Briefing and proposed amendments to reduce the devastating effect of the Nationality & Borders Bill on traumatised victims of rape and domestic violence

Contact: asylumfromrape@womenagainstrape.net 020 7482 2496, @AgainstRape

Introduction

  • Women Against Rape (WAR) has been supporting women seeking asylum from rape for the last thirty years. Since 2002, WAR has worked closely with the All African Women’s Group, a 100 strong group of women asylum seekers and refugees.  Most are survivors of rape and other life-threatening domestic violence.
  • Research confirms that over 70% of women seeking asylum in the UK have fled rape – so it is a key driver for why women flee here. But information provided by the government for asylum seekers does not explain that rape and domestic violence can be grounds for asylum.[1]  Most women we support did not understand they had grounds to make an asylum claim until meeting our groups.
  • It is also very well documented and accepted by the Home Office that rape is particularly difficult to speak about.[2] A December 2019 audit of the legal cases over the previous six months where WAR provided support, found that 94% of women had not reported rape before getting help from WAR.[3]  Victims need time and expert help to report their experiences as rape has a long-lasting impact.[4] Survivors (and their children) already face years of struggle and destitution -- often including exploitation and further violence -- before they win their cases. [5]

DELAY IN CLAIMING ASYLUM

Delete Clause 11: Differential treatment of refugees 

This clause divides people into “Group 1” and “Group 2” Refugees. Group 1 is only those who came “directly” to the UK, claimed asylum “as soon as reasonably practicable” and “show good cause” why they travelled “unlawfully”.  Group 2 includes everyone else including those who enter with a legal visa but do not claim asylum immediately.[6]

The Home Office accepts that this provision will discriminate against vulnerable groups.[7]  Of the 50 plus women we are working with currently only one would meet the Group 1 criterion because of delay in claiming asylum.

Even if they win immigration status in the UK, Group 2 refugees can only get temporary status with No Recourse to Public Funds or housing and no right to family reunion.

Mothers and children’s lives will be devastated by separation and increased destitution.  We already see mothers losing custody of their children because poverty is labelled neglect[8] and the Nationality and Borders Bill will make this worse.

Our recent survey Up from Destitution[9] found 48% of women asylum seekers had no income at all; 44% are mothers.  There are currently 1.4 million people in the UK with No Recourse to Public Funds.[10]  The Home Secretary will have powers to bring in more punitive measures against this group without further scrutiny.

Example:  Faith is from Nigeria.  She delayed claiming asylum in the UK and reporting the rape she suffered.  She said:

“I didn't know anything about asylum when I come to the UK because I was trafficked.  When I found the All African Women’s Group, they were talking about cases and I asked what is asylum?  They explained to me.  I had been in this country maybe six years.  I suffered rape and terrible violence.  I was homeless with my baby.  But it was only then that I put in for asylum and after two years I won.

I didn’t speak about rape for years.  I couldn’t speak out because of the trauma and because of the shame and the pain I've been through.  I thought, who will believe me so I kept it to myself.  When I came to the group, I met women like me suffering the same thing.  So I was able to speak out because I got confidence with myself and with them.

This Nationality bill will hurt many women like me.  Are you going to blame the woman that has passed through rape and other pains and come to this country?  Are you going to punish her for not knowing?  With this Bill women like me -- rape survivor, domestic violence survivor -- they will suffer more and with their children.”

DELAY IN REPORTING RAPE

Delete Clauses 17 – 27: Evidence Notices, Priority Removal Notice & Appeals

These clauses create deadlines to submit reasons and evidence in support of claims with serious consequences for delay: evidence being given less weight; claimants deemed to be acting “not in good faith”; “expedited” one tier appeals; accelerated appeals in detention; denial of the right to an in-country appeal and being sent instead to any unspecified third country.

The proviso: “unless there are good reasons why the evidence was provided late” (Clause 18 (4) (6A) increases the need for expert evidence, but the deadlines and limit on legal aid will preclude this. Victims are six times more likely to win with expert evidence – many more will now go without it.[11]

Rape survivors need time to provide all the detailed evidence for their claim.

