In R v Inhabitants of Eastbourne (1803) 4 East 103, Lord Ellenborough declared, absent of statutory support for poor foreigners, the ‘law of humanity, which is anterior to all positive laws, obliges us to afford them relief, to save them from starving’. For one group, however, the law falls short of this standard.

Foreign-national husbands, wives and civil partners of British citizens can live and work in the UK on a spouse visa. They are, for the first two years of their visa, subject to the ‘no recourse to public funds’ rule, preventing access to mainstream state benefits. According to Home Office and independent statistics, there is a small but significant and growing incidence of domestic violence against the non-British spouse during this two-year ‘probationary period’. The data are grossly unreliable, but it is estimated that 90% of victims are female and more than half are originally from India, Pakistan or Bangladesh.

An abused spouse fleeing violence can apply to the Home Office for indefinite leave to remain, stating that the marriage broke down because of domestic violence, but evidence suggests this application (almost 1,500 are made annually) can take two years to be determined. Meanwhile, the victim is in an impossible situation.

She will rarely be able to find or fund a refuge place; these are funded largely by housing benefit and are, in any event, oversubscribed. She will often be ostracised by family and friends, who may be in contact with the abuser. If she is responsible for her British child, she will not normally be able to claim child benefit. Social services can support her, but local authorities frequently offer instead to pay for travel to the victim’s home country or to take children into care.

The result of local authorities’ reluctance to help is unsurprising. Victims feel blame is being placed on them for leaving a violent spouse and that they ought to have remained in the family home. A legislative framework that provides any practical or psychological barrier to accessing support can only be interpreted as a bar to escaping violence.

As advisers, we must be sensitive to such cases. Many victims shy away from approaching (predominantly male) authority figures for cultural reasons. They may not seek necessary medical advice after suffering violence and may fear contact with legal advisers. Moreover, although legal aid is not – yet, at least – a public fund, advisers often report that victims experience a false feeling of disentitlement, dissuading them from seeking legal advice regarding housing and support. One survey noted that a victim did not seek help from a citizens advice bureau, considering that, because she was not a citizen, she could not be helped by them.

So what is the solution? One might be to modify the ‘no recourse’ rule. It is not realistic to argue that all 80,000 spouse visas issued annually should allow access to benefits, but the rule could arguably be removed when a domestic violence application is made to the Home Office. This would minimise the time a victim spends without support (and could allow a backdating of funding for refuges).

An alternative is to require violent spouses to pay for the upkeep of their abused spouses. However, my research suggests this risks retaliation, even in cases where the abusers can pay that upkeep. It also reinforces a notion that the victim is financially reliant on the abuser, which maintains the power discrepancy between the spouses, an arguable cause of the violence. One could also reclassify housing benefit as not a public fund, extend asylum support to cover these non-asylum cases or reform the probationary period.

Whatever the solution, the current legislative framework, and the culture of ineligibility it creates, poses an uncomfortable dilemma for this most vulnerable group of people: remain with a violent spouse or escape to the unsupported unknown. I suspect Lord Ellenborough would not approve.

Hugh Jackson is a paralegal at Steel and Shamash. This article is based on his LLM dissertation, The law of humanity: is the United Kingdom doing enough to support spouse visa holders who are victims of domestic violence?