Immigration Issues

SOME BASIC FACTS ON IMMIGRATION INCLUDING THE “TWO YEAR RULE”

·        Women in doubt about their immigration status should be referred for specialist advice to a local Law Centre, or a specialist advisor. Since April 2001 immigration advisors, apart from solicitors or barristers, must be registered with the Office of the Immigration Services Commissioner – the OISC website can be used to find details of immigration advisers in a local area, and the Legal Services Commission lists solicitors and law centres which can give immigration advice. It is an extremely common threat for abusive men to argue deportation will be the consequence if their partners leave or seek help, even when this is untrue – organisations such as the Joint Council for the Welfare of Immigrants and Southall Black Sisters can offer advice. 

·        It is important not to make the assumption that only or all black or minority ethnic women are migrants. More white people enter this country each year than black or minority ethnic people. Immigration and nationality laws are very complex and are applied inconsistently, generally discriminating against black women most severely. 

·        If a marriage breaks down after a women has been granted settlement (that is, indefinite leave to remain) in this country, it will not affect her immigration status. The only exception to this is if the Home Office believes (and can prove) that settlement was granted through deception, for example, the couple had never intended to stay together. However, this is very rare. 

·        An applicant, under the immigration rules, may be granted indefinite leave to enter immediately on application to an entry clearance officer abroad if they are married, or unmarried but in a relationship akin to marriage and have lived abroad for four years more. The immigration rules say that other marriage or unmarried partner applicants (who must be 18 years or over if from outside the EU) will be subject to a two year probationary period, the non-settled spouse or unmarried partner may lose her right to settle in the UK. She may be able to appeal a refusal to remain, or she may apply to stay on other grounds e.g. by fitting into other immigration rules or by showing that her human rights would be breached if she were forced to leave the UK. Specialist legal help should be sought for her application. 

·        From the 1 April 2003 the Immigration rules included provision relating to people subject to domestic violence: an application may be made as soon as it is relevant to the Home Office asking for indefinite leave to remain to be granted to person who is the victim of domestic violence during their limited (probationary) leave to enter or remain in the UK as the spouse or unmarried partner of a person present and settled here, and domestic violence was the reason for the marriage or relationship breakdown, and the applicant is no longer living with the sponsor. There needs to be proof that domestic violence tool place; such as an injunction, non-molestation order or other protection order made against the sponsor, a relevant court conviction, or full details of a relevant police caution against the sponsor. Other evidence may include a medical report or GP letter, a police report, a court undertaking or a letter from social services or a women’s domestic violence service/refuge-generally, more than one of these types of evidence will be needed. Domestic violence services or refuges must sign a declaration to the Immigration and Nationality Department to register as organisations which will only support genuine applications. 

·        Where a spouse or unmarried partner becomes bereaved during their probationary period, the immigration rules now allow for an immediate grant of indefinite leave to be made, provided the couple had intended to live together permanently and the relationship was subsisting at the time of death. 

·        In practise, many women do not know what stage their case has reached or whether her husband or the Home Office has her passport. It is important to find out all the facts at this stage before contacting the Police, Home Office, Dept. of Work and Pensions, Housing Department, or her husband. An injunction can cover the return of belongings, including a passport. 

·        Even where the two years leave is due to expire, with a couple still together, the settled spouse or unmarried partner does not have to support an application to the Home Office, and may use this fact as another means of controlling or threatening his spouse or partner. 

·        Sometimes the reverse situation occurs where it is the man who will face deportation if she leaves and this too can place additional pressure on the women not to leave. 

·        Immigration status and the right to use the NHS are not directly related. Anyone who is ordinarily resident in the UK, or is allowed to stay permanently, or intends to stay permanently, is exempt from charges for GP or clinic services. The problem for recent immigrant may be more one of getting accepted onto overloaded GP lists. Separate rules cover hospital treatment: most commonly, people who intend to remain for no more than six months are liable to be charged, except for emergency treatment. 

·        Immigration status does not affect state schooling for children under 16, if they are with a parent, relative, or accommodated by or in care of a local authority in the UK. 

·        Local authorities are required to check applicants entitlement to services by, for example, asking people to produce their passports. This applies particularly to Housing Benefit claims, and any applications for housing (homelessness or waiting list). 