There is a wide body of evidence that shows that rape is particularly difficult to speak about because of stigma, deep shame and fear of discrimination.[12]  Victims being forced to speak about what they have suffered before they are ready can result in partial recollection and re-traumatisation which can propel a woman into a downward spiral of terror, severe depression and suicidal thoughts.[13]  The provisions in the Bill counter court guidance to protect vulnerable witnesses.[14]

Example: WAR recently helped a victim prepare her statement about the rape and domestic violence she suffered in Kenya; this took 18 hours over multiple sessions. An expert psychiatric report was also needed, provided on legal aid, to assess her mental health and ongoing needs to recover.

Appeal rights must be retained including because so many Home Office decisions are proved wrong.

Currently the Home Office disbelieves most victims’ accounts of rape and other violence[15] in a decision making process that frequently contravenes its own guidelines.[16]  Over 50% of Home Office decisions are overturned on appeal showing how many bad decisions are made.[17]  A December 2019 audit of legal cases over the previous six months where WAR provided specialist support, found a 100% success rate at appeal – three-quarters of women won full refugee status and the remainder won under Article 8 of the Human Rights Act because of their need for ongoing support to recover.[18]

Lack of legal representation.

The Home Office does nothing to help people find legal representation. and it can take months to find a good lawyer to take on a new case.[19]

Example:  Ms Apio from Uganda recently reported to WAR that she had called 22 different lawyers over several weeks before finding one that would represent her.

Clause 24 grants Legal Aid without means or merits tests for those facing removal but for a maximum of seven hours: this must be amended to make the limit flexible.

IMPACT OF THESE CLAUSES

The barriers in this Bill to establishing credibility, obtaining evidence and reduced appeal rights will mean more women are unjustly disbelieved and deported.

Example:  Ms YF, a victim of rape and domestic abuse from Cameroon, did not know her experiences were grounds for asylum until she was detained for removal. She was put in the Detained Fast Track where her case was dismissed without expert evidence.  Unable to find a lawyer, she sought WAR’s help to apply to the Court of Appeal because the Tribunal had never applied its own Guidance for the treatment of Vulnerable Witnesses.[20]  Granted a re-hearing and released from detention, she could prepare her appeal with a new lawyer.  With extremely detailed expert and other evidence, and the benefit of the Guidance, she won refugee status.  Under this Bill, Ms YF may have been refused the right to claim asylum or been refused without the right to an in-country appeal and removed to a third country.  If allowed to pursue her claim in the UK, she would not have met the evidential deadlines, her credibility would be dismissed and she would have been subject to the expedited one-tier appeal which would prevent her appeal to the Court of Appeal and she would have been removed.  Even in the highly unlikely circumstance that she was able to find legal representation in time to challenge this, she could only have gone on to secure Group 2 status.

THIS BILL CONTRADICTS HOME OFFICE CLAIMS THAT RAPE AND OTHER VIOLENCE AGAINST WOMEN AND GIRLS IS A PRIORITY 

The Government’s “action plan for improving the Criminal Justice System’s response to rape in England and Wales” states: “Rape and sexual violence are horrific and devastating crimes that can impact victims for the rest of their lives. When victims take the brave step of reporting the crime, they expose and may relive their deep and personal trauma, in the interests of justice and protecting others.”[21]  The Minister of Justice announced that the six month time limit for victims of domestic violence to report to the police will be extended to two years in recognition of the difficulties that women face coming forward.[22]  There is no legal time limit on reporting rape in the UK.

How then can the Nationality and Borders bill be justified when it will, by deliberate design, penalise victims who delay reporting rape, deter many women from claiming asylum and make it impossible to challenge the Home Office’s sexist, racist decisions.  Women will be deprived of safety and protection, and made more vulnerable to exploitation and further violence. Many will be deported back to life threatening violence.

CALLS FOR THE BILL TO BE SCRAPPED

There is widespread opposition to this bill including from MPs and prominent individuals who have publicly condemned measures that will strip people of their citizenship, criminalise those who survive dangerous journeys to the UK and those who try to help them; bring in measures that break international refugee and maritime law, including the push back of boats; and the processing of asylum seekers offshore.

See our full statement against the Bill here.

