations in relation to combating violence against women and girls (VAWG) and victims of domestic violence (DV). In summary, the AIRE Centre believes that the UK should ratify the Council of Europe Convention on preventing and combating violence against women and domestic violence ( the Convention ) and put in place concrete mechanisms in the UK to ensure the principle aims of this Convention are properly met. Without doing this, the UK authorities would in many cases fail to comply with their positive obligations towards victims under the European Convention on Human Rights ( ECHR ). The AIRE Centre is concerned that the UK authorities are, in practical terms, fundamentally failing some discrete categories of victims of domestic violence in this country, particularly as a result of the failure to provide the same legal protections to all victims of domestic violence who are forced to flee their homes. The AIRE Centre has identified the following particular problems within our expertise, which persist in relation to women victims of violence in the UK: i. Access to adequate financial assistance and support for EEA national victims of domestic violence ii. Uncertain immigration provision for third country national durable partners of EEA nationals whose relationship breaks down due to violence We have also set out in these submissions our comments on the Council of Europe Convention.

2 Access to adequate social support for EEA national victims of domestic violence Nationals of the European Economic Area (EEA) who have rights of entry and residence stemming from Article 21 of the Treaty on the Functioning of the European Union ( TFEU ), who are victims of domestic violence are frequently left in unsupported situations. EEA nationals who have suffered 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 in the UK. As explained below, this refusal can, and does, result directly in the exclusion of vulnerable EEA nationals and their non- EEA family members from domestic violence refuges. It also results in the exclusion of domestic violence survivors, including those with young children, from access to basic benefits intended to prevent such victims from becoming destitute. This exclusion represents a serious threat to the lives and health of the affected persons. The AIRE Centre is aware of cases of women who, having lived for many months or years in the UK and in some cases having British Citizen children, have faced the choice between returning to an abusive partner or becoming homeless or destitute. EEA nationals and non-eea national family members cannot 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. The exclusion of EEA nationals and EEA family members from domestic violence refuges generally occurs in the following way. Under the Immigration (European Economic Area) Regulations 2006, EEA nationals and their family members, including spouses, civil partners and those durable partners who have been granted EEA family permits, registration certificates or residence cards, have a right to enter the UK and reside here for up to three months without restriction. In order to reside lawfully in the UK for more than three months, an EEA national must show that he or she is exercising Treaty rights: for example, by being a worker, selfemployed person, student, self-sufficient person with comprehensive sickness insurance or permanent resident. Family members of EEA nationals have a right to reside in the UK as long as the EEA national from whom they derive their residence rights is continuing to exercise Treaty rights here. 2

3 Normally, non-eea spouses and civil partners of EEA nationals who experience domestic violence during their marriage or partnership may retain a right to reside in the UK if, at the time of the divorce or the termination of the civil partnership, the EEA national is present in the UK and exercising Treaty rights here (see Article 13(2)(c) of Directive 2004/38/EC ( the Directive )). This retained right of residence is confirmed in Regulation 10 of the Immigration (European Economic Area) Regulations However, Regulation 10 grants no rights to spouses or civil partners who have not yet divorced or terminated the civil partnership. Notably, where a divorce does occur, Regulation 10 requires that the former spouse (i.e. the perpetrator of the violence) be exercising Treaty rights at the date of the divorce, something that is especially difficult for many domestic violence victims to prove. It also requires that the victim become economically active immediately following the divorce, a stricture that, as discussed below, can present an insurmountable hurdle to those who have recently experienced severe domestic violence. 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. Under Regulation 10 of the Housing Benefit Regulations 2006 (SI 2006/213) as amended by the Social Security (Persons from Abroad) Amendment Regulations 2006 (SI 2006/1026)), however, 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. In order to show that they have a right to reside in the UK for benefits purposes, EEA nationals must show that they are exercising treaty rights here, e.g. by working or being self-employed. The family members of EEA nationals, meanwhile, must show that the EEA national from whom they derive residence rights is present in the UK and exercising treaty rights here. The same test applies, with minor modifications, to access to social housing 1 and to Income Support 2 and other relevant benefits. 1 Under the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 (SI 2006/1294) and equivalent legislation applicable in Northern Ireland, Scotland and Wales (for Northern Ireland, see SI 2008/1768 and SI 2006/397; for Scotland, see SI 2008/1768; for Wales, see SI 2006/2646 (W 227) and SI 2003/239 (W 36)). 2 Under the Income Support (General) Regulations 1987 (SI 1987/1967as amended by the Social Security (Persons from Abroad) Amendment Regulations 2006 (SI 2006/1026)) 3

