case law -

Limitations on domestic violence protections in the Immigration Rules justified, Court of Appeal holds

In the recently published case of R (SWP) v Secretary of State for the Home Department [2023] EWCA Civ 439, the Court of Appeal has looked at the domestic violence concessions in the Immigration Rules.

What are the domestic violence concessions?
These were originally introduced in 1999 following a seven year campaign by Southall Black Sisters. Those who enter the UK as spouses of permanent residents or British citizens have “no recourse to public funds” and must be self-sufficient. They are granted five years leave to remain (two prior to 2012) after which they may apply for indefinite leave in their own right. The problem with this is that if a woman enters the UK only to find that her husband is an abuser, she faces an impossible choice: remain in the marriage for the requisite five years, or leave and face destitution and loss of immigration status. The 1999 concession allowed a victim of domestic abuse in these circumstances to apply for indefinite leave before the end of the spouse visa. The concession was replaced in 2002 with paragraph 289 of the Immigration Rules, and that in turn was replaced again in 2012 by the “DVILR” section of Appendix FM to the Immigration Rules.

What this did not solve was the issue of destitution, particularly during the period where an applicant was preparing the application and while it was being considered, which could take some months. In 2012 the “Destitute Domestic Violence Concession” (DDVC”) was introduced whereby a victim of domestic abuse could apply for a three month bridging visa which would allow her access to public funds and the right to work while she prepared her application and applied for indefinite leave under DVILR.

The current domestic violence rule can be found here and the crux of it is that

The applicant must provide evidence that during the last period of limited leave as a partner of a British Citizen, a person present and settled in the UK, a person with refugee leave, or a person in the UK with limited leave under Appendix EU in accordance with paragraph GEN.1.3.(d), under paragraph D-ECP.1.1., DLTRP.1.1 or D-LTRP.1.2 of this Appendix, or during their only period of permission under Appendix Family Reunion (Protection), the applicant’s relationship with their partner broke down permanently as a result of domestic abuse.

What’s the issue?
The eagle eyed reader will have spotted that the rule is no longer restricted to partners of British citizens and those who are settled. The rule is now also available to partners of refugees and to partners of people in the UK with what is known as “pre settled status” – European nationals who did not gain fully settled status.

The reason for extending it to partners of refugees is obvious. Partners of those with pre settled status are included because the Withdrawal Agreement required the UK to treat EU nationals applying under the scheme no differently to British nationals.

However, partners of people on other visas are not included. This is not a new problem; the joint report from Southall Black Sisters and Eaves recommended in their 2013 review of the DVILR scheme one year on that it should be extended to those on other visas, commenting that “it is still a concern that this concession applies only to very specific group and relatively small group of women. All women in the UK, irrespective of their immigration status, should be entitled to equal access to safety and justice and to be able to access life-saving support and advocacy.”

Why now?
The Home Office line has always been – and continues to be – that the scheme is only available to those with a “legitimate expectation” of settling here. In written evidence before the Court of Appeal, the Home Office set it out in this way:

“The rationale for the terms of the DV Rule concession was (and is) that individuals who come to the UK as the spouse or dependant of a partner who is present and settled in the UK will have come to the UK in the knowledge that their UK based partner already has a right to live permanently in the UK. It is reasonable for them to expect to have their future and their permanent home with their partner in the UK, so from the outset they may well loosen or cut their ties with their country of origin. The domestic violence provisions concession means that someone who has come to the UK on this basis and who is the victim of domestic violence should not feel compelled to remain in the abusive relationship for the sake only of qualifying for indefinite leave. They should also not feel compelled to leave the UK when the reason for being here (to live here permanently with their British or settled partner) falls away through no fault of their own.”

…

“The rationale for the present policy is, as stated above, that those who have come to the UK as the spouse or partner of a person present and settled in the UK (or with refugee status or pre-settled status) have come to the UK in the reasonable expectation of being able to live permanently. They would have an expectation of permanent settlement but for the breakdown in the relationship as a consequence of domestic abuse. But those who have come as the partner of a person on a temporary work or study visa have no such legitimate expectation.”

However, the post-Brexit inclusion of EU nationals with pre-settled status, which is not permanent, meant that there was now a comparator. This was important, because it meant that the Appellant was now able to argue that she was being treated in a discriminatory way regarding her private and family life, contrary to Articles 14 and 8 of the Human Rights Act. To succeed in an Article 14 discrimination argument, a person must show that they are being treated differently by comparison to persons in an analogous or very similar situation.

