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Advising people fleeing domestic violence

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This page looks at common housing problems faced by people with limited leave to remain who are fleeing domestic violence. References to case law and relevant legislation and regulations are included.

What are the housing and housing benefit rights of people fleeing domestic violence?

The page on people fleeing domestic violence deals specifically with those who have arrived to join a UK national or settled (with indefinite leave to remain) husband, cohabitee or civil partner, and can no longer stay in the relationship because of violence. Where this applies rule 289A of the Immigration Rules (‘the domestic violence rule’) allows that person to apply to get indefinite leave to remain under certain conditions.

Until recently, those applying for indefinite leave under the domestic violence rule were not eligible for a housing allocation, homelessness services or benefits until they got the leave. However, on 1st April 2012 the UK Government introduced a new policy that replaces the Sojourner project (previously funded by the Home Office until March 2012).

The new policy applies only to people on a ‘spousal’ visa (two years limited leave to remain with no recourse to public funds granted to the husband, wife, civil partner or cohabitee of a British citizen or person with indefinite leave to remain). It applies where:

  • the applicant’s relationship has broken down due to domestic violence
  • they cannot accommodate or support themselves and
  • they intend to make an application to stay permanently in the UK under the domestic violence rule.

The new policy allows the applicant to apply to the UKBA for a three-month grant of leave outside the immigration rules to enable them to make an application for ILR under the domestic violence rule.  It carries no conditions as to recourse to public funds and so enables the holder to apply for housing benefit and related passported benefits.   This is made explicit in the guidance issued by the UKBA. For housing and homelessness services:

  • leave granted under this policy falls within the definition of Class B (simply on the basis that the applicant has spousal leave)
  • If the application for indefinite leave is successful the applicant then qualifies as a person who falls within Class C (indefinite leave to remain).

Other people fleeing domestic violence have different rights and options. Some of these are covered below.

Anyone fleeing violence can get housing association accommodation, but may face problems if they cannot pay the rent because they are not eligible for benefits.

Provision for women fleeing violence

The women's aid network has been advising, housing and supporting women fleeing domestic violence since 1974. Their website offers a directory of organisations that can help women fleeing violence and they also help run the Domestic Violence 24 hour Helpline - 0808 2000 247.

Southall Black Sisters have been campaigning for the rights of black women since 1979 and run a helpline for women fleeing violence open Mondays to Fridays 10:00 – 5:00 (except Wednesdays 12:30 - 1:30). Their services are open to all. They are also able to provide small amounts of financial support for women fleeing violence with no recourse to public funds.

EEA nationals

Husbands, wives and civil partners of EEA nationals retain their right to reside as family members while the legal relationship continues and also may retain it when it ends. There are special rules that enable this for those fleeing violence: find more about them in the section on EEA family members.

Cohabitees of EEA nationals may face more difficulties because once the relationship has ended they can no longer rely on it to give them rights. They may, however, have other EEA rights:

  • a permanent right to reside if they or their ex-partner have lived in the UK for five years or more
  • a right to reside as the parent caring for the child of an EEA worker because the child has a right to reside to complete his/her education.

See other EEA nationals for more on this.

In November 2012 an immigration tribunal ruled that the ex-cohabitee of an EEA national who had ended the relationship due to her partner’s violence is entitled to the same treatment as other non-EEA nationals and to be considered for leave in line with the immigration rules on domestic violence.  Contact the AIRE centre if you have similar cases.

Refugees, etc

Husbands, wives, civil partners and cohabitees of refugees and people with humanitarian protection or discretionary or exceptional leave to remain usually get the same leave as their partner, and so are eligible for a housing allocation, homelessness services and housing benefit. When it is time to get the leave renewed, it is important to get expert legal advice, however, because the ex-partner or spouse may need to make an application for a further stay based on his/her own fear of persecution, etc. or on human rights grounds.

There are specific procedures to help asylum seekers who need to flee domestic abuse within UKBA asylum support accommodation. See the section on what other organisations can help for refugee agencies who can advise on this.

