Domestic violence is a serious infringement of someone’s rights. While most often perpetrated against women, it can affect men and women from any ethnic background and part of society. Migrants can be particularly vulnerable and unwilling to seek help because of their precarious status in the UK.
In this guide we will look at how someone can apply for permission to remain in the UK as a victim of domestic violence. We will be looking at the rules under Appendix FM, the section of the Immigration Rules that deals with family immigration from outside the EU. Essentially, the Home Office will allow someone who has come to the UK under Appendix FM to stay in the country permanently if the relationship breaks down because of domestic violence.
Legal aid
This article is an introduction to an application under the domestic violence rules, but it is no substitute for detailed legal advice on a person’s circumstances.
The government does recognise that victims of domestic violence are vulnerable and therefore, unlike most immigration issues, legal aid is available for these applications for those who are eligible financially.
Given the complexity of the evidence required and potential lack of appeal rights it is important to seek out legal representation. You can search for solicitors using the links on this page. Not all solicitors have a legal aid contract, but those who do not have a professional obligation to advise you of one if they think you qualify for legal aid.
What is domestic violence and abuse?
Home Office guidance makes clear that domestic violence and abuse goes beyond physical or sexual violence. The general definition is worth stating here:
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.
There are a couple of things to take from this definition. Physical violence is not required to meet the definition — controlling behaviour or threats of violence also count. Another point is that the behaviour need not come from the victim’s partner.
Example
Salima lives in London with her husband and his parents. Samila works and money is paid into her bank account. Her mother-in-law, who controls all the household finances, holds on to Salima’s bank cards and does not give any money to Salima. Salima’s mother in law takes her to work and picks her up from work and has confiscated her mobile phone. Outside of work hours Salima is not allowed out of the house and when the rest of the family are absent she is locked in the house without a key.
Although there is no violence, the controlling behaviour of Salima’s mother-in-law would amount to domestic abuse.
Who can apply?
Migrants who are in the UK as the spouse or partner of a British citizen or someone settled can apply for permission to stay as a victim of domestic violence (even if their visa has expired).
Those in the UK to marry who have not yet swapped to leave as a partner will not qualify.
Example
Ana is a Thai national. She has entered the UK as a fiancée to marry her British partner. Prior to their marriage her financé is violent towards her and she flees to a refuge. Ana will not qualify to stay under the domestic violence rules as she was a fiancé and will need to return to Thailand.
Those in the UK on other types of leave are also unable to apply, although they may in certain circumstances qualify for asylum or humanitarian protection. Different rules also apply to family members of EU nationals.
Example
Sharin is a national of Yemen. She has leave to remain as a dependent of her husband, who is on a Tier 4 student visa. Their relationship breaks down because of domestic violence. She will not be able to apply under the domestic violence rules.
However, Sharin is able to claim asylum as her family will force her back to her husband if she is to return to Yemen and the authorities do not protect women from domestic violence.
The domestic violence concession
A victim of domestic violence who is working may be able to escape the situation by moving elsewhere and supporting themselves while making an application to stay in the UK.
Those without the means to do this are likely to flee to a refuge to escape the family home. After a short while it will become necessary to apply for benefits (“public funds”) to provide support and accommodation. The Home Office has recognised that those in this situation do not have access to public funds and may become destitute.
As a result, it is possible to apply for short-term leave under the destitute domestic violence concession. Many migrants who are victims of domestic violence will apply for this concession as a first step.
To be successful an applicant must show that:
• they have been granted leave to remain as a partner
• the relationship has broken down as a result of domestic violence
• they need to access public funds in order to leave the relationship
• they intend to apply for leave to remain as a victim of domestic violence.
The application is made on this form.
If successful, the applicant will be granted three months leave to remain in the UK with access to public funds.
A grant of leave under the concession does not mean that a full grant of leave will ultimately be successful, but it does allow a vulnerable migrant to escape to a safe space with the help of public funds.
Making an application under the domestic violence rules
The correct form for the application is SET(DV). To succeed, 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.
We’ll now look at those four bullet points in a bit more detail.
Being physically present in the UK
Being in the UK is relatively easy to demonstrate but the rule itself is problematic and can result in victims being stranded overseas.
Example
Sarah is a Somali national. She has leave to remain in the UK as the spouse of her British husband who is abusive and controlling. Her husband Simon arranges a visit to Somalia, telling Sarah they are to visit her parents. She does not want to go and agrees only out of fear. When they arrive in Somalia, Simon abandons Sarah and takes her passport and visa documents. Sarah will not be able to apply for leave to remain under the domestic violence rules while she is out of the UK.