What was the case?
SWP was an Indian national who moved to the UK with her husband when his company moved him to the UK to work. There was some confusion over exactly what type of visa it was, but the case proceeded on the basis that it was a Tier 2 (General) visa. People who come to the UK on a Tier 2 (General) visa do not have an expectation of settlement necessarily, but if they live in the UK with this type of visa for long enough they will be permitted to settle.

Her husband was violent and abusive to her both in India and the UK. She finally managed to leave the relationship after he sexually assaulted her and tried to suffocate her. She fled with their son to a domestic violence refuge. With her visa about to expire, she tried to find a sponsor of her own to acquire a visa independent of her husband, but as her own profession of primary teacher is no longer on the shortage list, she was unable to find a sponsor. She therefore made an application for the DDVC.

This was refused because she was not the partner of a person who was settled or British, but the partner of a person with a Tier 2 visa, and she was therefore not eligible. She applied for judicial review of the decision, which was rejected, and appealed to the Court of Appeal.

What did the court decide?
The Home Office did not agree that the decision was discriminatory under Article 14 although they did agree that it was linked to Article 8 (private and family life). Article 14 can only be relied upon in relation to one of the other Articles; it is not a standalone right.

The first court had already ruled that there was a sufficiently close analogy between the partner of a Tier 2 migrant and the partner of a person with pre-settled status.

The crucial issue was therefore whether or not the difference in treatment was justified.

The Court of Appeal decided that the difference in treatment was justified. The Home Office had a policy reason behind the differentiation and a “wide margin of discretion” is open to the government in choosing its policies on general measures of social strategy. Brexit was a “unique phenomenon” and provided “an objective and reasonable justification for the difference in treatment which now arises under the EUSS.”

The appeal was therefore dismissed.

What next?
It is possible that SWP may appeal to the Supreme Court, although even if she won it would be a pyrrhic victory since the Home Office very belatedly realised that her husband was not a Tier 2 (General) migrant on a route which might lead to settlement, but in fact was a Tier 2 (ICT) migrant on a route which very definitely does not. Understandably, she had not had access to his documents and did not know this herself.

As things stand, there is therefore no DVILR route for those who are victims of domestic abuse but whose abusers are not settled.

The Home Office approach is unfortunate, because it leaves migrant women very vulnerable to domestic abuse. While some will be able simply to leave their abuser and go back to their home country, this is not always possible for women who are from countries where divorce is a social taboo, or where there are children involved. Bleakly illustrative of this is SWP’s evidence that she could feel compelled to return to her abusive husband if her appeal failed, as she would not be able to afford to educate him in India by herself. There will be many women in similar situations weighing the merits of remaining with an abuser if they cannot remain in the UK if they leave him. Sadly, it seems this is not a situation the Home Office is willing to change.

Bell v Tavistock and Portman

Can children and young people give informed consent to being prescribed puberty blockers after a diagnosis of gender dysphoria? If so, what information do they need to give properly informed consent?

Introduction

Can children and young people give informed consent to being prescribed puberty blockers after a diagnosis of gender dysphoria? If so, what information do they need to give properly informed consent?

These were the important questions considered in Bell and Ors v Tavistock and Portman, with an interested party (NHS England) and interveners (UCH Trust, Leeds Teaching Hospitals Trust and Transgender Trend). It was heard, unusually for a judicial review, by three Judges including the President of the Queen’s Bench Division and a Lord Justice of Appeal.

The Claimants were a young adult who was prescribed puberty blockers by GIDS, and later cross-sex hormones, and a mother concerned about her daughter potentially being prescribed such drugs.The Defendant is the main clinic for the treatment of gender dysphoria in under 18s, known as “GIDS”. The NHS trusts who intervened are the hospitals which oversee the actual hormonal treatments, when patients are referred to them by GIDS.

What the Court was Not Deciding

This case has nothing to do with abortion in general, abortion for under 16s, or contraception. It has little to do with other forms of informed consent to medical treatment by under 18s, because of the very specific nature of gender dysphoria and its treatment. Gender dysphoria is a condition without physical manifestations, but treatment with puberty blockers causes physical changes that can be life-long and life-changing.

The court was not deciding whether puberty blockers for under 18s were a Good Thing or a Bad Thing. It was deciding whether GIDS’ own policy was lawful in light of the information and data available to GIDS.

Factual Findings Made and Facts Considered

The court considered witness evidence from many different people, including medical experts from GIDS, trans people under 18, and trans people over 18 who had previously been treated at GIDS.

