Domestic violence is a serious infringement of someone’s rights. It can affect men and women from any ethnic background and part of society, but 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.
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.
Who can apply?
Only those who have leave to remain in the UK as a spouse or partner of a British citizen or someone settled can apply for permission to stay as a victim of domestic violence. Those in the UK to marry who have not yet swapped to leave as a partner will not qualify.
Those in the UK on other types of leave are unable to apply, although they may in certain circumstances qualify for asylum or humanitarian protection. Different rules also apply to family members of EEA nationals.
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 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.
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.
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,
- 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.
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.
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.
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.
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.
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.
Where to go for help?
It is important for victims of domestic violence to know there are organisations out there who will be able to help. If you are affected by domestic violence and abuse you can get help from the following places:
National Domestic Violence helpline
The National Domestic Violence Helpline is a freephone 24 hour helpline which provides advice and support to women and can refer them to emergency accommodation. The National Domestic Violence Helpline is run in partnership between the charities Refuge and Women’s Aid.
There are translation facilities if your first language is not English. The helpline also offers help for callers with hearing difficulties.
Telephone: 0808 200 0247 (24 hours)
Men’s Advice Line
The Men’s Advice Line is a confidential helpline for all men experiencing domestic violence by a current or ex-partner. They provide emotional support and practical advice and can give you details of specialist services that can give you advice on legal, housing, child contact, mental health and other issues.
Helpline: 0808 801 0327 (Monday to Friday, 10am to 1pm and 2pm to 5pm)
These organisations will be able to signpost you to a legal aid lawyer to help with any applications. I cannot emphasise enough that it is OK to call and they will help.
Thanks to my colleague, Louise Fenney at NLS Solicitors, for her input into this article.