DA Bill: Appropriate Model of Protection for Migrant Survivors of Domestic Abuse
The Domestic Abuse Bill: A Briefing Paper on the Appropriate Model of Protection for Migrant Survivors of Domestic Abuse in the UK
At the Public Bill Committee evidence session on 4 June 2020, in response to evidence given by a survivor and the director of Southall Black Sisters, the Minister for Safeguarding, Victoria Atkins MP, and other members of the Committee proposed that the National Referral Mechanism (NRM) for victims of modern slavery is an appropriate system of support for migrant women victims of domestic abuse who have unsettled immigration status and are subject to the No Recourse to Public Funds (NRPF) condition. This assertion is wholly misconceived and misleading for a number of reasons:
The NRM and the Modern Slavery Act were established to specifically address forms of modern slavery, including trafficking
The NRM was established by the Government in 2009 as a system for identifying victims of modern slavery and trafficking for the purposes of support and protection. It was set up following the signing of the Council of Europe Convention on Action against Trafficking in Human Beings (2005). Article 4 of the Trafficking Convention defines trafficking as involving three key elements: a) recruiting, moving or harbouring a person; b) the use of force or deception and c) for the purpose of labour or sexual exploitation, and domestic servitude or forced labour. From 31st July 2015, the NRM was extended to all victims of modern slavery in England and Wales following the implementation of the Modern Slavery Act 2015.
The NRM guidance says that ‘modern slavery is a complex crime involving multiple forms of exploitation’. It encompasses: human trafficking, slavery, servitude, and forced or compulsory labour. For a person to have been a victim of human trafficking there must have been: a) action (recruitment, transportation, transfer, harbouring or receipt, which can include either domestic or cross-border movement); b) means (threat or use of force, coercion, abduction, fraud, deception, abuse of power or vulnerability – however, there does not need to be a means used for children as they are not able to give informed consent) and c) purpose of exploitation (e.g. sexual exploitation, forced labour or domestic servitude, slavery, removal of organs).
Similarly, the Modern Slavery Act includes definitions for the offences of: slavery, servitude and forced or compulsory labour, human trafficking and exploitation.
Nowhere in the NRM guidance or in the Modern Slavery Act is there any reference to domestic abuse.
Parliament did not intend to include migrant women victims of domestic abuse within the ambit of the NRM system of protection for victims of modern slavery or trafficking
The creators of the NRM and the subsequent Modern Slavery Act, and those supporting it, did not intend for these systems of protection to apply to migrant women who are abused in their marriage or relationships. For example, Parliamentary debates on the NRM show that Parliament’s intention was and remains to provide a system of protection for those subject to slavery and trafficking only:
“The Government have also implemented a National Referral Mechanism to help facilitate victims of trafficking into the appropriate support and protection.” (Maria Eagle MP, then Minister of State for Justice and Equalities, May 2009)
“Particularly helpful in that context has been the introduction of the national referral mechanism…which was established as part of the ratification of the Council of Europe convention on 1 April 2009. The national referral mechanism is a multi-agency framework that assists in identifying victims of trafficking and then providing support.” (Phil Woolas, then Minister of State for Borders and Immigration, February 2010)
“The national referral mechanism, a new mechanism established under the Council of Europe Convention on Action against Trafficking in Human Beings, which provides a way of identifying trafficked people” (Anthony Steen MP, February 2010)
The above quotes from the Government and MPs during a debate on the NRM unequivocally show that the NRM does not and never has functioned as a system of support and protection for migrant women in abusive marital or intimate relationships.
Domestic Abuse and Modern Slavery are conceptually distinct social phenomena
Modern slavery and domestic abuse are two entirely different social phenomena that occur in two different contexts. Slavery and trafficking are conceptually different from domestic abuse which takes place in the context of a marriage or intimate relationship. Although domestic abuse can involve experiences of servitude and financial and sexual exploitation, the key difference is that unlike slavery for profit, domestic abuse occurs in a marriage or relationship in which women are often invested; many regard marriage as a vital aspect of their identity. Some have children from the marriage and have different rights and responsibilities when exiting from the marriage.
The Government has always maintained how important the Domestic Abuse Bill is as it will provide the first statutory definition of domestic abuse. A key tenet of this definition is that domestic abuse takes place in a relationship where two people are ‘personally connected’ to each other whether through marriage, civil partnership, or other intimate relationships. This is the situation in which the overwhelming majority of women supported by SBS and other BME domestic abuse service providers find themselves.
The Modern Slavery Act and the NRM on the other hand, are only concerned with supporting people brought or moved around in the UK for the specific purposes of profiting from the financial and sexual exploitation of their labour. In other words, from trafficking and modern slavery. To suggest that this mechanism can be made to work for victims of domestic abuse because they are migrants is misguided.
