Can I apply for indefinite leave to remain in the UK as a victim of domestic violence?

by Sabiha Riaz

Domestic violence can take many forms and the UK law (Domestic Abuse Act 2021) criminalises a wide range of ‘abusive’ behaviours, above and beyond physical violence. The Home Office has adopted this definition within their policy, which this article will also address. The UK’s immigration rules allow victims of domestic violence to apply for indefinite leave to remain in the UK, which is otherwise known as settlement.

This means that that they are able to stay in the UK without any time limits, and there will not be any restrictions as to work, studies, access to healthcare or social security benefits, and ultimately they can apply for a British citizenship. This article will address the process of application under this route.

What is domestic violence?

According to the Home Office, domestic violence is any incident or pattern of incidents which involve controlling, coercive, or threatening behaviour, violence, or abuse between partners or family members, irrespective of gender, sexuality, or culture. Some of the recognised abuses include psychological, physical, sexual, financial, and emotional. It is, however, not limited to this.

Who is able to apply for indefinite leave to remain under this route?

There are only certain people that are eligible to apply for indefinite leave to remain under this route. The rules explicitly say that those who have had leave to remain as the partner of a British Citizen, or as a partner of a person settled in the UK, inclusive of refugees, or as a partner of a member of the UK armed forces, who has served for at least four years, are eligible to apply. Anyone that was previously granted 30 months leave to remain under the domestic violence rule, is also eligible to apply for indefinite leave to remain in the UK.

The domestic violence rules do not apply to the spouse, unmarried partner or registered civil partner of a sponsor who has only a limited leave to enter or remain in the UK, fiancé, or fiancées or proposed civil partners or people seeking asylum in the UK. It further does not apply to 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.

Destitute Domestic Violence Concession

Most applicants who are granted leave to remain as a spouse or partner have no recourse to public funds, as it is a condition that the sponsor will be liable to support their spouse or partner.

If a relationship is broken down due to domestic violence, the applicant will ordinarily be without support and access to benefits. The applicant could potentially become destitute, which means that they will not have any access to funds and/or accommodation. In these circumstances, the individual can make an application for a concession for short-term leave, which will also allow the applicant to have access to public funds, should the application be approved.

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.

If successful, the applicant will be granted limited leave for three months with access to public funds. During this time, the applicant must submit a valid indefinite leave to remain application as a victim of domestic violence, before the three months leave to remain expires.

Please note that being granted a concession does not mean that the application for indefinite leave to remain will be successful.

How do I make an application for indefinite leave to remain in the UK?

An application can be made online using the SET DV form. The applicant must be present in the UK when making the application.

In every application a valid ID document must be presented, this could be a passport or BRP card unless there is a reason, beyond the control of the applicant, that they cannot submit this.

The relevant fee of £2389 must be paid, however if an applicant can show that they are destitute or being supported by a third party, the application can be submitted without a fee and the Home Office may waiver the fee, after considering some supporting evidence.

Whilst completing the application online, the applicant can choose from a list of Home Office approved evidence, to prove that they are a victim of domestic violence.

What evidence can I submit to prove that I am a victim of domestic violence?

There are different types of evidence which can be submitted for example:

  • A multi-agency risk assessment conference (MARAC) referral, confirmed by any person who is a member of a MARAC. The MARAC is collaborative action by agencies which come together every month, with the aim of sharing information and developing a plan for victims who are at a risk of serious harm or homicide.
  • A ‘charging decision’ made against the preparator, by the Crown Prosecution Service (CPS), even if the charge does not result in a conviction.
  • A domestic violence protection order which is served on the abuser or forced marriage protection order to protect those who have been forced into marriage.
  • Prohibited steps orders and contact orders from the family courts where domestic violence was a factor in granting the order(s).
  • A letter from social services and/or an organisation supporting the victim of domestic violence.
  • A medical report from a UK hospital confirming injuries or conditions consistent with the account provided by the victim of domestic violence.
  • A medical report from a GP, or medical professional, confirming the injuries suffered or conditions which are consistent with the alleged domestic violence.
  • A police report of attendance at the marital home due to a domestic violence incident.
  • The applicant’s personal statement regarding the domestic abuse that they have suffered is insufficient and should be substantiated by statements from independent witnesses or professionals, in order for it be given weight by the Home Office.

In addition to the above, the Home Office will also look at suitability and eligibility requirements as below.

What are the mandatory grounds for refusal?

The Home Office will apply the suitability criteria set out in the rules to decide if the applicant is eligible for indefinite leave to remain in the UK. The rules enable the Home Office to refuse the application on mandatory grounds. Below are some examples of mandatory grounds for refusal. 