A valid application
Evidence of identity
In every application evidence of identity must be submitted unless there are good reasons beyond an 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. However in most cases I would advise clients to apply for a passport from their embassy and provide evidence that this application has been submitted.
Example
Michael is a Jamaican national. He has suffered violence at the hands of his wife and she has kept his passport. He is now living separately and has no contact with her. Michael is unable to submit his passport but has applied to the Jamaican embassy for a new passport, having reported his as stolen, but is still waiting for the passport to be issued when he submits his domestic violence application. Michael would be able to submit a valid domestic violence application as he is unable to provide a passport for reasons outside his control.
Paying the fee
The fee for an application under the domestic violence rules is the same as for all other indefinite leave to remain applications, £2,389. But unlike other categories of indefinite leave it is possible to apply for a fee waiver. This is done by sending the application in without paying the fee and providing evidence that it qualifies for a waiver.
The applicant must 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 can not meet their other essential living needs.
A decision on the fee waiver must be based on evidence of poverty. An applicant can be expected to provide the following types of evidence:
• tenancy agreements,
• payslips,
• utility bills, and
• bank statements.
For those who are unable to provide documents because they fled the family home without them the Home Office will decide if the applicant is telling the truth about their circumstances. In those cases a grant under the concession, receipt of support from a local council or a refuge will help establish credibility.
Example
Salima has left the family home and is no longer working. She is living in a refuge and has been granted leave under the Domestic Violence concession and has successfully claimed benefits. All her bank statements are back at in the family home. However, the Home Office may accept that she is destitute even though she cannot provide her bank statements. Salima should provide the Home Office with evidence that she is in receipt of benefits and a letter of support from the refuge confirming the support she has been receiving.
Suitability requirements
The suitability requirements are the same as for other applications for indefinite leave under Appendix FM. They relate to criminality and bad character, providing false information and owing money to the Home Office or NHS. Gabriella goes into detail on the suitability requirements in this post.
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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.
Example
12 months ago Nasreen accepted a caution for shoplifting after not being provided food by her abusive husband. The Home Office accepts that she meets all the other requirements of the domestic violence rules so will grant her leave to remain for 30 months. Nasreen will be able to apply for indefinite leave in another 12 months.
Eligibility requirements
Immigration status
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.
Partners of members of the armed forces can apply under the similar domestic violence rules in Part Six of Appendix AF (for “armed forces”).
The Court of Session in Scotland held in A v Secretary of State for the Home Department [2016] CSIH 38 that excluding the spouses of refugees from the scheme discriminates against them, in violation of Article 14 of the European Convention of Human Rights. At time of writing the Home Office had not changed the rules in response to this judgment. Its guidance says that the scheme “does not include those whose leave was given as the partner of a refugee or recipient of humanitarian protection”.
There is no need for the applicant to have leave to remain at the time when the application is submitted. The authorities recognise that there are circumstances where the controlling nature of the partner has means that the applicant’s leave has expired.
Relationship has broken down as a result of domestic violence
The rules do not state that specific documents should be submitted with an application. All evidence submitted must be considered by a case worker when considering if, on the balance of probabilities, the breakdown of the relationship was because of domestic violence.
That said, the guidance provided to Home Office case workers includes a useful table of evidence that can be submitted, and the approach used to assess that evidence.
Example
Sarah’s husband has accepted a caution for domestic violence after an incident at the family home. The Home Office will accept this as conclusive proof that domestic violence has taken place.
Tina has been successful in obtaining a non-molestation order but there is no finding of fact in the order. This will be considered strong evidence of domestic violence having taken place but will need to be supported by other evidence.
Farah has provided a letter from the refuge that repeats her account of domestic violence. This would be considered weak evidence by the Home Office. The decision maker would be expected to confirm that the refuge has not formally assessed Farah as a victim of domestic violence and is not offering support on that basis. Other evidence will be needed for the Home Office to find domestic violence took place.
Human rights
Appendix FM states that it “sets out the requirements to be met and, in considering applications under this route, it reflects how, under Article 8 of the Human Rights Convention, the balance will be struck between the right to respect for private and family life and the legitimate aims”. Despite this statement, an application under the domestic violence rules is not automatically what’s called a “human rights application”. This is quite a technical point for non-lawyers but what it means is that there is not an automatic appeal to a judge if the application is refused.
It is therefore vital the application includes an explicit human rights application alongside the domestic violence information. An applicant should provide clear details of their life in the UK, any support they are receiving from a refuge or social services department, any medical conditions and any children they have, in particular if the children are British.
It is of course vital that this is also well evidenced. If a human rights application is not included the only remedy will be administrative review and judicial review.
Centre for Nigeria Progress 