SBS has also been involved in legal test cases which seek to expand the remit of the DDV Concession for migrant women who experience domestic violence in their relationships. Our concern is that the DDV Concession is too restrictive as it currently applies only to those who have entered the UK on a spousal visa. Our casework reveals that a number of women are given leave to enter the UK with conditions attached that are not dissimilar to spousal visa applicants and yet their application for the DDV Concession are refused on the grounds that they are not technically spousal visa applicants.
Our central argument in these cases is that the sole purpose of the DDV concession is to prevent women with insecure status from being trapped in abusive and often life-threatening relationships. If this purpose is recognised then it follows that the spirit of the DDV Concession should apply in cases where women are treated as spousal visa applicants in substance, irrespective of the fact that they may not have technically entered the UK on spousal visas..
We have had some success in challenging refusals by the Home Office to allow their DDV applications in circumstances where they have been subject to abuse but have not entered the UK on spousal visas.
The cases cited below show how our users were granted leave to enter the UK on a discretionary basis or on some other grounds, to join their settled partners in the UK. They were subject to the same conditions of entry as spousal visa applicants. Once their relationship broke down, both women applied for the DDV Concession but were refused. SBS assisted the women in making their DDV applications, and when refused wrote to the Home Office seeking a review of the refusal or to request reasons for the refusal. By doing so, we prepared the groundwork for judicial review challenges. Working with her lawyer, we have pulled together our history and campaign on the DV Rule and the DDV Concession over the last 20 years, including the reasons for its introduction. This has formed the background to the judicial review challenges. The first case was successful and the second case is still pending at the High Court.
C had a forced marriage in Somalia to a British national whilst still only 16 years old. After her parents passed away, she became the sole carer for her younger sister and then gave birth to her own daughter. Her husband then made an application for a spouse visa which was refused on the basis that he did not have sufficient financial means to support her. In a subsequent legal challenge, C was granted leave to enter the UK ‘outside the immigration rules’ under Article 8 of the ECHR. When C joined her husband in May 2012, the conditions of her stay mirrored that of a spousal visa applicant.
Whilst in the UK, C was subjected to ongoing physical, emotional and sexual abuse from her husband. Her husband imprisoned her in the home and controlled her every move. In December 2012, C called the police after her husband made threats to take her daughter away from her. The police did not take any action and so C was forced to flee her husband with her two dependent children and came to SBS for advice and support.
C had no means of financially supporting herself and her children and so SBS assisted her in making an application for the DDV Concession. This was refused on the basis that she had not entered the UK on a spousal visa. SBS then used our ‘No Recourse Fund’ to provide her with support pending a challenge to this decision. SBS also approached social services for support for C and her children although this was also initially refused by the local authority which claimed that it only owed a duty of care to the children.
SBS assisted C in challenging the refusal of her DDV application by the Home Office by arguing that the implementation of the DDV Concession was too restrictive and rigid in circumstances where she was treated for all intents and purposes as a spouse entering the UK to join her husband.
In the interim order, the High Court agreed with our view and stated:
‘It is however highly arguable that the claimant and her children qualify under the DDV Concession for access to public funds and that the defendant’s application of the black letter law of the text of the DV concession rule is unduly formalistic and unlawful.’
The High Court directed the Home Office to provide C and her children financial support as they would have done had they accepted her application under the DDV Concession and it ordered the local authority social services department to provide financial assistance to C and her children under section 17 of the Children Act 1989 as an emergency measure. C subsequently made a successful application for indefinite leave to remain in the UK under the Domestic Violence Rule.
T, an Eritrean National, joined her husband in the UK on a post-flight spouse visa. Her husband had been granted refugee status in the UK. T’s husband subjected her to repeated domestic and sexual violence. (He also took her earnings and threatened to send her back to Eritrea.). T began self-harming and feared returning to Eritrea as a disgraced woman. After calling the police she was taken to a night shelter, but her immigration status prevented her from claiming benefits. SBS assisted T in numerous ways including finding temporary accommodation using our ‘No Recourse Funds’. We also assisted her in submitting applications for temporary immigration status under the DDV Concession, but her applications were refused on the basis that she did not technically enter the UK under a spouse visa but as the post flight spouse of a refugee. T’s immigration solicitor has since challenged this refusal by way of judicial review. In the meantime, she has been given temporary leave to remain by the Home Office, which allows her recourse to public funds. T continues to need intensive support from SBS as she has been particularly traumatised by her experiences of abuse and remains acutely vulnerable, a situation which has been compounded by the state’s callous or at the very least, indifferent response to her need for protection.
The case is currently pending at the High Court and will be heard in May 2014.
Both cases raise important public interest points about the spirit and purpose of the DDV concession and whether women who are treated in all but name as spousal visa entrants, should be prevented from making applications for support under the DDV concession.