  1. The applicant is currently the subject of a deportation order.
  2. The presence of the applicant in the UK is not conducive to the public good because they have been convicted of an offence for which they have been sentenced to imprisonment for at least 4 years. According to the Home Office, ‘conducive to the public good means depriving in the public interest on the grounds of involvement in terrorism, espionage, serious organised crime, war crimes, or unacceptable behaviours.’
  3. The presence of the applicant in the UK is not conducive to the public good because they have been convicted of an offence for which they have been sentenced to imprisonment for at least 12 months and less than 4 years, unless it has been 15 years since they’ve served their sentence.
  4. The presence of the applicant in the UK is not conducive to the public good because they have been convicted of an offence for which they have been sentenced to imprisonment for less than 12 months, unless it has been 7 years since they’ve served their sentence.
  5. The applicant has, within the 24 months prior to the date on which the application is decided, been convicted of an offence, or admitted to committing an offence for which they received a non-custodial sentence or other out of court disposal, which is recorded on their criminal record.
  6. The presence of the applicant in the UK is not conducive to the public good because, in the view of the Secretary of State, their offending has caused serious harm, or they are a persistent offender who shows a particular disregard for the law.
  7. The presence of the applicant in the UK is not conducive to the public good because their conduct (including convictions which do not fall within the above paragraphs), character, associations, or other reasons, make it undesirable to allow them to remain in the UK.
  8. The applicant has failed without reasonable excuse to comply with a requirement to attend an interview, provide information, provide physical data or undergo a medical examination or provide a medical report.

What are the Suitability requirements?

An application may be refused if the Secretary of State finds that the presence of the applicant is not beneficial to the public good because the Home Office has found one of the following:

  1. An applicant’s asylum claim has been previously refused as the Home Office believed that there are serious reasons to hold that the applicant committed certain serious crimes and has avoided being brought to international or national justice to be held to account for their actions. In legal terms, this is where an individual is excluded under Article 1F of the Refugee Convention, or the humanitarian protection, under paragraph 339D of the refugee convention.
  2. The Home Office has previously decided that there are reasonable grounds that the applicant is a danger to the security of the UK, as per Article 33(2) of the Refugee Convention.
  3. The Home Office considers that they are a person to whom the above paragraph 1 or 2 may apply, and the person has not made a protection claim, or the person made a protection claim which had been finally determined without reference to Article 1F of the Refugee Convention or paragraph 339D of these Rules. A protection claim is where an individual claims that their removal from the country would breach the obligation that UK has under the refugee convention or its obligations to people who are eligible for a grant of humanitarian protection.
  4. The Home Office has previously decided that the applicant has been convicted, by a final judgment, of a particularly serious crime and they constitute a danger to the community of the UK, as per Article 33(2) of the Refugee Convention.

What are the other grounds for refusal?

The Home Office will also consider whether the applicant falls foul of any of the following criteria (the full list can be found in Appendix FM S-ILR.1.1–4.5).

Applications will normally be refused if:

  • The Applicant has given false information, representations, or provided false documents in relation to the application (including false information submitted to any person to obtain a document used in support of the application).
  • The Applicant failed to disclose material facts in relation to the application.
  • A maintenance and accommodation undertaking has been requested under paragraph 35 of the Immigration Rules and has not been provided. (S-ILR.2.4). This is generally an undertaking from a sponsor as to maintenance (funds) and accommodation.
  • When considering whether the presence of the applicant in the UK is not conducive to the public good, any legal or practical reasons why the applicant cannot presently be removed from the UK must be ignored. (S-ILR.3.1)

Applications may be refused if one or more relevant NHS body has notified the Secretary of State that the applicant has failed to pay the charges in accordance with the relevant NHS regulations on charges to overseas visitors, and the outstanding charges have a total value of at least £500. (S-ILR.4.5)

What are the eligibility requirements for Indefinite Leave to Remain as a victim of domestic abuse?

To meet the eligibility requirements for indefinite leave to remain as a victim of domestic abuse, all of the requirements of rules E-DVILR.1.2 and 1.3 within the policy must be met, as provided below.

E-DVILR 1.2

The applicant’s first grant of limited leave under this route must have been as a partner of a British Citizen, a person present and settled in the UK, a person with refugee leave, or a person in the UK with pre-settled status or as a partner of a refugee. Remember, this does not include a fiancé(e) or a proposed civil partner. Any further limited leave must have been granted in the following circumstances:

  1. granted as a partner (other than a fiancé(e) or proposed civil partner) of a British Citizen, a person present and settled in the UK, a person with refugee leave, or a person in the UK with limited leave under Appendix EU.
  2. Granted to enable access to public funds, pending an application under this route and before the grant of leave was provided as a partner (not including a fiancé(e) or proposed civil partner) of a British Citizen, a person present and settled in the UK, a person with refugee leave, or a person in the UK with limited leave.
  3. The applicant’s last grant of limited leave must have been granted under paragraph D-DVILR.1.2. This is where an applicant is granted further limited leave to remain for a period not exceeding 30 months, as they did not meet the requirements for indefinite leave to remain as a victim of domestic abuse, because they could not demonstrate sufficient knowledge of English (S-ILR 1.5), or they have, within the 24 months prior to the date on which the application is decided, been convicted, or have admitted to an offence, which they received a non-custodial sentence or other out of court disposal that is on their criminal record.

E-DVILR 1.3

The applicant must provide evidence that during the last period of limited leave, the applicant’s relationship with their partner broke down permanently as a result of domestic abuse.

The application will be considered on a balance of probabilities, however, the key to a strong application is evidence and addressing each rule as stated above. It is important for victims of domestic violence to know that there are provisions for them to apply under. There are organisations who are also available to support.

This article is intended for guidance only and ‘must not’ be relied upon for specific advice.

 


Why not follow Law Simplified on FacebookTwitterInstagramTiktok and LinkedIn? Please contact us at lawsimplifieduk1@gmail.com if you wish to submit a written piece.


Post 2

Leave a Comment