Domestic Abuse: immigration and nationality legal aid

Domestic Abuse Bill – in a Public Bill Committee on 17th June 2020.

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“(1) The Legal Aid, Sentencing and Punishment of Offenders Act 2012 is amended as follows: in Part 1 of Schedule 1, delete paragraphs 28 and 29 and insert—

“Immigration and nationality: victims of domestic abuse

27A (1) Civil legal services provided to a victim of domestic abuse in relation to rights to enter, and to remain in, the United Kingdom and to British citizenship, but only in circumstances arising from that abuse.

27B (2) Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this Schedule.

27B (3) The services described in sub-paragraph (1) do not include attendance at an interview conducted on behalf of the Secretary of State with a view to reaching a decision on an application.

27B (4) In this paragraph—

“domestic abuse” has the same meaning as in section 1 of the Domestic Abuse Act 2020;

“victim” includes the dependent child of a person who is a victim of domestic abuse.””—(Jess Phillips.)

This new clause would provide for legal aid for survivors of domestic abuse (and their dependent children) in relation to their immigration or nationality status or rights insofar as the need for legal aid arises from the abuse.

Brought up, read the First time, and Question proposed (this day), That the clause be read a Second time.

Question again proposed.

Photo of Peter Bone Peter Bone Conservative, Wellingborough

I remind the Committee that with this we are discussing the following:

New clause 35—Victims of domestic abuse: leave to remain—

“(1) The Secretary of State must, within 3 months of this Act being passed, lay a statement of changes in rules made under section 3(2) of the Immigration Act 1971 (“the immigration rules”) to make provision for leave to remain to be granted to any person subject to immigration control who is a victim of domestic abuse in the United Kingdom.

(2) The statement laid under subsection (1) must set out rules for the granting of indefinite leave to remain to any person subject to immigration control who is a victim of domestic abuse in the United Kingdom; and the statement must provide for those rules to be commenced no later than one month of the laying of the statement.

(3) The Secretary of State must make provision for granting limited leave to remain for a period of no less than 6 months to any person eligible to make an application under the immigration rules for the purposes of subsection (2); and such leave shall include no condition under section 3(1)(c)(i), (ia), (ii) or (v) of the Immigration Act 1971.

(4) The Secretary of State must make provision for extending limited leave to remain granted in accordance with subsection (3) to ensure that leave continues throughout the period during which an application made under the immigration rules for the purposes of subsection (2) remains pending.

(5) Where subsection (6) applies, notwithstanding any statutory or other provision, no services shall be withheld from a victim of domestic abuse solely by reason of that person not having leave to remain or having leave to remain subject to a condition under section 3(1)(c) of the Immigration Act 1971.

(6) This subsection applies where a provider of services is satisfied that the victim of domestic abuse is eligible to make an application to which subsection (3) refers.

(7) The Secretary of State must, for the purposes of subsection (5), issue guidance to providers of services about the assessment of eligibility to make an application to which subsection (3) refers.

(8) In this section an application is pending during the period—

(a) beginning when it is made,

(b) ending when it is finally decided, withdrawn or abandoned, and an application is not finally decided while an application for review or appeal could be made within the period permitted for either or while any such review or appeal remains pending (meaning that review or appeal has not been finally decided, withdrawn or abandoned);

“person subject to immigration control” means a person in the United Kingdom who does not have the right of abode;

“provider of services” includes both public and private bodies;

“services” includes accommodation, education, employment, financial assistance, healthcare and any service provided exclusively or particularly to survivors of domestic abuse.”

This new clause would make provision in the immigration rules for the granting of indefinite leave to remain to migrant survivors of domestic abuse and limited leave to remain to a survivor who is eligible to make an application for indefinite leave to remain.

New clause 36—Recourse to public funds for domestic abuse survivors—

“(1) The Immigration Acts are amended as follows.

(2) In section 115 of the Immigration and Asylum Act 1999 after subsection (10) insert—

“(11) This section does not apply to a person who is a victim of domestic abuse in the United Kingdom.”

(3) In paragraph 2(1) of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 after sub-paragraph (b) insert—

“(ca) to a person who is a victim of domestic abuse in the United Kingdom, or”

(4) In section 21 of the Immigration Act 2014 at the end of subsection (3) insert “or if P is a victim of domestic abuse”.

(5) In section 3 of the Immigration Act 1971 after subsection (1) insert—

“(1A) The Secretary of State may not make or maintain a condition under subsection (1)(c)(ii) on leave granted to a victim of domestic abuse in the United Kingdom; and it is not a breach of the immigration laws or rules for such a victim to have recourse to public funds.”

