If you are currently in the UK on a spouse visa or you are the dependant of a settled EU national or a British citizen and your relationship has broken down due to domestic violence, Migrate UK can advise on how you can remain in the UK in your own right.
What is domestic violence and abuse?
According to Home Office guidance domestic violence and abuse goes beyond physical or sexual violence.
The general definition is: “Any incident or pattern of incidents of controlling coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality”.
The violence can include, but is not limited to physical, psychological, sexual, financial, or emotional abuse. Also, the controlling behaviour does not need to come from the victim’s partner. It can also come from, for example, a member of the partner’s family against whom the partner offers no protection.
Who can apply for leave to remain in the UK & under what provisions?
The domestic violence provisions of Appendix FM of the immigration rules allow applicants to apply for permission to stay as victims of domestic violence (even if their visa expired) if they have previously been granted leave to enter or remain as the spouse, civil partner or unmarried or same-sex partner
- of a British citizen,
- a settled person or
- a member of HM Forces who has served for at least 4 years.
The domestic violence provisions of Appendix FM do not apply to:
- the spouse or partner of a sponsor who only has limited leave to enter or remain in the UK
- fiancées or proposed civil partners
- those in the UK on other types of leave
- EEA nationals exercising treaty rights and their family members (they may be able to apply under the European provisions)
- those aged under 18 – although the definition of domestic violence refers to people aged 16 or over, an individual must be 18 years or over to qualify for leave as a partner.
What is the domestic violence concession?
The scheme enables victims to access public funds to aid their escape and protection from ongoing abuse.
Many will apply for the concession as a first step, before going on to make the full settlement application.
The concession has a limited reach and applies only to those who:
- have been granted leave to remain as a partner
- if the relationship has broken down as a result of domestic violence
- they are destitute and need access to public funds to leave the relationship and
- intend to apply for leave to remain as a victim of domestic violence.
If successful, the applicant will be granted 3 months leave to remain in the UK with access to public funds. However, this does not imply or guarantee that a subsequent application for indefinite leave to remain will be granted.
What are the requirements for leave to remain as a victim of domestic violence?
The applicant must:
- be in the UK
- have made a valid application
- not fall for refusal under the suitability requirements for indefinite leave to remain
- meet the eligibility requirements.
Someone who has valid leave under the spouse route but is not physically present in the UK will not be able to apply for leave to remain under the domestic violence rules while he/she is out of the UK.
Evidence of identity must be submitted unless there are good reasons beyond the applicant’s control why it cannot be provided. In many cases of domestic violence, the applicant’s partner will have retained the documents, and this can be a valid reason.
Suitability criteria look at the applicant’s character to assess if there are any reasons why they should not be allowed to remain in the UK. They relate to criminality and bad character, providing false information and owing money to the Home Office or NHS.
Where an applicant otherwise meets the rules but has been sentenced to imprisonment for less than 12 months in the last seven years, or has had a non-custodial sentence or out of court disposal in the last two years, rather than an outright refusal the applicant will be granted 30 months’ leave to remain.
According to the eligibility criteria only those who have had leave to remain as the partner of a British citizen or a settled person, or those previously granted 30 months leave to remain under the domestic violence rule, are eligible to apply. Those with leave not granted under Appendix FM will not be able to apply under these rules.
To prove that the relationship has broken down as a result of domestic violence the victim will need to show evidence of previous abuse having been notified to the relevant authorities. The guidance provided to Home Office caseworkers includes a useful table of evidence that can be submitted, and the approach used to assess the evidence.
Evidence submitted can include a criminal conviction for domestic violence, police caution, a final non-molestation or occupation order in civil court, a charging decision for domestic violence, prohibited steps orders and contact orders, letter/statement from an independent witness, arrest, police report of attendance at domestic violence incident, medical report from UK hospital or GP.
Who is eligible for a fee waiver?
The fee for an application under the domestic violence rules is the same as for all other indefinite leave to remain applications, £2,389.
Unlike other categories of indefinite leave applicants can qualify for a fee waiver if they can show that:
- they do not have adequate accommodation or any means of obtaining it, or
- they have adequate accommodation or the means to obtain it but cannot meet their other essential living needs.
The applicant will be expected to provide evidence in the form of tenancy agreements, pay slips, utility bills, bank statements, receipts of support from a local council or a refuge.
What should EEA nationals do?
Changes made to the Immigration Rules on the 14 May 2020 have extended the scope for victims of domestic violence or abuse to apply for a status under the EU Settlement Scheme (EUSS).
Previously, residency rights were limited to a former spouse or civil partner whose marriage or civil partnership has been legally terminated and who was a victim of domestic violence or abuse while the marriage/civil partnership was subsisting.
From the 24 August any family member within the scope of the EUSS (a spouse, a civil partner, durable partner, child, dependent parent or dependent relative) whose family relationship with a relevant EEA citizen or with a qualifying British citizen has broken down permanently as a result of domestic violence or abuse will have a continued right of residence where this is warranted by domestic violence or abuse against them or another family member.
A family member applying under the EUSS or for an EUSS family permit may be required to provide a certified English translation of (or a Multilingual Standard Form to accompany) a document submitted as a required evidence of the family relationship where this is necessary for the purposes of deciding whether they meet the eligibility requirements.