The Habitual Residence Test: Impact on Domestic Violence Survivors

1. The Habitual Residence Test: Impact on Domestic Violence Survivors London 19 January 2012

2. 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.

3. 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.

4. The Test The problem will almost always be the right-to-reside test.

5. Domestic Violence: What Is It?

6. Domestic Violence and EU Free Movement Law: The Myths Abusive EEA nationals often lead victims to believe that: The victim’s 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/gallery/Asia/India/photo90395.htm

7. 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.

8. 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 survivor’s efforts to find or keep employment (e.g. by calling the workplace frequently).

9. Facts: Retaining a Right of Residence If the EEA Citizen Leaves the UK:Non-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 workedin 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.

10. 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…

11. … 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 custodyof the couple’s 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.

12. 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.

13. 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 survivor’s 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 women’s refuge

14. 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.

15. 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.

16. 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.

17. 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.

18. Challenge: Chen Parents Under the ECJ’s 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 Ibrahimparent, but she may still have a right to live in the UK as a Chen parent. Prior to the Court’s 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.

19. 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.

20. 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 didn’t 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?

21. 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.

22. 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 women’s refuge?

23. Questions?