We particularly object to Home Secretary, Priti Patel, dishonestly claiming that the Bill is needed to protect women and children from men jumping the asylum queue.  It implies that there are safe and legal routes that women can take, which is untrue.  It is a deliberate attempt to mislead people about a Bill which, as we have outlined above, will make it easier for the government to deport women including mothers and rape survivors.

This Bill is part of a wholesale attack (along with the Police, Crime, Sentencing and Courts Bill,[23] the undermining of the Human Rights Act, and the right to Judicial Review) on access to justice and on civil, economic and human rights.  We are depending on principled parliamentarians to side with women, determined to defend those rights against a government looking to shore up a cruel and authoritarian state.

[1] “ASYLUM POINT OF CLAIM INFORMATION BOOKLET”, March 2021.

[2] We helped win the legal precedent that women are “unable not unwilling” to report rape. R v SSHD ex parte Ejon (QBD) [1998] INLR. See also “Gender Issues in the Asylum Claim”, published for Home Office staff on 10 April 2018.

[3] Refuge from Rape & Destitution project findings published December 2019.

[4] “The profound and long-term consequences reflect the violent, terrifying and traumatic nature of rape and parallel the responses to other life-threatening traumas. There is some evidence that rape is more pathogenic than any other form of violent crime”. (Kilpatrick et al, 1987)

[5] UP FROM DESTITUTION (July 2021) showed 60% of women we work live on less than £70/wk (the threshold for destitution); all lived in poverty. 44% have children under 18.

[6] Nationality and Borders EN (parliament.uk) Explanatory Notes page 44 regarding Clause 34

[7] Nationality and Borders Bill: Equality Impact Assessment (publishing.service.gov.uk) e.g. Para 19(b), 21(b)

[8] https://supportnotseparation.blog/

[9] https://womenagainstrape.net/up-from-destitution/

[10] https://www.jcwi.org.uk/no-recourse-to-public-funds-public-health-risk-destitution.

[11]  “Misjudging Rape - Breaching Gender Guidelines & International Law in Asylum Appeals.” (Women Against Rape 2006). “Only a third of women in the cases examined had access to an independent report by a doctor, psychiatrist or specialist organisation to corroborate their rape claims at the hearing.Everything in my life has crumbled' | Immigration and asylum | The Guardian

[12] We helped win the legal precedent that women are “unable not unwilling” to report rape. R v SSHD ex parte Ejon (QBD) [1998] INLR. See also “Gender Issues in the Asylum Claim”, published for Home Office staff on 10 April 2018.

[13] Rape survivors are 13 times more likely to attempt suicide than [non] crime victims and six times more likely than victims of other crimes. Rape in America: A Report to the Nation, (1992). Miller, Ted R., Cohen, Mark A. and Wierama, Brian. Victim Costs and Consequences: A New Look. 1996. U. S. Dept. of Justice, Office of Justice Programs, National Institute of Justice.

[14] Joint Presidential Guidance Note No 2 of 2010: Child, vulnerable adult and sensitive appellant guidance (2008).

[15] 88% of women reporting rape to the Home Office were disbelieved. “Misjudging Rape - Breaching Gender Guidelines & International Law in Asylum Appeals.” (Women Against Rape, 2006)

[16] See Home Office guidance for staff: gender-issues-in-the-asylum-claim-v3.pdf (publishing.service.gov.uk)

[17] More than half of immigration appeals now successful, figures show | The Independent   

[18] https://refugefromrapeanddestitution.blog/2022/01/18/impact-of-support-on-womens-cases/

[19] Migrant Help’s contract with the Home Office includes helping claimants access lawyers but in practice women we work with have never been told this. When a woman explicitly asked them for help, it still took weeks of pursuing Migrant Help before it was given.

[20] YF Cameroon v Secretary of State for the Home Department”, 5 September 2014 (Ref C5/2014/2595).

[21] The end-to-end rape review report on findings and actions (publishing.service.gov.uk)

[22] Victims to get more time to report domestic abuse in England and Wales - BBC News

[23] Why women oppose the Police, Crime, Sentencing & Courts Bill - Women Against Rape

2 thoughts on “Briefing & proposed amendments to reduce the devastating effect of the Nationality & Borders Bill on traumatised victims of rape and domestic violence”

Comments are closed.