(6) For the purposes of this section, evidence that domestic abuse has occurred may consist of one or more of the following—

(a) a relevant conviction, police caution or protection notice;

(b) a relevant court order (including without notice, ex parte, interim or final orders), including a non-molestation undertaking or order, occupation order, domestic abuse protection order, forced marriage protection order or other protective injunction;

(c) evidence of relevant criminal proceedings for an offence concerning domestic violence or a police report confirming attendance at an incident resulting from domestic abuse;

(d) evidence that a victim has been referred to a multi-agency risk assessment conference;

(e) a finding of fact in the family courts of domestic abuse;

(f) a medical report from a doctor at a UK hospital confirming injuries or a condition consistent with being a victim of domestic abuse;

(g) a letter from a General Medical Council registered general practitioner confirming that he or she is satisfied on the basis of an examination that a person had injuries or a condition consistent with those of a victim of domestic abuse;

(h) an undertaking given to a court by the alleged perpetrator of domestic abuse that he or she will not approach the applicant who is the victim of the abuse;

(i) a letter from a social services department confirming its involvement in providing services to a person in respect of allegations of domestic abuse;

(j) a letter of support or a report from a domestic abuse support organisation; or

(k) other evidence of domestic abuse, including from a counsellor, midwife, school, witness or the victim.

(7) For the purposes of this section—

“domestic abuse” has the same meaning as in section 1 of the Domestic Abuse Act 2020;

“victim” includes the dependent child of a person who is a victim of domestic abuse.”

This new clause seeks to ensure that certain provisions under the Immigration Acts – including exclusion from public funds, certain types of support and assistance and the right to rent – do not apply to survivors of domestic abuse.

Photo of Victoria Atkins Victoria Atkins The Parliamentary Under-Secretary of State for the Home Department

Before we adjourned for lunch, I was speaking about county lines gangs, to demonstrate how vulnerable people can continue to be manipulated and exploited for the aims and advantages of those who are doing the manipulation. When we talk about county lines gangs, most people think of boys and young men being recruited, but we are now getting stories about girls being recruited—not necessarily to do the drug running, although they can be used by the perpetrators to conceal weapons and drugs, but to launder the proceeds of crime.

The perpetrators, the gang leaders, are very deliberately recruiting young women because they want to use their bank accounts, and they do so on the basis that because someone is a girl or young woman, the authorities will not trace her, track her or be on the lookout for her as much as they would be—they say—for young men. They also tell the girls, as part of their manipulation, that even if they do get caught, the consequences, because they are girls, will not be so bad for them.

I say that because in the context of the argument about manipulation and how perpetrators can use and skew systems to their advantage, I am highly cynical when it comes to the ability of perpetrators to do that. That is one reason why, when we talk about how careful we have to be about how the system is constructed, so that it cannot be misused, I do so very much with those cynical perpetrators in mind.

I will return to the fundamental principle of providing support, on which we all agree. It is why, as part of our journey to discovering the scale and extent of the problem but also the most effective ways of helping migrant women or people with no recourse to public funds, we have allocated £1.5 million to a pilot project to support migrant victims to find safe accommodation and services. In addition to offering emergency support, the pilot will be designed to assess the gaps in existing provision and gather robust data that will help to inform future funding decisions. The review that we have been carrying out and are due to publish, or aim to publish, by Report stage, has highlighted that there are significant gaps in the evidence base for migrant victims who are not eligible for the destitution domestic violence concession.

Since 2017, we have provided more than £1 million from the tampon tax fund to support migrant victims with no recourse to public funds. That has helped to deliver much-needed support for a number of individuals, but regrettably the funding has not provided the necessary evidence base to enable us to take long-term decisions. The evidence is at best patchy as to the kinds of circumstance in which support is most needed, how long victims need support, what kind of support works best and how individuals can leave support to regain their independence. That demonstrates a need for further work to ensure that we have a strong evidence base from which we can make sound decisions, and that is what the pilot fund is for.

Photo of Peter Kyle Peter Kyle Shadow Minister (Justice)

May I ask the Minister to clarify her comments? Some people could interpret them to mean that the evidence not being there is a reason not to provide any service for some people, whereas some service might be provided for some people by the pilot. Can the Minister clarify that the Government will look at how they can give as much provision for as many people as possible until we are able to get the evidence to better target it going forward?