4 Establishing that a victim and / or her family member has been exercising treaty rights in the UK is a complex and lengthy undertaking requiring extensive fact finding and the litigation of complex legal issues. The need for expert advice, as well as the frequent need to request information from the UKVI or DWP regarding the abusive partner s exercise of treaty rights often results in weeks or months of delay. 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. Compounding these difficulties is the fact that 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; similarly, 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 recognised by the current legislation and be able to claim the kinds of benefits that will allow her to enter a refuge. The UK is obligated, when implementing EU law, to adhere to the fundamental rights principles inherent in EU law and made visible in the Charter of Fundamental Rights of the European Union. The Charter provides at Article 1 that [h]uman dignity is inviolable and must be respected and protected. It further provides that everyone has a right to life and to respect for his or her physical and mental integrity (Articles 2(1), 3(1)). It also mandates that [n]o one shall be subjected to inhuman or degrading treatment (Article 4). Additionally, the unclear residence rights of EEA nationals who suffer domestic violence is in conflict with the notion of Union citizenship as the fundamental status of EU citizens (see Recital (3) of Directive 2004/38), which is intended to ensure that EU citizens are treated the same way as British Citizens when they are in the UK. The unclear residence rights of EEA victims of domestic violence means that they are in a much more precarious situation than British victims of domestic violence. The Committee on the Elimination of Discrimination Against Women also noted this discrepant practice in the UK its Concluding Observations on the UK s Seventh Periodic Report, stating at paragraph 56: The Committee recalls its previous concluding observations (ibid., paras. 295 and 296) and remains concerned that, under the no recourse to public funds policy, women with 4

5 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 and, access to justice and health care should also be provided to all women with insecure immigration status, including asylum seekers, until their return to their countries of origin (paragraph 57). It is important to note that the failure to provide a solution for the non-eea family members of EEA nationals in situations of domestic violence, while providing a solution for the non-eea family members of British Citizens and persons settled in the UK, also violates the EU law principle of equal treatment and proportionality (see further below). Uncertain immigration provision for third country national durable partners of EEA nationals whose relationship breaks down due to violence The AIRE Centre receives a large number of requests for advice and assistance from third-country nationals who were formerly in durable partnerships with EEA nationals exercising Treaty rights in the UK, but whose relationships have broken down following the occurrence of domestic violence. As set out above, EEA national and non-eea national victims who have been subjected to domestic violence at the hands of their EEA national durable partners are, in many cases, prevented from asserting the independent right to reside in the UK that is so crucial in accessing basic assistance and support, including women s refuges or other safe accommodation. Although unmarried / durable partners are not regarded as family members for the purposes of the Directive, the UK is obligated under Articles 3(2) and 7(2) of the Directive to facilitate entry and residence for the unmarried partner with whom an EEA national exercising treaty rights in the UK has a durable relationship, duly attested. Many third-country-national durable partners of EEA nationals will possess an EEA family permit or residence card that was issued on this basis and either of these documents can be submitted as proof that the Home Office has 5

6 recognised the existence of the partnership. The Immigration (European Economic Area) Regulations 2006 provide that a durable partner who has been issued with an entry or residence document shall enjoy residence rights in the UK as long as she continues to satisfy the conditions underlying the grant of the document (Article 7(3)); i.e. for as long at the relationship is subsisting. As set out above, Article 13(2) of the Directive 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, and challenging this usually requires litigation before the relevant tribunal. In contrast, the UK Immigration Rules, which apply to migrants in the UK other than those exercising EU free movement rights, provide at Rule 289A 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. Relying on the established jurisprudence in Netherlands v Reed, [1986] EUECJ R-59/85 (17 April 1986), this discrepancy between the partners of British citizens, and those of EEA nationals, stands contrary to the fundamental EU law principle of equal treatment. The judgment of the European Court of Justice in Netherlands v Reed, clarified that under this principle, a Member State which permits the unmarried companions of its nationals, who are not themselves nationals of that Member State, to reside in its territory cannot refuse to grant the same advantage to migrant workers who are nationals of other Member States (paragraph 2). Therefore, if unmarried partners of British nationals who have suffered domestic violence are allowed to retain their residence rights, the same advantage should also be afforded to the durable partners of EEA nationals in a similar situation. The Home Office s current policy of not allowing the same rights to durable partners of EEA nationals who survived domestic violence is therefore, inconsistent with the judgment of Netherlands v Reed. Furthermore, this legal lacuna also runs contrary to the EU principle of free movement of worker within the EU, as the partners of those EEA workers may refrain from accompanying their partners to other Member states in fear of lack of legal protection. Proportionality The principle of proportionality is one of the most foundational of the EU s legal order and is articulated in Article 52 of the Charter of Fundamental Rights of the European Union which states: 6

