The Habitual Residence Test: Impact on Domestic Violence Survivors

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The Habitual Residence Test Impact on Domestic
Violence Survivors

• London
• 19 January 2012

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Objectives of This Session

• 1. Identify challenges survivors of domestic
  violence and human trafficking often face in the
  context of the habitual residence test,
  particularly the right-to-reside component of the
  test.
• 2. Improve your ability to find solutions to
  these challenges.

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Topics We Will Cover

• The habitual residence test What is it?
• How the habitual residence test affects domestic
  violence survivors
• Strategies for helping domestic violence and
  survivors facing problems related to the habitual
  residence test.

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The Test
The problem will almost always be the
right-to-reside test.
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Domestic Violence What Is It?
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Domestic Violence and EU Free Movement Law The
Myths

• Abusive EEA nationals often lead victims to
  believe that
• The victims right to reside in the UK is
  dependent on maintaining the relationship with
  the abusive partner. No other family
  relationships count.

• If the abusive partner leaves the UK, the victim
  will lose her right to live here and will be
  removed.
• If the victim divorces the abusive partner or
  terminates the civil partnership, she will
  automatically lose her right to live and work
  here.

Photo Salil Biswas http//www.treklens.com/galler
y/Asia/India/photo90395.htm
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Facts Non-EEA Family Members of EEA Nationals

• Non-EEA national family members of EEA nationals
  are entitled to live, work and claim benefits in
  the UK as long as the EEA national is exercising
  treaty rights here.
• Family members include spouses, civil partners,
  children and stepchildren under 21, older
  children and stepchildren who are dependent, and
  dependent relatives in the ascending line.
• A marriage lasts until there is a final divorce
  decree. A civil partnership lasts until it is
  legally terminated.
• In certain circumstances, non-EEA family members
  can retain their residence rights after divorce
  or the end of the civil partnership.
• After five years, non-EEA family members can
  acquire permanent residence.

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Facts Retaining a Right of Residence If the EEA
Citizen Leaves the UK EEA Nationals

• Article 12(1) of Directive 2004/38
• The Union citizen's death or departure from the
  host Member State shall not affect the right of
  residence of his/her family members who are
  nationals of a Member State.
• This means that an EEA national family member
  will have his/her own right to reside if s/he
  begins to exercise treaty rights, e.g. by working
  or becoming self-employed.
• Problems frequently arise, however, for domestic
  violence survivors with childcare
  responsibilities, a lack of economic resources or
  housing, or medical or psychological problems
  resulting from the abuse (e.g. drug abuse
  problems).
• Additionally, abusers will often deliberately
  undermine a survivors efforts to find or keep
  employment (e.g. by calling the workplace
  frequently).

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Facts Retaining a Right of Residence If the EEA
Citizen Leaves the UKNon-EEA Nationals

• Article 12(3) of Directive 2004/38 The Union
  citizen's departure from the host Member State or
  his/her death shall not entail loss of the right
  of residence of his/her children or of the parent
  who has actual custody of the children,
  irrespective of nationality, if the children
  reside in the host Member State and are enrolled
  at an educational establishment, for the purpose
  of studying there, until the completion of their
  studies.
• Ibrahim (European citizenship) (ECJ 2010)
• The children of a national of a Member State who
  works or has worked in the host Member State and
  the parent who is their primary carer can claim a
  right of residence in the latter State.
• A non-EEA Ibrahim parent is not required to have
  comprehensive sickness insurance or sufficient
  resources to prevent them from becoming a burden
  on the UK social assistance system.