·        Women who have entered the UK as Persons from Abroad subject to a prohibition on claiming public funds should be advised that claiming certain benefits and services may put them in breach of their conditions of stay – always check with a specialist advice agency first.

Public funds

Most people who are in the UK with a “limitation” (or condition) on their right to stay are not entitled to certain benefits and services. A person who is subject to a ‘no recourse to public funds’ restriction, or who is an illegal entrant, who has overstayed, or who is subject to deportation or removal, will be caught by this rule. 

Public funds or benefits being subject to an immigration test means that such individuals are not entitled to: 

·        Income based Job Seekers Allowance (JSA)

·        Income support

·        Housing Benefit

·        Council Tax Benefit

·        Pension Credit

·        Child Benefit (since October 1996)

·        Attendance Allowance

·        Disability Living Allowance

·        Carers Allowance

·        Severe Disablement Allowance

·        Non-contributory incapacity benefit

·        Child Tax Credit

·        Working Tax Credit

·        Social Funds Payments

·        Local Authority Housing under homelessness provisions

N.B.

Refugees, people with Exceptional Leave to Remain (ELR), Humanitarian Protection, Discretionary Leave, European Economic Area (EEA) and Swiss Nationals and their families, Commonwealth citizens with the right of abode, and most people with Indefinite Leave to remain are still entitled to these benefits. However, some people who have indefinite leave to Enter or remain, such as elderly dependants, may still be restricted from claiming the first five benefits listed above, by a formal written maintenance/sponsorship undertaking – N.B. this undertaking ends if the sponsor dies, and regulations also allow a benefit claim to be made after 5 years (after entry or undertaking, whichever is later). A person should not be denied benefit solely due to being subject to informal sponsorship arrangements, though they may be subject to a ‘no recourse to public funds’ restriction.

Where one of a couple or family is not a Person Subject to Immigration Control. A claim for any benefit (apart from housing benefit and council tax benefit – get advice for these) can be made by that person e.g. Child Benefit for a child who is not “settled”, Working Tax Credit or Child Tax Credit; or income support at the single person rate, without this impacting on the immigration position.

Not currently “Public Funds”

·        Payments under the Children Act 1989 e.g. Section 17 payments where there is a dependant child who is in need.

·        National Assistance Act 1948 help where there is destitution coupled with mental or physical disability.

·        Community Legal Services Public Funding

·        Education grants

·        Contributory benefits

·        NHS treatment (some hospital treatments may incur a charge e.g. ante natal, birth)

If a woman in ineligible for benefits, she may be able to be assisted by funds from charities – e.g. Women’s Aid Federation may have a small fund available. 

Reviews

A few people who claimed certain benefits before 5-2-1996 (or 7-10-1996 for Child Benefit) will continue to be entitled to benefits until their benefit claim is reviewed for some reason. It is therefore important to consider the implication of applying for any change in benefits, e.g. if disability has worsened, as this would oblige the DWP to review benefit.

IMMIGRATION AND BENEFITS

Some people abroad are eligible for benefits: 

·        European Economic Area Nationals (that is, the European Union countries and Iceland, Liechtenstein and Norway), and people from countries that the UK has certain agreements with (e.g. Romania, Switzerland & Turkey) are likely to be eligible if they are “habitually resident” here.

·        Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia joined the European Union in May 2004. People from Malta and Cyprus have full EU rights; once people from the other eight countries are in registered employment they have a “right to reside” and can claim “in work” benefits such as tax credits and Housing Benefit. If they have been in registered work for a year or more they can also claim out of work benefits e.g. Income Support if they become unemployed.

·        Asylum seekers who claimed asylum at the port of entry before 3-4-2000 and have not had a negative decision on their claim. 

Social security and tax credits law categorises certain people as a “person subject to immigration control (PSIC)”. A PSIC is someone who is not an EEA (European Economic Area – i.e. the 25 European Union countries plus Iceland, Liechtenstein and Norway) national and:

·        Requires leave to enter or remain but does not have it (this would include illegal entrants, overstayers and those subject to a deportation order or requirement to leave)

·        Has leave to enter or remain with a public funds restriction (this would include visitors, students, work permit holders and those coming to the UK to Marry or to join a spouse, fiancé or partner)

·        Has leave to enter or remain and is subject of a formal written maintenance undertaking by someone to sponsor them.

