Domestic Violence and UK Immigration Rules – Domestic Violence and UK Immigration Rules

If you are in immediate danger, please call 999.

Moving to another country, away from family and friends is a brave move. Expats who find themselves in an abusive relationship, far from a support network must show immense courage and fortitude to survive; especially if they have children.

The UK Immigration system offers protection for married and unmarried partners who are subject to domestic violence. But does it go far enough? Are those entering the country on a UK spouse or Unmarried Partner visa provided a route to remain in the UK if the relationship breaks down. What about those granted refugee status? Is there financial help available for abuse victims who need legal advice, but have no access to money?

This article aims to answer these pressing questions.

Non-EU nationals married to a British citizen

The Immigration Rules relating to applications for Indefinite Leave to Remain (ILR) following a breakdown of a relationship as a result of domestic violence are contained in:

• Immigration Rules, Part 8, paras 289A‒289D—for those granted leave as a spouse, civil partner, unmarried or same-sex partner under Part 8
• Immigration Rules, Appendix FM, paras DVILR.1.1‒D-DVILR.1.3—for those granted leave as a partner under Appendix FM

These rules cover those whose sponsoring partner is a British citizen or has settled status. They do not cover partners of those with refugee leave or humanitarian protection or those with leave to enter or remain as a fiancé(e)/proposed civil partner. We will discuss the domestic violence rules that apply in these situations below.

If an application under the rules is successful, the victim of domestic violence will usually be granted ILR.

Definition of domestic violence

The definition of domestic violence relied upon by the Home Office is:

'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.'

Evidence required

The Home Office will require evidence of domestic violence, including:

• police reports
• court orders, such as an Occupation Order or Non-Molestation Order
• medical reports

Dependent children

There is provision for dependent children to be included on an application for leave under the domestic violence rules. Dependent children who are over 18 years old at the time of application, provided they were given limited leave with a view to settlement under para 302 or Appendix FM and are not leading an independent family life and have not formed an independent family unit, can also apply for indefinite leave.

Non-EU nationals in a relationship with EEA citizen exercising Treaty rights in the UK

EU laws on the free movement of EU citizens don’t give non-EU citizens’ rights in their own name. Rather, non-EU citizens can only gain rights under those laws if they have a family link with an EU citizen. This poses a problem for victims of domestic violence. In order to stay in a EU Member state, does the non-EU citizen have to remain married to the EU citizen?

It has long been the position that non-EU citizens can remain in the same country as their EU citizen spouse following a separation. Upon divorce, the victim can retain a right to reside in the EU Member State if:

• they have been married for three years of which at least one was spent in the Member State (Citizens Rights Directive, art 13(2)(a)
• they have custody of an EU citizen child (Citizens Rights Directive, art 13(2)(b)), or
• they have been in difficult circumstances as a victim of domestic violence (Citizens Rights Directive, art 13(2)(c))

The recent case of Secretary of State for the Home Department v NA (Aire Centre intervening) [2016] All ER (D) 93 (Jul), recently considered whether a non-EU national who has been a victim of domestic violence and who is residing in an EU Member State with an EU citizen can stay in the country if divorce proceedings are instigated after the EU national has left the Member State.

The case involved a national from Pakistan. She was subjected to domestic violence in the UK by her former husband who was a dual Pakistani/German national. They had two daughters who were German citizens, but had lived their lives in the UK and had no connection to Germany outside of their citizenship status. The woman began divorce proceedings after her husband had left Britain.

The Court of Appeal referred the case to the European Court of Justice (ECJ).

The ECJ took the view that a non-EU citizen who is divorced from an EU citizen at whose hands she has been the victim of domestic violence during the marriage, loses his or her right to remain in a Member State if divorce proceedings are not finalised before the EU national leaves the Member State.

This is a gross travesty of justice and risks leaving many non-EU victims of domestic violence with no choice but to stay in an abusive relationship or risk being deported. In this case the victim only got the right to stay on the basis of her care for the children, not as a victim of domestic violence. So a victim without children would not have any protection.

Critics of the decision point out that it goes against the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention). This convention, which has yet to be signed by the EU, but has been ratified by many EU states, makes no mention of the fact that the perpetrator of the abuse must be in the country where the victim is residing for its provisions to apply.

Refugees

Until recently, refugees had been excluded from the right to Indefinite Leave to Remain under the domestic violence provisions. However, in the case of A” v Secretary of State for the Home Department [2016] CSIH 38, the Inner House of the Court of Session held that excluding the spouses of refugees from the so-called ‘domestic violence concession’ (DVC) in Section DVILR of the Immigration Rules discriminates against such spouses in violation of Article 14 of the European Convention of Human Rights.

The Home Office is appealing the decision, but it is hoped that eventually, refugee victims of domestic violence will receive the same treatment as non-EU nationals married to a British Citizen.

Concluding comments

The domestic violence provisions are complex and victims seeking to use them will need legal advice. OTS Solicitors is highly experienced in handling these types of applications and will work with you in a sensitive, confidential manner.

You and your children’s safety are our paramount concern.

You can find further help with regards to shelter and support at the refuge.org website.

Based in London’s West End, our expert team of solicitors are committed to delivering the best results for our Employment and Immigration clients. If you wish to receive legal advice on any of the points raised in this article, please phone our office on 0203 959 9123 to make an appointment.