People from Macedonia and Turkey

A person from one of these countries with any form of leave, including limited leave with a no public funds condition, is eligible for housing benefit (and related passported benefits) provided that they are also habitually resident. Temporary admission is not sufficient because it does not amount to a right to reside: R(IS) 8/07 and R(H) 7/09. The right to benefits arises because these countries have signed and ratified the Council of Europe Social Charter or the European Convention on Social and Medical Assistance.

In Wales (but not in England) applicants from these countries are also eligible for an allocation of housing and homelessness assistance.  This is because the Welsh eligibility regulations include these people as eligible in the rules covering people subject to immigration control.

All other people with limited leave to remain

Partners of people with limited leave to remain are expected to leave the UK if the relationship ends. If homeless and destitute they may be able to get short-term accommodation and support from social services if children or vulnerable adults are involved, and this may include assistance with returning home. If they cannot 'go home' they should get expert legal advice about options to apply to stay in the UK (on human rights grounds or through the asylum system, for example).

Domestic violence and the parents of British children

The parent/s of a UK child citizen who do not possess any right to live or work in the UK of their own must be granted a right to reside if it is the only way to guarantee the right of the child to live in the UK. This right is known as a Zambrano right after the case that established it.

Parents with a Zambrano right can approach the UKBA and ask for confirmation of the right to live in the UK, which will be granted (a right to reside under regulation 15A(4A) of the EEA regulations), but this is not issued to parents where another carer may be available for the child (e.g. the other parent). Domestic violence may, of course, affect the likelihood of this, and parents in this situation should get expert legal advice especially as this is a new area of law and still in development.   

Parents with a Zambrano right are not entitled to means-tested benefits (housing benefit, income support, etc). The right to claim benefits ended on 8 November 2012 at the same time as the Zambrano right was included in the EEA regulations.

In England, parents with a Zambrano right are not entitled to a housing allocation or homelessness assistance unless they made their application before 8 November 2012 (in which case their application remains valid).

In Wales, parents with a Zambrano right are eligible for housing and homelessness assistance.

Accommodation and support in other cases with children

People who cannot apply for indefinite leave under the domestic violence rule (or rely on other options such as EEA rules or refugee status) have to rely on social services (see people with social care needs for more on this) or voluntary sector provision if they become homeless or have no income.

A person looking after children can apply to the local authority social services department. They have powers to fund accommodation and support under the Children Act 1989. If there are difficulties with such an application it is best to get specialist advice from a solicitor who is expert in community care, or from a women's aid organisation or advice centre.

In general, such applications may result at best in an offer to fund the return home, unless the applicant has a strong reason to remain in the UK.  If that is the case, it is best to get good immigration advice first, since an application to stay in the UK may then either create some option for accommodation and support as an asylum seeker or be the reason why social services should accommodate while the application to stay is pending.  

Getting help from social services for a vulnerable adult

A person who needs active support and involvement because they are traumatised by the violence may be able to get help under community care provisions. The National Assistance Act 1948 s21 (1) (a), imposes a duty on local authorities to provide accommodation and support for those who need 'care and attention' because of age, illness, disability or other circumstances. In a key judgment the House of Lords found:

'..."care and attention"' in this context is "looking after". Looking after means doing something for the person being cared for which he cannot or should not be expected to do for himself: it might be household tasks which an old person can no longer perform or can only perform with great difficulty; it might be protection from risks which a mentally disabled person cannot perceive; it might be personal care, such as feeding, washing or toileting.'

So if the person is unable to look after him/herself, or perform the basic tasks involved in care, even temporarily, because of the violence, s/he clearly falls within the definition of needing care and attention. More recent case law has extended the definition to adults who may need the help of a social worker to provide the programme of assistance and support they need.  This is an area in which new law is often developed, however, so it is best to get expert legal advice if social services refuse the application or difficulties are anticipated.

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