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Domestic Violence: The Immigration Aspect

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How victims can apply for settlement in the UK

women_violence.jpgJanuary 2009. Figures show that domestic violence accounts for nearly a quarter of all recorded violent crime in England and Wales (Amnesty International). One in four women will be a victim of domestic violence in their lifetime. On average a woman is assaulted 35 times before her first call to the police. One incident of domestic violence is reported to the police every minute. On average, two women per week are killed by a male partner or former partner and nearly half of all female murder victims are killed by a partner or ex-partner.

 Domestic violence occurs across society regardless of age, gender, race, sexuality, wealth and geography.

To protect the immigration status of domestic violence victims, the Home Office has introduced laws allowing victims of domestic violence to make applications for settlement in the UK. Those who can benefit from the Domestic Violence laws are those who have obtained a spouse visa for a two year probationary period either from the British Embassy in their home country or from the Home Office in the UK.

The definition of Domestic Violence

Domestic violence is defined by the Home Office as "any incident 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". The legal definition of injury is "Any harm done to a person by the acts or omissions of another."

These definitions serve as guidance to the Home Office in order to assess whether there has been domestic violence against the applicant or whether there are sufficient reasons to believe that the incidents occurred during the course of a marriage or relationship constitute domestic violence.

Proving that you’re a victim

In order to succeed in a claim for domestic violence, the Home Office will require documentary evidence to prove that domestic violence has occurred. The kind of evidence should include one of the following documents:
• An injunction, non-molestation order or other protection order (other than an ex-parte or interim order);
• A relevant court conviction;
• A relevant police caution;

Or at least 2 of the documents listed below:
• A medical report from a hospital doctor or registered family practitioner (GP) who has examined you, confirming that the injuries are consistent with being a victim of domestic violence;
• A police report confirming that, because of a domestic violence incident, they attended the address at which the incident(s) took place;
• A letter from a social services department confirming its involvement in connection with domestic violence committed against you;
• A letter of support or a report from a domestic violence support organisation/refuge.

Who can claim for settlement

If you can prove you’re a victim of domestic violence, you make a claim for settlement or indefinite leave to remain in the UK (or ILR).

A successful application made on the basis of domestic violence would give you and your dependants Indefinite leave to remain in the UK.

You can make a claim if you are:

• the spouse, unmarried partner or civil partner of someone present and settled in the UK
• or the spouse, unmarried partner or civil partner of an EEA national exercising treaty rights in the UK

It is important to note that you are not entitled to make an application for settlement even if you can establish beyond any doubt that you have been a victim of domestic violence if you are:
• the fiancée or proposed civil partner of someone present and settled in the UK
• the fiancée or proposed civil partner of EEA nationals exercising treaty rights in the UK
• the spouse, unmarried partner or civil partner of a person having limited leave to remain in the UK
• the spouse, unmarried partner or civil partner of a person seeking asylum in the UK

If you are the spouse/unmarried partner/civil partner of a person settled in the UK:
• you must have been admitted or given an extension of stay for a period of 24 months as the spouse/unmarried partner/civil partner of a person settled in the UK;
• and your relationship must have subsisted for at least the initial period of your stay as spouse/unmarried partner/ civil partner.

Other requirements are:
• you should no longer be living with your settled spouse;
• the domestic violence must have occurred during the 2 year probationary period and while marriage was subsisting;
• the domestic violence was the only or main reason for the breakdown of the marriage / relationship;

In addition to the above, the following factors must also be noted:
• you don’t need to prove that you can maintain and accommodate yourself without recourse to public funds;
• you can apply together with any of your dependants who are not already British citizens
• you can also apply against the domestic violence carried out by a family member of your spouse/partner (such as mother in law, father in law, sister in law), from whom your spouse does not offer any protection. Such incidents are most common when you live with your spouse/partner’s family members in the same household.

If you fulfil all the criteria of the immigration rules by providing the required documentary evidences and complying with other regulations, you and your dependents will be given indefinite leave to remain in the UK.

Requirements for spouses of EEA nationals

If you are the spouse/unmarried partner/civil partner of a person EU national exercising treaty rights in the UK:
• you must either have a resident card in line with your spouse/partner
• or you must be able to provide evidence that you have lived together
• you must satisfy all the other criteria outlined in the paragraph above.

If your claim is successful, you and your dependants will not be given permanent residency right away: you will be allowed to retain your rights of residence in the UK.

On completing 5 years of residence (under the EEA regulations), starting from the day you commenced you relationship with your spouse/partner, you can make an application for permanent residence (indefinite leave to remain) in the UK.

Procedure on Naturalisation of the victims of domestic violence

A successful application made on the basis of domestic violence would give you and your dependants indefinite leave to remain in the UK.
If you are the spouse/civil partner/unmarried partner of a person present and settled in the UK, you can become eligible to apply for naturalisation as a British citizen on completing 5 years of legal residence in the UK, provided you have spent the last year without any time limitations on your stay in the UK.

If you are the spouse/civil partner/unmarried partner of an EEA national exercising treaty rights in the UK, you will become eligible to apply for naturalisation as a British citizen on completing 6 years of legal residence in the UK, provided you have spent the last year without any time limitations on your stay in the UK (this means you would have to wait for another year after getting permanent residence).

Conclusion

Although the remedy provided to the two categories of applicants are different, the intention of the Home Office is to convey the message to the victims of domestic violence that they would not be left alone, if their partners or spouses choose to make use of force/threatening behaviour or other non-acceptable acts/omissions amounting to domestic violence.

However, all cases are not the same and straightforward and an independent professional advice must be sought before making an application of this kind or one may risk losing a right to stay in the UK for an indefinite period of time.

If you are a victim of domestic violence and would like to obtain legal advice regarding your case, you may be eligible for free legal advice. You can contact the Legal Services Commission on 08456081122 who can provide you with details of Immigration solicitors in your area who offer free legal help.

 

By Raheela Hussain
Greenfields Solicitors
Senior Immigration Accredited Specialist
22 January 2009 

 

The above article is meant to be relied upon as an informative article and in no way constitutes legal advice. For legal advice regarding your case, please contact Greenfields Solicitors at 020 8884 1166 for a Consultation with a Solicitor.

 

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