Blog post written by Ralitsa Peykova

Freedom of movement for EEA nationals is one of the founding principles of the European Union. This includes the right to live and work in a Member State, to be joined by your family and the right to equal treatment with nationals of that Member State. These rights also form the focus of European Union Directive 2004/38 (the Directive), which sets out the categories under which EEA nationals will be deemed to be exercising their treaty rights. Exercise of treaty rights in the UK enables EEA nationals and their family members to establish a right to reside in the UK for the purposes of accessing social assistance (provided other conditions relating to specific benefits are also met). The Directive also contains provisions for vulnerable EEA nationals and family members, including those temporarily unable to work, suffering from temporary or permanent illness or injury, and non-EEA national family members who are victims of domestic violence.

Victims of domestic violence who are married to or in a civil partnership with EEA nationals will continue to derive residence rights, which will entitle them to any benefits they need to escape the situation of violence into safe accommodation, for as long as their EEA national spouse continues to live and work in the UK. Under European law, a marriage continues to exist until there has been a final decree of divorce (Aissatou Diatta v Land Berlin, C-267/83). Difficulties arise when the EEA national spouse stops exercising treaty rights or leaves the UK as this correspondingly affects the residence rights of their family members, which also cease. Residence rights derived from an EEA national spouse will also end if the couple divorce.

If the victim of domestic abuse is a non-EEA national, they may be able to rely on Article 13(2) of the Directive to retain independent rights of residence, if the marriage or registered civil partnership breaks down and domestic violence occurred whilst it was subsisting, as long as they can show they continued to have residence rights in the UK as the family member of an EEA national exercising treaty rights here prior to the initiation of the divorce (Directive 2004/38/EC Of The European Parliament And Of The Council, Article 13(2)). They would also need to show, however, that they were working or otherwise ‘exercising treaty rights’ in the UK as though they themselves were EEA nationals. Victims of domestic violence who are EEA nationals do not have the benefit of any specific domestic violence provisions and they are simply left to rely on their own exercise of treaty rights in order to continue to reside “legally” in the UK. The requirement for victims to begin working or take up self-employment is often exceptionally difficult to meet for a vulnerable person, whose employment prospects are impacted by the trauma domestic violence, fleeing home and usually the need to provide childcare (see here).

Whilst both EEA national and non-EEA national victims of domestic abuse are able to continue to rely on their residence rights through the marital relationship, and to acquire the assistance they need to recover from the abuse, when their spouse is an EEA national, the situation of victims who are married to British nationals varies considerably. This article looks specifically at the situation of an EEA national who is married to a British national and the particular difficulties faced by this group when compared to a non-EEA national spouse of a British national. An EEA national residing in the UK as the family member of a British national, and who is being supported by her spouse, is likely to face unreasonable hurdles in deriving rights from their abusive spouse for the purpose of accessing benefits.

Suzanne is an EEA national who contacted the AIRE Centre seeking advice. Suzanne first came to the UK in 2005. She married a British national and they had three children together. Since Suzanne was preoccupied with childcare, she never worked and was therefore dependent on her husband for financial support. 12 years later, Suzanne suffered domestic violence at the hands of her husband and had to flee her house with her children. Her main concern was whether she would be able to retain her residence rights for the purposes of accessing the benefits necessary to enable her to recover from the abuse and find a way to support herself and her children.

If Suzanne had been married to an EEA national exercising treaty rights in the UK her right to reside following separation due to domestic violence would have been far clearer. It would not have mattered whether or not her spouse was providing her with any financial support. Under the Immigration (EEA) Regulations 2016, which govern the free movement rights of EEA nationals in the UK, British nationals are expressly excluded from the definition of ‘EEA nationals’ under the Immigration (European Economic Area) Regulations 2016 and therefore if the couple separate but remain married, the EEA national spouse is unable to rely on the continuing marriage and economically active status of her British spouse to demonstrate she continues to have a right to reside.

EEA nationals such as Suzanne very often suffer from post-traumatic stress and anxiety after leaving an abusive relationship. The worry and uncertainty over their financial situation and ability to survive contributes to the effects of the trauma they have already suffered. Most of the time, they are not only fraught with childcare while being hosted in small room in a Refuge which they share with their children, but are also required to still be exercising their treaty rights in order to access basic financial benefits including the housing benefit needed to pay for the room at the refuge (more here).

