Domestic Violence - The Immigration Aspect

Introduction

Spouses, civil partners, unmarried and same-sex partners of a person settled in the UK or of an EEA national exercising Treaty Rights in the UK, whose basis of stay is dependent on their partners, may apply for a right to stay in the UK in the event the relationship breaks down as the result of domestic violence.

If victims of domestic violence, who are partners of settled persons, fulfil all the criteria of the Immigration Rules and provide the required documentary evidence, they would be given indefinite leave to remain in the UK.  Knowledge of Life in the UK is not a requirement.

Family members of EEA nationals who cease to be family members of the termination of a marriage or civil partnership owing to domestic violence can retain a right of residence in the UK if they provide the required documentary evidence and fulfil the requirements of the EEA Regulations. On completion of a total of 5 years’ legal residence (under the EEA regulations) in the UK, the applicant would then be able to make an application for permanent residence in the UK.

What is Domestic Violence?

Definition of Domestic Violence:
"Any instance of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults who are or have been intimate partners or family members regardless of gender or sexuality".

Family members are: mother, father, son, daughter, brother, sister, grandparents, in-laws or step-family.

An application can also be made in respect of domestic violence perpetrated by a family member of the partner where the partner did not offer any protection.

Definition of Injury (legal):
"Any harm done to a person by the acts or omissions of another."

The above definitions serve as guidance to the UKBA in order to assess whether domestic violence has been perpetrated against an applicant.

Who can apply?

Only the following persons can make an application for a right to stay in the UK as the victims of domestic violence:

1. Spouses, civil partners, unmarried or same-sex partners of a person present and settled in the UK

2. Spouses, civil partners, unmarried or same-sex partners of an EEA national exercising Treaty Rights in the UK

Who cannot apply?

The following persons are not entitled to make an application for settlement even if they can establish they have been the victims of domestic violence:

1. Fiancés and proposed civil partners of a person present and settled in the UK

2. Fiancés and proposed civil partners of EEA nationals exercising treaty rights in the UK

3. Spouses, civil partners, unmarried or same-sex partners of a person having limited leave to remain in the UK

4. Spouses, civil partners, unmarried or same-sex partners of a person seeking asylum in the UK

The Destitution Domestic Violence (DDV) Concession

Spouses, civil partners, unmarried or same-sex partners can apply under the Destitution Domestic Violence (DDV) concession for a period of 3 months’ limited leave to remain to enable them to claim benefits whilst they make a claim for indefinite leave to remain under the Domestic Violence Immigration Rule.   This is only for those applicants who have no means of financial support on leaving their partner where the relationship has broken down as a result of domestic violence.  The applicant must intend to make an application for Indefinite leave to Remain under the Domestic Violence Immigration Rule.

Spouses, Civil Partners, Unmarried Partners, Same-sex partners of persons present and settled in the UK

In this type of case, the applicant must have been admitted to the UK, or given an extension of stay, for the probationary period (27 months or 2 years respectively) as the spouse, civil partner, unmarried or same-sex partner of a person present and settled in the UK and their relationship must have been subsisting at the beginning of the applicant`s stay.

In addition to the above, the following must be satisfied:

  • The applicant should no longer be living with his/her settled spouse
  • The domestic violence must have occurred during the 2 year probationary period and whilst the relationship was subsisting
  • The domestic violence was the main reason for the breakdown of the relationship
  • The applicant must provide specified documentary evidence to establish that he or she is a victim of domestic violence, such as such as a court order or conviction against his or her settled spouse/partner, an injunction, a non-molestation order, police cautions, medical reports or letters from social services or domestic violence support groups.

The applicant can apply together with any of his or her dependants who are not already British Citizens.

Spouses of EEA nationals exercising Treaty Rights in the UK

The applicant must either have a Residence Card in line with his or her EEA national spouse/partner who is exercising Treaty Rights in the UK or provide evidence that he or she resided together with the EEA national spouse/partner who is exercising Treaty Rights in the UK.

In addition to the above, the following must be satisfied:

  • The marriage or civil partnership must have terminated and the EEA national must have been exercising Treaty Rights at the time of the termination (Decree Absolute)
  • The applicant should no longer be living with his or her EEA national spouse/partner
  • The domestic violence must have occurred during the subsistence of their relationship and while the EEA national was exercising Treaty Right
  • The domestic violence was the main reason for the breakdown of the marriage or relationship
  • The applicant has to qualify as a worker, self-employed person or a self-sufficient person in order to qualify to retain a right of residence (if the applicant is a student then he or she will not qualify unless a student with sufficient resources to be self-sufficient)
  • The applicant must provide good documentary evidence to establish that he or she is a victim of domestic violence such as a court order or conviction against his or her settled spouse/partner, an injunction, a non-molestation order, police cautions, medical reports or letters from social services or domestic violence support groups

The applicant can apply together with any of his or her dependants who are not already British Citizens or EEA nationals.

Conclusion

Partners whose basis of stay in the UK is based on the immigration status of their abusive partners need not remain with the abusive partner in order to continue to enjoy legal status in the UK.  Provisions apply to assist those who can prove their relationship broke down owing to domestic violence.

However, these are not straightforward applications in terms of the required evidence and professional advice should be sought before making an application of this kind, otherwise one may risk losing the right to stay in the UK.  Please note there are also social services, help groups and charities who can assist victims of domestic violence.

Our Services

  • We can advise on the legal requirements, procedure and as to the required supporting documents for making an application for a right to stay in the UK on the basis of domestic violence
  • We can assess the merits of your application and advise as to how to improve your application
  • We can fully prepare and submit an application on your behalf for indefinite leave to remain or a retained right of residence
  • We can advise as to the merits of an appeal should your application be refused and assist and represent you in an appeal

 

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