The Habitual Residence Test:
Impact on Domestic Violence
Survivors
London
19 January 2012
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.
Topics We Will Cover
1. The habitual residence test: What is it?
2. How the habitual residence test affects
domestic violence survivors
3. Strategies for helping domestic violence and
survivors facing problems related to the
habitual residence test.
The Test
‘Actual’
habitual
residence
Not a
person
from
abroad
Right to
reside
The problem will almost always be the rightto-reside test.
Domestic Violence: What Is It?
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
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.
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).
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 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.
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…
•
… 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 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, selfemployed person or self-sufficient person. This can be problematic for domestic
violence survivors.
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.
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
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.
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.
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.
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.
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 Ibrahim parent, 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.
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.
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?
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 samesex couples.
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?
Questions?