Briefing for a prayer against Statement of changes in immigration rules HC 908
Domestic violence: UK border agency’s new immigration rules wholly at odds with home office violence against women strategy
The Immigration Law Practitioners’ Association urges peers and MPs to pray against the latest Statement of Changes in Immigration Rules, HC 908, laid before parliament on 31 March 2011 and due to come into force on 6 April 2011, because of the risk it poses to survivors of domestic violence.
ILPA considers that the gravity of the matters at stake is a reason for MPs and Peers to seek to pray against the Statement of Changes before they come into force next Wednesday.
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HC 908 imposes a requirement to be free of criminal convictions at the time of applying for settlement on those applying under the domestic violence rule. The Immigration Law Practitioners’ Association has written to the Home Secretary and Equalities Minister, the Rt Hon Theresa May MP, as well as to the Minister for Immigration, Damian Green, urging them to amend the rules as a matter of urgency and withdraw the requirement before it comes into force. We understand that the Violence Against Women team in the Home Office were not consulted about the changes, which ILPA has brought to their attention.
The domestic violence rule exists to ensure that people do not remain trapped in abusive relationships because of fears about their immigration status. Where a person can demonstrate to the satisfaction of the UK Border Agency that their marriage or civil partnership has broken down because of domestic violence, so that they are no longer in a position to apply to remain in the UK on the basis of that relationship, they can be given permission to remain in the UK on the basis of being a survivor of domestic violence.
Requirements to be free of unspent convictions at the time of making an application for settlement are imposed upon a wide range of immigration categories by the Statement of Changes in Immigration Rules HC 863, which was laid before parliament on 16 March 2011 and is also due to come into force on 6 April 2011. HC 863 did not impose the requirement upon those applying under the domestic violence rule.
The Immigration Rules already contain provisions which give the UK to refuse an application for settlement in any category because of a person’s character. These provisions are discretionary provisions. The difference between them and the proposed provisions relating to unspent criminal convictions is that the existing provisions are discretionary; UK Border Agency officials can decide whether or not they wish to invoke them. The new provisions would be mandatory; officials would have no choice but to refuse the application.
If a person in any category other than the domestic violence category wishes to make an application for settlement but is not confident that their application will succeed, they can make an application for further time-limited leave instead. This option is not open to victims of domestic violence. A person is initially given 27 months ‘probationary’ leave as a spouse or civil partner and must, before that leave expires, apply for settlement (indefinite leave to remain) as a spouse or civil partner. If the relationship breaks down during the probationary period the person is expected to leave the UK save that, if the relationship has broken down because of domestic violence, the person can apply for settlement under the domestic violence rule. There is no prospect of their applying for further limited leave on the basis of the relationship; that is gone.
There were discrete errors in the provisions relating to being free of unspent convictions at the time of applying for settlement in HC 863, which the Immigration Law Practitioners’ Association drew to the attention of the UK Border Agency and which are now to be corrected by HC 908, the Statement of Changes in Immigration Rules laid on 31 March. For example the 16 March 2011 rules had applied the requirement to have no unspent convictions to entry clearance applications for spouses and civil partners rather than to applications for settlement as had been the Government’s intention, as set out in the Explanatory Note to the Statement of Changes. In the course of correcting these errors; the UK Border Agency introduced a further change, which was to impose the requirement upon those applying under the Domestic Violence rule.
The Home Secretary and Equalities Minister, the Rt Hon Theresa May MP, launched the UK’s Action Plan on Violence Against Women on 8 March 2011. She stated:
“No level of violence against women and girls is acceptable in modern Britain or anywhere else in the world… My ambition is nothing less than ending violence against women and girls and our strategy document will outline our commitments to seeing this become a reality. 
The Action Plan emphasises the importance of victims being able to come forward, and indicates a hope that reporting rates would be improved. The Action Plan constitutes a response to the review undertaken by the Baroness Stern, which particularly focused on victims of rape (some of whom will be victims of domestic violence), and the International Day for the Elimination of Violence against Women. The Plan (point 40) expressly acknowledges migrant women victims of domestic violence and the importance of the domestic violence Rule, and identifies positive developments the Government intends to make to support these women while their indefinite leave to remain applications are pending. The Action Plan also indicates (at paragraph 87) that the Ministry of Justice will provide a framework of guidance that will offer models of support and direction to all those working with women offenders and women at risk of offending to enable them to respond more effectively to those who have been affected by abuse or violence.
HC 908 also contains all the provisions to implement the Government’s changes to the immigration rules pertaining to students. Parliamentarians will be aware that is not possible for parliament to amend a Statement of Changes in the course of a prayer; it can only approve or disapprove the instrument as a whole. If there are parliamentarians who wish to speak in any debate on a prayer on the subject of the other provisions of the rules ILPA would be very happy to answer any questions and to provide further briefing material if required.
For further information please get in touch with Alison Harvey, General Secretary, Immigration Law Practitioners’ Association firstname.lastname@example.org, 0207 2518383 or 0207 608 3680 or Steve Symonds, Legal Officer, on 0207 490 1553 email@example.com
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