Photo of Victoria Atkins Victoria Atkins The Parliamentary Under-Secretary of State for the Home Department

I very much appreciate the way in which the hon. Gentleman raised that. We have systems in place at the moment. I hope that, particularly on the topic of legal aid, I have been able to provide examples of women who were not eligible for DDVC getting access to legal aid support. We accept that there is more to do. We are coming at the matter with an open mind and an open heart. We want to get the evidence, so that in due course we can put in place the systems that will provide the best support. That, as well as helping people in their immediate circumstances, is the intention behind the pilot project.

I turn now to the matter of immigration control. We believe that lifting immigration controls for all migrant victims of domestic abuse is the wrong response. Successive Governments have taken the view that access to publicly funded benefits and services should normally reflect the strength of a migrant’s connections to the UK and, in the main, become available to migrants only when they have settled here. Those restrictions are an important plank of immigration policy, operated, as I have said, by successive Governments and applicable to all migrants until they qualify for indefinite leave to remain. The policy is designed to assure the public that controlled immigration brings real benefits to the UK and does not lead to excessive demands on the UK’s finite resources, and that public funds are protected for permanent residents of the UK.

Exceptions to those restrictions are already in place for some groups of migrants, such as refugees or those here on the basis of their human rights, where they would otherwise be destitute. Those on human rights routes can also apply to have their no recourse to public funds condition lifted if their financial circumstances change. Equally, migrant victims on partner visas can already apply for the destitution domestic violence concession, to be granted limited leave with recourse to public funds.

However, lifting restrictions for all migrant victims would enable any migrant, including those here illegally, to secure leave to remain if they claim to be a victim of domestic abuse. For the reasons I have set out, we believe that the provisions in new clause 35 would be open to abuse and undermine the legitimate claims of other migrant victims and the public support on which our immigration system relies.

Photo of Jess Phillips Jess Phillips Shadow Minister (Home Office)

Will the Minister outline exactly why she thinks the new clause would give everyone indefinite leave to remain? That is certainly not the case, if I may speak so boldly. We are asking for limited leave to remain for a six-month period, with a view to making an application for indefinite leave to remain. Will the Minister just highlight that the Home Office, even in the case of spousal visas, still has every right to refuse indefinite leave to remain to anyone it likes?

Photo of Victoria Atkins Victoria Atkins The Parliamentary Under-Secretary of State for the Home Department

I am grateful to the hon. Lady for clarifying. I am afraid that that is not the interpretation that lots and lots of officials who have pored over the new clauses have drawn. Perhaps that highlights the complexity of the area and the law. We have to be absolutely clear about our phrasing and intentions when we draft clauses that will have a huge impact on immigration policy, over and above the cases of the immediate victims whom we seek to help.

Photo of Jess Phillips Jess Phillips Shadow Minister (Home Office)

Does the current system of domestic violence destitution and the DV rule guarantee indefinite leave to remain for those on spousal visas? If it were extended to other groups, surely they would live under the same rules.

Photo of Victoria Atkins Victoria Atkins The Parliamentary Under-Secretary of State for the Home Department

I do not want to labour the point, but the purpose and remit of the DDVC and the domestic violence rule has been misunderstood. The DDVC and the rule were, and are, intended to provide a route to settlement for migrant victims who hold spousal visas, because they have a legitimate expectation of staying in the UK permanently. That is the nature of their status. That is why we say it is not, sadly, an easy transfer across for people on other types of visas, such as visitor visas—or, indeed, for people who have arrived here illegally. That is why it is a painstaking process to work out what we can do to help such victims with the immediate circumstances of their abuse, so that the immigration system plays its part and takes its course in the way that it would do for anyone on those different types of visas.

I appreciate the sensitivities of talking about illegal immigrants, but it is important to acknowledge that we have to balance the interests of people who apply properly for immigration routes, as well as the immigration interests of individual victims. That is why the Government keep coming back to the argument that the starting point for the process should not be people’s immigration status; it should be the care that they need to help them flee an abusive relationship, giving them the support they need to recover from that and to lead happier and healthier lives.

I talked about the human rights routes. People on human rights routes can also apply to have their no recourse to public funds condition lifted if their financial circumstances change. Equally, migrant victims on partner visas can already apply for the DDVC to be granted limitedly, with recourse to public funds. We are committed to the needs of victims, which is why we have introduced the pilot to help us understand the particular pressures and needs of these vulnerable people.