·        Is appealing a decision about their immigration status  

This information is usually found in passports or other official documents provided by the UK Home Office or Immigration Service, but may be verified by the person’s legal representative. Women who cannot claim benefits may be able to get help and/or housing via the Social Services Department of the Council – contact the Asylum Team, who also deal with some other people subject to immigration control.

N.B. The rules on eligibility are extremely complicated and full advice should be obtained before a woman decided whether or not to make an application

THE HABITUAL RESIDENCE TEST AND BENEFITS

Income Support, Income-based JSA, Housing Benefit and Council Tax Benefit require claimants to show that they are “habitually resident” in the UK. British citizens and those with right of residence in the UK, who have not been continuously resident in the UK or Eire, will however be accepted as “habitually resident” in this country immediately they return, meaning that they should have no problem claiming the above benefits. People granted Indefinite Leave as a refugee, or Exceptional Leave to Remain/Enter are exempt from the habitual residence test. 

Women not in this situation will have to attend an interview at the Department of Work and Pensions and Housing Benefit Office to determine “habitual residence”. Case law suggests that a claimant would need to have at least one months residence in the UK, however women should still make a claim if they have been here for less time. 

On 1 May 2004 the habitual residence test was changed to include a further test of having the “right to reside” – this is extremely complex and depends on immigration status, nationality, and, in some cases, provisions of European Law.

Women who have failed the Habitual Residence Test, may be able to get help from the local Social Services Department under the Children Act 1989 or National Assistance Act 1948. Women can get health benefits and free treatment under the National Health Service.

Women who fail the Habitual Residence Test should seek further advice to appeal against the decision. They should also make a new claim for benefits.

ASYLUM SEEKERS AND BENEFITS

Asylum seekers are a particular group of individuals subject to immigration control. Their situation will vary depending on where and when they applied for asylum, and what decision if any has been made of their application. This is a very complex area of law, which has frequently changed, and it is important for an individual to know their current status, and to obtain specialist legal advice.

Few asylum seekers remain entitled to benefits and other assistance – most decisions on application under previous rules have now been made and so the individuals are no longer “asylum seekers”; and most of the countries with which the UK had signed agreements are no members of the EEA (European Economic Area)

New asylum seekers may only claim support and accommodation from the National Asylum Support Scheme (NASS) if they claimed asylum ‘as soon as is reasonably practicable.’ NASS is an executive agency under the Home Office and provides financial support and accommodation to asylum seekers. Accommodation is usually outside London and the South East, unless there are special reason why they need to live in this area. Accommodation may be provided through a dispersal scheme that aims to move asylum seekers to areas outside London and the South East. There are exceptions for some groups and the expert advice should be obtained if there is any doubt. 

Anyone who has been granted refugee status, exceptional or indefinite leave to remain, humanitarian protection or discretionary leave are entitled to get benefits and housing under the usual rules. Note that from August 2005 refugee status means the person will be made a grant of 5 years leave to remain in the UK, after which they can apply for indefinite leave.

DOMESTIC VIOLENCE AND ASYLUM SEEKERS

The situation of a woman accompanying her husband as an asylum seeker, who subsequently leaves him because of domestic violence, is very difficult.

At present, if she has been included in his application as a dependant i.e. he is treated as the principal asylum seeker, leaving him means that she has no status at all. A woman finding herself in this situation is strongly recommended to get specialist legal advice as soon as possible, and not from her husband’s legal advisors, as there could be a conflict of interest. There may be separate grounds for her to claim asylum, even in some cases (since the House of Lords Judgement in Shah and Islam) related to the domestic violence itself.

FORCED MARRIAGE

A forced marriage is one where people are coerced into a marriage against their will and under physical or emotional duress; it is an abuse of human rights and is very different from an arranged marriage where there is consent from both parties. Often a Forced Marriage will involve migration to or from the UK and some of the Government measures to tackle it involve immigration control (such as the minimum age for marriage entry clearance).

In 2005 the Government launched a joint Home Office and Foreign Office Forced Marriage Unit to provide confidential advice and assistance both to potential victims and concerned professionals. It as produced guidance for Police, Social Services and Education and all consular staff receive training on forced marriage before going overseas. Approximately 85% of cases dealt with involve female victims and 15% male victims.

Many thanks to Greenwich Council for providing the Immigration information.