An article by leading immigration Barrister Colin Yeo for the Guardian.
The stated intention of the domestic violence immigration rule is to prevent a woman from being trapped in an abusive relationship in order to get status in the UK. Normally, she must remain in the relationship in order to get permanent leave to remain in the UK. This rule provides an escape route. It is a noble and well-intentioned rule but the unlawful, restrictive and plain ignorant approach of officials makes it virtually impossible for many genuine victims of domestic violence to succeed. And yet, the UK Border Agency (UKBA) routinely refuses immigration applications from women who are victims.
Cases where there is no court conviction of the man in question, or alternatively without evidence from an “independent and objective” source, are rejected out of hand without any proper consideration of the evidence that is available. Even police and domestic violence shelter letters of support are considered inadequate evidence if they are deemed to rely on the word of the victim rather than direct witnessing of the violence in question.
This approach may seem reasonable at first blush. Cases must be supported by evidence, after all, and it would be wrong to assume without evidence that the men in question are indeed perpetrators of domestic violence. In truth, though, the approach followed by officials is perverse and withholds protection from those who most need it. Domestic violence belongs to the private sphere: it is part of its pernicious nature. There are normally no direct witnesses and there are very few convictions, despite its prevalence. The requirement for “independent and objective” evidence of a private act would therefore make Kafka, well, blush.
I recently represented a woman who submitted two police reports, letters of support from various domestic violence help organisations, reams of abusive, threatening and violent text messages and emails and witness statements from many friends and family members who had witnessed her partner’s abusive and erratic behaviour. Most of this evidence dated to well before the marriage had broken down, and before the woman could conceivably have been interested in preparing for an immigration application based on domestic violence. Still, this was not enough, and the case was initially rejected on the grounds that much of the evidence could be forged (not that it had been, only that it could be) and the rest was from people who had not themselves directly witnessed actual violence.
Essentially, the official was suggesting, without ever saying so, that from the day she entered the UK the woman had lied to the police, lied to her friends and family, and had herself sat down and written tens of pages of text messages and email exchanges. There was, of course, no evidence to support this bizarre theory and there was nothing in the paperwork or evidence itself to suggest that it was false or forged. The official seemed to be ignorant of basic information on domestic violence. For example, the fact that 44% of victims experience it repeatedly, that on average 35 assaults occur before the police are called, and that only between 23% and 35% of incidents are reported to authorities.
This is certainly not the only example I have come across recently, and other lawyers and organisations report similar experiences.
Other departments of the previous government recognised that the private nature of domestic violence makes victims peculiarly vulnerable, but at UKBA some officials prefer to turn a blind eye. The courts and UKBA’s own policy on this type of application clearly state that all relevant evidence must be considered, although UKBA policy says that reports from those who have not directly witnessed the abuse should be “treated with caution”.
The problem lies not so much in the policy or the law. It is in the culture of disbelief so prevalent amongst officials at UKBA and in their sheer ignorance of the complexities of the cases they have to decide. Instead of engaging with the available evidence and making a judgment on whether the woman is telling the truth, artificial and arbitrary evidential requirements are imposed.
Officials need to get out from behind their filing cabinets. They need to meet the people whose lives they hold in their hands. It is only if they have some understanding and empathy that officials can make decent and high quality decisions. Source: Colin Yeo for guardian.co.uk
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