I started my speech by setting out the Government’s commitment to helping victims. I made the point that victims must be treated as victims and get the help they need. That is absolutely what we are focused on, which is why the next steps in our programme of work in this very difficult area are to publish the results of the review and then conduct the pilot, so that we can assess and implement the practical support that these vulnerable people need.

Photo of Jess Phillips Jess Phillips Shadow Minister (Home Office)

Let me explain to somebody who may never have filled in a domestic violence destitution fund form or have had to apply the DV rule in this or any of its forms. The reality is that even if someone has a spousal visa, it does not guarantee them indefinite leave to remain. They still have to apply through every single one of the same rules through which they would ordinarily apply—unless the Home Office is changing the policy and saying that anyone who applies will automatically be given leave to remain. That is absolutely not my experience.

There is a problem when I stand here representing my experience of years in the field, and with masses of experience of immigration cases in my constituency—more, I feel safe in saying, than any hon. Member present, except perhaps the hon. Member for Cities of London and Westminster. It is very difficult when Ministers say that what I have experienced is not the case, or that all the victims who have given evidence—some of whom are our friends or family, and certainly our constituents—are wrong to say that the system does not work. There are lists of easements, but the reality on the ground is completely different. I understand what the Minister is saying and certainly what hon. Members want to see with regard to evidence gathering. Lord knows we live in a time when policy is made very quickly, and some people will prove that we needed better evidence for some of it. We live in interesting times. I have absolutely no doubt that that is what is required.

I do not see the point of a review if the evidence is not taken up by the Home Office. Even if all the evidence pointed the other way, I cannot see that the Home Office would come up with a different argument. The desire of all of us for the evidence is a sort of moot point. We are trying in this Bill to protect victims of domestic violence—it’s literally what it says on the tin.

Photo of Peter Kyle Peter Kyle Shadow Minister (Justice) 2:15 pm, 17th June 2020

Am I right in thinking that the argument my hon. Friend is trying to make is that this is the point in the Bill where evidence rubs up against raw politics. That is the problem. People who have submitted evidence, including verbal evidence, to this Committee and frontline practitioners have said one thing. The evidence is there. The Government say that they like to view and take into account evidence, but the politics is the barrier here.

Photo of Jess Phillips Jess Phillips Shadow Minister (Home Office)

I think it is. I do not get any uptick in sticking up for this group of people because migrant communities are not allowed to vote. People have seen a problem and they are trying to fix it. It is as simple as that. On the issue of leave to remain, I hear what—

Photo of Victoria Atkins Victoria Atkins The Parliamentary Under-Secretary of State for the Home Department

I rise to protect my officials more than anything else. New clause 35(2) states:

“The statement laid under subsection (1) must set out rules for the granting of indefinite leave to remain to any person subject to immigration control who is a victim of domestic abuse in the United Kingdom”.

That is the hon. Lady’s new clause, and that is how we have read it.

Photo of Jess Phillips Jess Phillips Shadow Minister (Home Office)

Okay. That is absolutely fine. I was about to say to the Minister that I hear what she says about the concern that we might let a few too many in the country. I will take the issue up on Third Reading and speak about it every day until we get to Report and I will ensure that people speak about it in the Lords.

The Minister has probably never taken a call in a refuge and had to tell someone that they could not come because they had no recourse. She can say that I speak with my heart and not my head, but I have had to use my head to turn women away. I have had to have women’s children removed from them.

I do not act as an emotional being; I am emotional about the right thing to do. We are here to protect victims of domestic violence. We do not expect to ask them which countries they have travelled from when they present. I will take away what the Minister says about possible confusion. The amendments that will be laid before the House will be clear that, just as for those on spousal visas, there is no guarantee whatever of indefinite leave to remain, as the Minister well knows, in the scheme.

In fact, not everybody gets indefinite leave to remain. The data collected centrally is widely available. All we ask is that for a period everybody will be able to access support and be given a fair chance to make an immigration application. It is as simple as that. I do not want to stand here and let it pass. The point still stands whether we want to call them illegal or whether we want to talk about which particular visa they might have. If anyone does not have asylum accommodation in their constituency, they are free to come to mine to see whether they would like to put victims of domestic violence in it. It’s really cracking.

There will be people exactly as I have outlined. It does not matter what sort of visa they are on. As I have said, there will be people who we come across every day to whom we are currently saying, “This Bill isn’t for you. This Bill doesn’t help you; I am sorry you got beaten up, but you are on your own.” That is the reality of this law, until it is changed. I will do everything I can to change it and I have a better chance of doing that in front of the whole House—either this one or the other place. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.