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Facts Retaining a Right of Residence After a
Divorce

• Article 13 of Directive 2004/38 provides that the
  spouse of an EEA national exercising treaty
  rights can retain a right to reside in the UK
  following a divorce, annulment or termination of
  civil a partnership if

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• The spouse/partner is an EEA national and is
  exercising her own treaty rights, or begins to do
  so.
• Prior to the initiation of the divorce or
  annulment proceedings or the termination of the
  civil partnership, the marriage or partnership
  has lasted at least three years, including at
  least one year in the UK.
• The spouses/partners agree, or the court
  orders, that the non-EEA parent will have custody
  of the couples children.
• The retention of residence rights is warranted
  by particularly difficult circumstances,
  including domestic violence that occurred during
  the marriage/partnership.
• Under some circumstances, when the non-EEA
  spouse/partner has a right of access to a minor
  child.
• Non-EEA nationals fulfil the conditions for
  qualifying as a worker, self-employed person or
  self-sufficient person. This can be problematic
  for domestic violence survivors.

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Challenge Timing of the Divorce

• Regulation 10(5)(b) of the Immigration (European
  Economic Area) Regulations 2006, together with
  Amos v SSHD, provides that in order for rights to
  be retained, the EEA national spouse must be in
  the UK and exercising treaty rights immediately
  before the divorce or termination of civil
  partnership.

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Proving Abuse The UKBA European Casework
Instructions

• Best evidence
• A relevant conviction
• An injunction, non-molestation order or other
  protection order
• Full details of a relevant police caution (Home
  Office will check Criminal Records Office)
• Claim that a prosecution is pending (Home Office
  will have to check, can grant DLR in the interim)
• Other evidence submit two or more
• Medical report from a hospital doctor confirming
  injuries consistent with domestic violence
• Letter from a family practitioner who has
  examined the survivor and found injuries
  consistent with domestic violence
• Undertaking given to a court that the perpetrator
  of the violence will not approach the victim
• Police report confirming attendance at the
  survivors home as the result of a domestic
  violence incident
• Letter from a social services department
  confirming its involvement in connection with
  domestic violence
• Letter of support or report from a womens refuge

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Challenge When the Abuser is the Only Source of
EU Rights

• Case Study 1
• Marie is a Senegalese national who married a
  French national in 2010. In May 2011, her husband
  came to the UK to work, and she joined him in
  June. Since her arrival, she has been
  self-employed part-time as a cleaner. In
  December, she fled the marital household due to
  severe physical abuse. She and her husband are
  now separated but not divorced. They have no
  children. Her husband has refused to provide her
  with any of his payslips or other documentation
  that would show he is working, and has threatened
  to harm her if she contacts his employer. She has
  no other family members in the UK, and her
  husband kept all of the money she earned through
  her self-employment. She is now homeless and
  would like to claim benefits.

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Access to Evidence Amos v SSHD
In Amos v Secretary of State for the Home
Department (2011), the Court of Appeal ruled that
the Home Office is not required to help family
members obtain proof that an EEA national is
working or otherwise exercising treaty rights.

• However, it is possible to
• Use Rules 45, 50 and 51 of the Asylum and
  Immigration Tribunal (Procedure) Rules 2005 to
  introduce evidence that would be inadmissible in
  a court of law, or ask the tribunal to summon a
  witness or compel the government to produce
  information. See also Rules 15 and 16 of the
  Tribunal Procedure (Upper Tribunal) Rules 2008.
• Try to get the UKBA to obtain information from
  HMRC, which is allowed under section 40 of the UK
  Borders Act 2007. This can be very difficult.

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Challenge Abusive Partners in Prison

• Case Study 2
• Anna is a Thai national married to a German
  national. The couple came to the UK in June 2011,
  and the husband began working. Throughout the
  marriage, the husband committed violent acts
  against Anna. In late 2011, the husband beat
  Anna with an iron bar, was arrested and was
  ultimately sentenced to a prison term. While he
  is in prison in the UK, does Anna have a right to
  reside here?
• This issue remains unsettled. OA (Prisoner Not
  a qualified worker) Nigeria (UKAIT 2006)
  suggests, without establishing, that the answer
  is no. Meanwhile, CJEU jurisprudence concerning
  Turkish nationals suggests that the answer may be
  yes.

