Immigration Law Practitioners and Litigants often use the term “Domestic Violence”. I have been hearing this term a lot by the Migrants who come to the United Kingdom with the hope to start their new life with a Partner who is either British, Settled or with Refugee Status etc.

This new hope of starting a new life, is, in some cases diminished, due to being faced with a dilemma as a result of an entirely different attitude from their partner or due to the atmosphere being different within family, creating a helpless feeling. In certain cases, passports are taken from their possession and they are deprived from socialising with other family members or friends.

Such an attitude or atmosphere has been classified as Domestic Violence and it is very important that such victims be given information about their rights and what steps need to be taken to secure their immigration status.

Definition of Domestic Violence

The term domestic violence and what constitutes domestic violence is a very important concept to understand. A decade ago, domestic violence was only confined to physical abuse and the whole case was required to be supported and evidenced by a police report.

The evidence that was required by the applicant included:

   – Answers to the question “did the applicant report the physical abuse to the police”

   – To provide the Police log reference number

   – To inform the Police if the applicant had informed any close family member or friend about this physical abuse.

For migrants who know very little about the practices and laws surrounding domestic violence in the UK, it can be very difficult to know what the reporting procedures are, who to turn to for help and support, and what supporting agencies there are within this field.

It is important to note here that things have now changed and the Home Office has issued and updated its guidance on Domestic Violence which was published on 05 February 2018 and defined it as;

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. This can include, but is not limited to psychological, physical, sexual, financial and emotional abuse.

The Home Office has explained the term and also included any controlling or coercive behaviour as domestic violence and mentioned in the guidance that; “Controlling behaviour is a range of acts designed to make a person subordinate or dependent by: • isolating them from sources of support • exploiting their resources and capacities for personal gain • depriving them of the means needed for independence, resistance and escape and • regulating their everyday behaviour. Coercive behaviour is either: • an act or a pattern of acts of assault, threats, humiliation and intimidation • other abuse that is used to harm, punish, or frighten their victim”.

The above definition of the term domestic violence clearly shows that it is not only the physical beating or injury which could be classed as domestic violence but, any behaviour from the settled spouse which comes within the parameters of the above definition would be considered as domestic violence.

This definition has even made it less important for the applicant to have a police report to prove that he or she has been a victim of domestic violence whereas, any psychological, emotional, sexual or financial controlling could be seen as domestic violence.

Here someone can ask how such controlling or a particular behaviour could be said domestic violence. The answer to this is that if such a behaviour or controlling is to the disadvantage of the non-settled spouse or used to prevent him from socialising with his or her friends could be domestic violence.

In recent times, financial abuse is the most common form of domestic violence and most of the applicants say they are working seven days a week, however they have no money as all earnings are taken away by the settled spouse and the applicant is not allowed to spend money independently for his or her own necessities.

Eligibility

The guidance of the Home Office referred above has made it clear that the following are eligible to be granted Indefinite Leave to Remain in the United Kingdom, if they prove that they were victims of domestic violence.

The only people eligible to apply for ILR are those whose:

– first grant of leave was under paragraphs D-ECP.1.1, D-LTRP.1.1, D-LTRP.1.2, (other than as a partner of a person in the UK with limited leave, a fiancé or fiancée or proposed civil partner), or D-DVILR.1.2 of Appendix FM

– last grant of leave was under paragraph 276AD of the Immigration Rules or

– paragraphs 23, 26, 28 or 32 of Appendix Armed Forces

The rules additionally preserve eligibility to apply in those cases where the grant of leave as a partner was followed by a grant under the destitution domestic violence (DDV) concession. But leave under the concession does not imply or guarantee that a subsequent application for indefinite leave will be granted.

These domestic violence rules do not apply to:

– the spouse, unmarried partner or registered civil partner of a sponsor who has only limited leave to enter or remain in the UK

– fiancé or fiancées or proposed civil partners

– people seeking asylum in the UK

– the spouse or civil partner of a foreign or Commonwealth citizen who is serving, or has served, in Her Majesty’s (HM) forces and who has not completed a minimum of 4 years’ reckonable service.

Individuals in these groups are not eligible to apply under the domestic violence rules because they were not admitted to the UK, or originally given leave in the UK, as the partner of someone who already has the right of permanent residence in the UK. They have come to the UK as the dependant of someone who does not have settled status in the UK, and who may never have settled status, and should have no expectation of remaining in the UK outside that relationship.

Special considerations apply to the partners of members of HM forces as their serving partners are not able to apply for settlement while still serving but are able to apply on discharge after 4 years’ service.

Fiancés, fiancées and proposed civil partners are not eligible because their relationship is still a temporary one and they should have no expectation of remaining in the UK if it comes to an end.

Individuals who have never had leave on one of the specified routes may be able to make an application on form FLR(FP) on the basis of their family and private life under Article 8 of the European Convention on Human Rights or for leave outside the rules on form FLR (HRO) or FLR(IR).

European Economic Area (EEA) nationals exercising treaty rights and their family members are also ineligible to apply under the domestic violence rules. However, they may be able to apply under the European provisions.

The rules are not intended to benefit people whose relationship broke down because they were the alleged abuser in cases of domestic violence. The applicant does not need to demonstrate knowledge of language and life in the UK under the victims of domestic violence rules.

The above paragraphs make it clear that to be eligible for such an application, one must be on the route to settlement and partners of persons with limited leave to remain are not entitled to such grant. However, this guidance also makes it clear that such victims of domestic violence can make applications on FLR (FP) and if successful will be granted leave to remain.

It is also worth noting that partners/applicants who have right of residence under EEA Regulations are not entitled to be granted permanent settlement on the basis of domestic violence. Rather, they can make an application on the basis of retained right of residence if they meet other requirements.

Out of time applications

The question arises, when an applicant needs to make an application for indefinite leave to remain in the UK being a victim of domestic violence. The guidance makes it clear that it is not necessary to make applications before expiry of leave because there could be circumstances which prevented the applicant from making such an application and as such, even, out of time applications should be fairly considered by the Home Office.

Consideration

The recent decision of Mr Justice Knowles in R (On the Application Of) Suliman v Secretary of State for the Home Department [2020] EWHC 326 is very important in which the High Court observed that the demands of fairness require that the Home Office consider all evidence in domestic violence applications, and come to proper conclusions on that evidence.

How we can help

For expert advice and assistance regarding an application for indefinite leave to remain on basis of domestic violence, contact the Author of this blog Mr. Zameer Ahmad Chaudhry on 0121 772 4512.

Reference;

1) Appendix FM

2) Immigration Rules

3) Home Office guidance on Domestic Violence; and

4) R (On the Application Of) Suliman v Secretary of State for the Home Department [2020] EWHC 326