In terms of GIDS’ own data and records, the court was clearly concerned that little systematic data was being recorded, considered and taken into account. For example, from 2011 to 2019, GIDS had no details of the ages of children and young people prescribed puberty blockers. It did not record co-existing conditions such as autism. It did not have data about the numbers of patients treated with puberty blockers who then went on to be prescribed cross-sex hormones or undergo surgery for dysphoria.

Surprising the High Court is not, in this context, a positive thing.

The court said more than once it was “surprised” that the Defendant did not collect this information. Surprising the High Court is not, in this context, a positive thing.

The court considered that the Defendant’s data and research did not distinguish between puberty blockers prescribed to younger children who were undergoing premature puberty, and puberty blockers prescribed for gender dysphoria to children and young people going through puberty at a normal age. The premature puberty use was the source of almost all the data in relation to puberty blockers.

On the Defendant’s own evidence, there was a paucity of data about the effects, benefits and disadvantages of treating gender dysphoria by puberty blockers. The UCL study which started in 2011 has still not published full peer-reviewed results. The court asked for such results, but did not receive them.There are not, apparently, any other comprehensive studies into such treatment. The interim paper produced by Dr. Carmichael, head of GIDS, “noted that there was no overall improvement in mood or psychological wellbeing using standardized psychological measures.”

For all these reasons, the court considered that the prescription of puberty blockers to those of a standard age for puberty as treatment for gender dysphoria was experimental.

The court also considered that the evidence, while not complete, indicated that a very large percentage of children and young people prescribed puberty blockers went on to take cross-sex hormones later. So a child’s consent to take puberty blockers could not be informed consent without an understanding of the overwhelming likelihood that it would lead to taking cross-sex hormones afterwards, and an understanding of the consequences of that decision.

The court considered, on the basis of the Defendant’s own evidence, that taking puberty blockers could not be said to be entirely reversible or without consequences. There was insufficient evidence about the consequences of long-term suppression of puberty, but there were possible risks for physical development (bone density, growth, height) and the psychological development which occurs during puberty. Data from children prescribed puberty blockers to prevent premature puberty did not assist in analysing this, because those children went through puberty at roughly the same time as their peers.

So a child or young person giving informed consent to taking puberty blockers had to understand and weigh the information about the likelihood of loss of fertility, loss of sexual function and enjoyment, and associated consequences as well as the risks to physical and psychological development.

Lastly, the court found there was a lack of clarity and consistency about the aim of treatment with puberty blockers, and how success could be assessed. There were references to a “pause”, or a time in which a child could think further and explore sex and gender identity. There were references to preventing distress and gender dysphoria caused by going through puberty in the child’s birth sex. There were also suggestions that it would be easier for a child or young person to transition through surgery after adulthood if puberty had not occurred.

If you don’t know what the aim of a treatment is, and don’t clearly have that aim in mind, it is hard to see how the success of a treatment can be assessed.

The Court’s Conclusions

The court decided that it was most unlikely that a child of 13 or under could understand, take in, and properly weigh the information about the effects and consequences of taking puberty blockers, including the likelihood of proceeding to cross-sex hormones. It was difficult to see how a child of that age could properly consider the issues of fertility, sexual function and pleasure, and life-long consequences.

The court’s conclusion was, therefore, that it was going to be very rare that a child was capable of giving informed consent to puberty blockers aged 13 or under.

The court concluded that 14 and 15 year olds were more mature, older, and it was possible that some under 16s would be capable of giving informed consent to treatment with blockers, but the court was “very doubtful” that many 14 and 15 year olds would be able to give such consent.

The legal position for 16 and 17 year olds in relation to medical treatment is different; there is a presumption of capacity. The court sounded a note of caution, however, stating that clinicians “may well consider that it is not appropriate to move to treatment, such as PBs or CSH, without the involvement of the court”: in other words, they may need to apply to the court to make a determination on a young person’s best interests. It is a warning to doctors prescribing such drugs that they must take great care.

GIDS and the Trusts were not criticised for the information they gave. The Court accepted that the written information to children, young people and parents tried hard to give full information that explained the potential consequences. The problem is not the information given but the ability of children and young people to understand and weigh it up.

Access to equity and access to justice: legal aid and domestic abuse

Congratulations to Public Law Project and their instructed counsel on an important and far-reaching win. This is a guest blog.

R(GR) v Director of Legal Aid Casework EWHC 3140 (Admin) is a new case relating to the availability of legal aid in cases of domestic abuse, where the victim has theoretical but not practical access to value in a property.