Incorrectly referring all abused migrant women to the NRM is potentially harmful
It is both concerning and potentially harmful to propose the NRM as a pathway to support for migrant survivors of domestic abuse who have a non-spousal visa. An inappropriate referral could prevent survivors from obtaining safety from abuse and ultimately prevent them from regularising their immigration status. This is because any referral to the NRM will inevitably be refused on the grounds they are not survivors of slavery or trafficked, as currently defined in the NRM guidance or in the Modern Slavery Act. The refusal will mean that survivors of domestic abuse will be denied support and protection from a specialist organisation and this will leave them vulnerable to further and potentially serious harm. It will also prejudice any future application that they may wish to make to remain in the UK as victims of domestic abuse, since their evidence of domestic abuse will be discredited and their application will be perceived as a cynical move to ‘shop around’ for leave to remain. They are likely to be instantly removed from the UK before having had the chance to obtain proper support and immigration advice. As we have highlighted in our Domestic Abuse Bill Briefing Paper 2, many women have justified fears of violent reprisals from their own families and communities and/or the families of the perpetrator(s) should they return to their country of origin. They often receive explicit death threats and warnings that they will not be safe if they return. There is also a risk that migrant women will be separated from their children who may be left with their abusers in the UK.
A Waste of Time and Resources
A negative conclusion or exit from the NRM will also amount to a waste of time and resources that should have been spent supporting survivors to obtain protection and to regularise their status through more appropriate routes.
Why the DV Rule and DDVC is an effective model of protection for abused migrant women
The Domestic Abuse (DV) Rule and the Destitution Domestic Violence Concession (DDVC) were set up specifically to provide protection and support to abused migrant women on spousal visas. The system of protection created by the DV Rule and the DDVC therefore has the potential to provide a viable route to safety for all abused migrant women irrespective of their visa status.
The DV Rule was established in 2002, to enable those in the UK on a spouse or partner visa, to apply for Indefinite Leave to Remain (ILR) if they can show that they are victims of domestic abuse and meet other criteria. Applications are reviewed by a Home Office caseworker based on various forms of documentary evidence of abuse. The DDVC was introduced 2012, to allow those making applications under the DV Rule to access public funds for a three-month period, pending the outcome of their DV Rule application. The DDVC provides protection to survivors of abuse by enabling them to claim the benefits they need to access refuge or other safe accommodation, and gives them the space they need to obtain medical services, counselling and legal advice to submit ILR applications.
The DV Rule and the DDVC taken together have proved to be a vital lifeline for abused migrant survivors. This model of support and protection has helped to remove their economic dependency on abusers for survival and shelter; and has prevented abusers from threatening abuse, destitution and deportation should they exit abuse. As such, it is a model that works highly effectively, even though there is always room for improvement in terms of implementation. SBS has a 100% track record of assisting women with applications under the DV Rule because only those cases that meet the relevant criteria are taken on. Evidence from elsewhere also points to the viability of the DV Rule and DDVC as a system of protection. For instance, according to a Freedom of Information (FOI) request by the Guardian newspaper, in 2016, there were around 1,200 applications under the DV Rule every year, with a success rate of 70%. In 2018, 1210 DDVCs were granted, out of which 575 people were granted leave to remain.
On the other hand, the NRM is a flawed system of support and protection even for those who are accepted as trafficked or otherwise victims of modern slavery. In 2020, a coalition of anti-slavery organisations stated that whilst awaiting a conclusion decision, “many [victims of modern slavery] fall through the gaps and struggle to access accommodation, safeguarding, medical services, counselling, and legal advice”. It is also reported that many victims of modern slavery experience severe poverty in this time. According to the Anti-Trafficking Monitoring Group (ATMG) , victims are still opting out of entering the NRM because they cannot see how to do so would be in their best interest.
There is a broad consensus across the VAWG and anti-slavery and trafficking sector that the NRM is neither appropriate nor safe as a system of protection for abused migrant women. Instead, our experience and evidence show that it is more appropriate to extend the existing DV Rule and the DDVC to all abused migrant women on non-spousal visas with NRPF. The DV Rule and DDVC work together to form a highly effective model of protection for abused migrant women. It makes complete sense to apply this model to all abused migrant women irrespective of their immigration history. The consensus amongst those who work with abused migrant women is that the extension of the DV Rule and DDVC model to all migrant victims of abuse, irrespective of their visa status is both logical and necessary.
We urge the Government to build on the sound foundation that exists for the protection of abused migrant women, provided by the DV Rule and the DDVC. The Government must now extend the model to all abused migrant women on non-spousal visas and subject to the NRPF.
This briefing paper is endorsed by members of the Step Up Migrant Women coalition.
 The Anti-Trafficking Monitoring Group was established in 2009 to monitor the UK’s implementation of European anti-trafficking legislation. It comprises thirteen leading UK-based anti-trafficking organisations