One way of demonstrating the exercise of treaty rights is through becoming permanently resident in the UK, a status that is automatically acquired after five years of continuous and legal residence. Usually, the only way for someone in Suzanne’s situation, an EEA national who has always been financially supported by her spouse and has not entered into any employment in the UK, to show they have acquired permanent residence, is by demonstrating they have been self-sufficient for five years. While that may suffice in terms of having sufficient means so as to not to place an “unreasonable burden on the national social assistance system” (see Directive 2004/38/EC, Article 7(1)(b)), there is an additional requirement to have comprehensive sickness insurance cover, which often people are simply unaware of or do not have the means to afford.

If Suzanne had been from a country outside of the EEA, married to her British national husband and residing in the UK as his spouse under national immigration law, she would have been entitled to far greater protection as a victim of domestic violence. The spouse of a British national, or someone settled in the UK, who is given leave to remain (a visa) in that category, usually for a period of two years, can in the event of breakdown of the marriage due to domestic violence apply for indefinite leave to remain (ILR) under the Domestic Violence Rule (of the Immigration Rules). Women making such applications under the domestic violence rule have to pay a fee of £820. However, those who do not have sufficient funds to support themselves and can prove that they are destitute can get accommodation and access to welfare benefits whilst they make the application, through the Home Office Destitution Domestic Violence Concession (DDVC).

Applications made under the DDVC have to be substantiated by providing evidence of not having access to sufficient funds to pay the application fee and proof that the victim is totally and necessarily reliant on a third party for the provision of essential living costs, such as basic accommodation and food. Financial and other assistance under the DDVC is is provided for three months. Victims must then, within this time, make their application for indefinite leave to remain (settled status in the UK) under the specific Domestic Violence Rule of the Immigration Rules. If ILR is granted, the victim will have permanent rights of residence / settlement in the UK and can continue to access all necessary benefits until they are able to find work.

Outwardly, there appears to be relatively adequate protection (at least on paper) for third-country national spouses of British nationals. While the Destitute Domestic Violence Concession is a huge victory for domestic violence victims with immigration status that is dependent on their abusive spouse, EEA nationals who are married to British nationals are in practice unable to rely on this concession unless they have previously applied for and been given leave to remain as a spouse under national immigration law. This is almost never the case with EEA nationals, who already have rights of entry and residence without the need to acquire a visa under national law.

Impact
Undeniably, falling victim of domestic violence affects one undeservedly, regardless of whether they are an EEA national or a third-country national family member of either an EEA or a British national. The only possible rationale behind such discrepancies for EEA nationals who have been victims of domestic violence, as opposed to third country national spouses is that the former will still have the right to remain/reside if they simply “start exercising their own treaty rights”, however this is often an impossible requirement for EEA national victims to meet particularly when they have preschool aged children to care for. You can read more about the difficulties faced by EEA national women who have been victims of domestic violence here.

Despite being in the UK for over 12 years and being an EEA national, Suzanne is now expected to start exercising her treaty rights through taking up work whilst also contending with the demands of childcare and the trauma of the domestic violence she has suffered. Only then will she be able to establish a right of residence which will entitle her to access basic social assistance including housing benefit to pay for her safe accommodation. UK authorities should recognise the common difficulties faced by victims of domestic violence and the need for a period during which the victim can recover and find their feet. This can only be achieved through providing the same legal protection to victims who are forced to flee from the family home, regardless of their marital status and the nationality of their spouse.

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While The AIRE Centre mostly deals with the provision of legal advice for domestic and gender-based violence victims, it is also a partner in a European project – Project FIRST: Capacity Building for First Points of Contact for Victims of Domestic and Gender-based Violence aiming to establish a national network of organisations that may find themselves in a position as a first point of contact for victims of domestic violence.

If you feel like taking action against domestic and gender based violence or want to know more about Project FIRST, please visit our website http://www.firstaction.eu

Thanks to the valuable contribution of Saadiya Chaudary.

This blog first Appeared on the Justice Gap here.