7 Any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations 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 principle of proportionality binds the EU institutions when they are creating and enforcing EU free movement rights, and also binds Member States such as the UK when they are implementing such rights. This means that the UK cannot apply either the Directive or the Regulations to the durable partner of an EEA national in a manner that is disproportionate to the legitimate objective of the European Union. This stricture is applied even where the UK enjoys some degree of discretion provided under EU law as established in Zalewska v Department for Social Development [2008] UKHL 67. An interpretation of the Directive or the implementing Regulations that fails to acknowledge retained residence rights for domestic violence survivors who have been in recognised durable partnership with EEA nationals, whilst affording the same rights to unmarried partners of British nationals, is plainly arbitrary, capricious and unfair. Therefore, the omission cannot be regarded as genuinely meeting objectives of general interest recognised by the union or the need to protect the rights and freedoms of others. Fundamental Rights Given the acute consequences that flow from domestic violence, the omission of retained residence rights necessarily engages the operation of fundamental rights under the charter. Such rights comprise of respect for physical and mental integrity, freedom from torture and inhuman or degrading treatment, or freedom from punishment and respect for private life. In extreme cases, it may also engage the right to life. In addition, the failure to recognise a right to reside on the part of these domestic violence victims, with the result that they cannot obtain emergency shelter in lifethreatening situations, could violate Articles 2 and 3 of the ECHR, as implemented by the Human Rights Act. These articles confirm the right of all individuals in the UK to life and to freedom from inhuman or degrading treatment. In this respect we refer to the European Court of Human Rights judgment in Opuz v Turkey (2009) at paragraph 191 finding that a State s failure to protect individuals in its territory from severe domestic violence can violate Articles 2 and 3 of the European Convention on Human Rights: 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 7

8 intentional. More recently, the Court has found in Mudric v the Republic of Moldova (2013) that a State party to the Convention is obligated to maintain and apply in practice an adequate legal framework affording protection against acts of violence by private individuals ; in other words, it must adopt and enforce laws that are capable of protecting victims of violence. Additionally, in A v Croatia (2010), the Court held that a State s authorities could 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, that is, to ensure her freedom from the threat of violence at the hands of her partner (paragraph 79). Finally the Court s recent judgment in Hode and Abdi v the United Kingdom (2012) confirms that, following Bah v the United Kingdom (2011), 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. Furthermore, the inequitable nature of this legal inconsistency may even engage Article 14 ECHR which, albeit not a freestanding right, may operate given the breaches of Articles 2, 3 and 8 rights of the durable EEA partners concerned, precisely because of the nationality of their partners, vis a vis, the unmarried partners of British nationals. General comments on the Council of Europe Convention on preventing and combating violence against women and domestic violence The Council of Europe Convention goes a significant way to assisting victims who fall into one of the headings above, and consequently ratification of the Convention would help the UK come closer towards meeting its obligations owed to victims and potential victims of violence. The most pertinent provisions of the Convention are summarised below. Violence against women is defined in the Convention as all acts of gender-based violence that result in, or are likely to result in, physical, sexual, psychological or economic harm or suffering to women, including threats of such actions, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life (Article 3(a) emphasis added). This definition 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). The definition, if fully and properly applied, would cover cases of durable 8

9 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. In addition the Convention contains, in Article 4, a specific non-discrimination provision which obliges State Parties to the Convention to condemn all forms of discrimination against women and take, without delay, the necessary legislative and other measures to prevent it, in particular by... Abolishing laws and practices which discriminate against women (Article 4(2)). The Explanatory Report to the Convention confirms that the obligation to ensure the practical realisation of equality between women and men, also contained in Article 4(2), addresses the fact that enshrining it in law is often insufficient and that practical measures are required to implement this principle in a meaningful way 3. 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. The Convention goes on to detail the State party s obligations to protect victims of violence 4. In this regard, the Convention covers the 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, 5 and 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 6. Practically, a claim of compensation can only be pursued once immigration issues are resolved. We would say a word of caution however in relation to Article 59 of the Convention, a provision relating to the residence status of victims of violence. This article provides that victims whose residence status depends on that of the spouse or partner as recognised by internal law should be in the event of the dissolution of the marriage or the relationship...granted in the event of particularly difficult circumstances, upon application, an autonomous residence permit irrespective of the duration of the marriage or the relationship. The reasoning behind this Article 3 Explanatory Report to the Convention, paragraph Article 18 5 Article 20 9

10 is based upon the fear of deportation or loss of residence status which is used by perpetrators to prevent victims from seeking help from the authorities, and the requirement imposed in some Council of Europe states for a marriage or relationship to have lasted a certain amount of time before the victim can be granted autonomous residence status leads to a victim being forced to remain in a situation of abuse and violence for long periods of time. 7 However, the way that Article 59 has been drafted raises significant procedural problems; it only applies to violence committed in the context of a marriage or relationship between partners and appears, therefore, to exclude violence perpetrated by, for example, a father against his daughter or a son against his mother. Furthermore, Article 59 explicitly limits the grant of an autonomous residence permit in the event of particularly difficult circumstances and has left the conditions which must be met to fulfil this criteria to be determined by State parties in their internal law. The grant of the residence permit is not automatic and neither is there an automatic consideration of the victim s circumstances once they come to the attention of the authorities; the victim must make an application for an autonomous residence permit and this necessarily requires access to advice and assistance to enable her to do this. In this context, any measures taken in the UK towards securing the immigration status of victims should be formulated to avoid the potential problems highlighted by the drafting of Article 59 of the Convention. We would urge a more victim-centred approach to be adopted towards all victims of gender based violence, particularly in ensuring that such women are legally entitled to safe and secure accommodation, suitable to their circumstances, and that such women are in fact provided with all necessary support and assistance in accordance with the Convention. The AIRE Centre 5th March Article 30 7 Explanatory Report to the Convention at paragraph