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Challenge Primary Carers of Young Children

• Abusive partners often refuse to allow their
  victims to have any money or other resources.
• This means many domestic violence survivors with
  young children feel compelled to stay with their
  abusers because they cannot pay for childcare if
  they leave and try to take up work.
• Local authorities may then threaten to take the
  child away from the home where the abuse is
  occurring, or they may threaten to take the child
  away from an EEA victim who leaves the home but
  cannot become economically active.

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Challenge Chen Parents

• Under the ECJs ruling in Zhu and Chen and the
  Immigration (European Economic Area) Regulations
  2006, self-sufficient EEA national children are
  entitled to be joined by their primary carers.
• If the domestic violence survivor has a child who
  is an EEA national but is too young to be
  enrolled in compulsory education, she will not
  qualify as an Ibrahim parent, but she may still
  have a right to live in the UK as a Chen parent.
• Prior to the Courts ruling in Zambrano, the UK
  maintained that Chen parents could not work or
  claim benefits. In the wake of Zambrano,
  however, Chen parents rights are unclear.

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Challenge Homelessness

• Because abusers frequently deprive their victims
  of money and other resources, domestic violence
  survivors who flee the home often find themselves
  homeless.
• The AIRE Centre will sometimes come across a
  homeless EEA national who has received a letter
  from UKBA saying that they want to interview her
  to see if she is exercising treaty rights.
• This is part of a pilot scheme to expel EEA
  nationals for not exercising treaty rights.
• The AIRE Centre has won one such case already in
  the Tribunal by showing that
• the person had become a jobseeker in the
  meantime and
• because she has been here five years and her
  partner was here, expulsion was disproportionate.

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Talking to Clients About Domestic Violence

• For both cultural and psychological reasons, some
  clients may not realise that things an abuser has
  done constitute domestic violence.
• Examples of questions an adviser can ask to start
  a discussion about these things include
• Has your spouse/partner ever done anything to you
  that made you physically uncomfortable or put you
  in pain? (E.g. pushing, pulling hair,
  scratching, burning, kicking, hitting, twisting
  arm)
• Has your spouse/partner ever made you do anything
  sexually that you didnt want to do?
• Has your spouse/partner ever threatened you?
  Have they ever done anything to intimidate you,
  e.g. smashing or throwing things?
• Does your spouse/partner say things that
  embarrass you or make you feel bad about
  yourself?
• Does your spouse/partner let you have your own
  money?
• Does your spouse/partner let you visit and talk
  to your family and friends?
• Does your spouse/partner follow you or monitor
  what you do?
• Does your spouse/partner hurt or threaten to hurt
  your children, or threaten to take them away?
• Does your spouse/partner mistreat children,
  family members or animals in order to frighten
  you or make you feel bad?

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• The UKBA European Casework Instructions generally
  require documentation of physical abuse to
  establish domestic violence, even though many
  survivors report that psychological abuse does
  more long-term harm than physical abuse.
• For advisers, asking about a broad range of types
  of abuse can help to elicit a fuller picture of
  the situation and may eventually prompt the
  victim to disclose information about physical or
  sexual abuse.
• Remember that both men and women can suffer
  domestic violence, and that domestic violence can
  occur between same-sex couples.

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Summary Questions to Ask to Determine Whether a
DV Survivor Has a Right to Reside In the UK

• Are you an EEA national?
• How long have you lived in the UK? (Five years
  can lead to permanent residence one year of the
  marriage can lead to retained rights)
• Are you married or in a civil partnership? When
  did the marriage/partnership begin?
• Is your spouse/partner exercising treaty rights
  in the UK?
• Do you have any other family members in the UK?
  If you have children here, what are their
  nationalities? Are they in school? Are you the
  primary carer/parent with custody? If not, do
  you have a right of access?
• What evidence do you have of the abuse? Has the
  abuse ever led to any interactions with the
  police, other authorities, the hospital or your
  doctor? Have you ever gone to a womens refuge?

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Questions?