In 2013 the government made sweeping cuts to the availability of legal aid for most areas of civil law, including family law. However, it also made a commitment to retain legal aid for victims of domestic abuse, in order to avoid situations in which an unrepresented victim of abuse might have to face the perpetrator of abuse in the family court.

In order to qualify for legal aid for family proceedings, women who have experienced domestic abuse must meet strict financial eligibility criteria, assessed on the basis of both their income and capital. This has led to women being denied legal aid on the basis of an interest in capital, usually the family home, which is jointly owned with the perpetrator of abuse, and which in practice they are completely unable to access.

In this case, GR had experienced serious physical, sexual and financial abuse from her ex-partner. She had obtained a non-molestation order without legal representation. At that hearing, on seeing her ex-partner for the first time, she vomited in court. She then sought legal aid in order to be represented in family proceedings concerning their children and in relation to the sale and division of the equity in the family home. At the time of her legal aid application her only income was Universal Credit. She was living in the family home with her two children, but was unable to borrow against the capital without her ex-partner’s consent. She had attempted to take out loans, but had been refused credit on the basis of her extremely low income. She had already sold jewellery and furniture to pay for limited representation in relation to an initial hearing concerning the arrangements for their children.

GR’s application for legal aid was refused on the basis of an assessment that she had a 50% interest in the value of the family home (disputed by her ex-partner), which put her well above the £8,000 threshold set out in the Civil Legal Aid (Financial Eligibility and Payment for Services) Regulations 2013 (“the Means Regulations”). Regulation 31 of the Means Regulations provides that in relation to the valuation of capital resources:

In so far as any resource of a capital nature does not consist of money, its value must be taken to be—

(a) the amount which that resource would realise if sold; or

(b) the value assessed in such other manner as appears to the Director to be equitable.

However, regulation 37 of the Means Regulations makes specific provision for capital in the form of an interest in land, and does not make provision for the equitable assessment provided for by regulation 31:

In calculating the disposable capital of the individual, the value of any interest in land must be taken to be the amount for which that interest could be sold after deducting, subject to paragraphs (2) and (3), the amount of any debt secured by a mortgage or charge on the property.

The case turned on whether the Legal Aid Agency could assess the value of GR’s share in the family home as nil on an equitable basis under regulation 31, or whether it was required by regulation 37 to value her share as the amount for which it could theoretically be sold. It was accepted that she could not borrow against the property, and that if she agreed to her ex-partner’s application to force the sale of the home, she would have agreed to the very thing that she required legal advice about. It was also accepted that if GR were to be granted legal aid, the ‘statutory charge’ would apply, which would mean that if she obtained any benefit, such as an interest in the home, as result of the proceedings, she would be required to repay some of the costs to the Legal Aid Agency. Any legal aid she did receive would effectively be a loan.

The Court heard that the Catch-22 position GR found herself in was a common one. The family solicitor who had helped GR apply for legal aid explained: “Whilst difficult to quantify, it is the case at Beck Fitzgerald that, on average, we cannot assist 1-2 clients per week in securing legal aid as the equity in the property they live in is considered by the Legal Aid Agency as an asset which they can access. This is irrespective of whether the property is occupied by the client and their children, thus providing a home and irrespective of whether the property is jointly owned by the client and the perpetrator of abuse. These clients are unable to take out loans, are on a low income and often, the question of sale/occupation of the family home is the subject matter of the dispute.”

The organisation Rights of Women also provided evidence of the way in which the financial eligibility criteria enable perpetrators of abuse to continue to exercise control through the family courts, explaining that: “It is well recognised that abusers will use any means they can to continue to control the victim of their behaviour following the end of the relationship. Preventing them from accessing legal advice would be an easy way to do so.”

The Court found that the Legal Aid Agency was wrong to say that it had no discretion to make an equitable assessment of the value of a capital resource, and that by taking that approach, some people on low incomes would be prevented from having fair and effective access to justice. In order to prevent that from happening the discretion in regulation 31 could be applied to the valuation of any resource of a capital nature, save for the valuation of money.

This means that in any case where an applicant for legal aid has an interest in a capital resource, the Legal Aid Agency will now have to assess that interest on an equitable basis, taking into account the applicant’s ability to access that interest, and their ability to represent themselves effectively. In domestic abuse cases, where it is established that women are disadvantaged in legal proceedings if they are forced to represent themselves against the perpetrator of that abuse, it will increase access to justice, and ensure that more women are able to access legal representation.