With domestic abuse very much in the news – and the government’s Domestic Abuse Bill receiving royal assent on 29th April, four years after it was announced in the Queen’s speech – we look here at this subject in the context of UK immigration law.
A person in the UK as a dependant on their partner’s visa is in a precarious position if they separate or divorce before being able to apply for indefinite leave to remain (ILR) after completing their 5-year (or in some cases 10-year) probationary period. This is because they now cease to meet the rules under which they were granted leave to enter or remain in the UK – one of the requirements is that there must be a genuine and subsisting relationship. (N.B. ‘Partner’ here means spouse, civil partner, same-sex partner, or unmarried partner.)
You are required promptly to tell the Home Office that you are separating or divorcing; applications that you might make in the future could be affected if you do not. You will then need to check your eligibility to stay in the UK, and if possible to apply for leave to remain in a new category, something other than as ‘partner’. Depending on circumstances, the options might be very limited. Failing that, you will need to leave the UK, probably quite quickly – with all the accompanying emotional, psychological and financial upheaval and even trauma, especially if dependent children are involved, after investing so much in a future in the UK.
By far the best option, if available, is to apply to settle in the UK. If successful, you will be able to stay without time limit and, crucially, in your own right, i.e. independently of your now ex-partner. But it’s only in very limited circumstances that an application for settlement is a possibility.
One such circumstance is when there has been domestic abuse.
If it can be shown that the relationship has broken down permanently as a result of domestic abuse or violence, an application can be made to the Home Office by the victim for immediate settlement (ILR).
What is ‘domestic abuse or violence’?
The Home Office definition of domestic abuse or domestic violence is wider than might be thought.
“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. This can include, but is not limited to, the following types of abuse:
Controlling behaviour is a range of acts designed to make a person subordinate or dependent by:
- isolating them from sources of support
- exploiting their resources and capacities for personal gain
- depriving them of the means needed for independence, resistance and escape
- regulating their everyday behaviour
Coercive behaviour is either:
- an act or a pattern of acts of assault, threats, humiliation and intimidation
- other abuse that is used to harm, punish, or frighten their victim
No distinction should be made between psychological (mental) abuse and physical abuse when assessing if a person has been the victim of domestic violence or abuse.
Note from this definition that it is “any incident” (so, maybe just one incident will suffice to establish the claim); “or pattern of incidents” (individually perhaps insufficient, but collectively describing a pattern of proscribed behaviour). Also, “can include but is not limited to …” . Note also the definitions of controlling and coercive behaviours. And finally importantly that no distinction is made between mental and physical abuse.
‘If it can be shown …’ Evidence?
You need to prove it in the application, on the balance of probabilities. There must be shown to be a causal link between the domestic abuse or violence suffered by the applicant, and the permanent breakdown of the relationship.
Where for example the applicant’s partner been convicted of assaulting the applicant, or formally cautioned by the police – this would clearly be evidence to submit (while remembering the need also to show the casual link with the breakdown of the relationship).
But many victims of domestic violence or abuse do not tell anyone – or even are themselves unaware that they are victims of it. This can be particularly so in immigration cases where cultural and societal differences between a ‘home’ country and the UK can blur the lines. It is important to say that fundamental values of respect for and dignity of the individual are common across most cultures; but it is not everywhere that they are fully recognised and enforceable by law.
The Home Office guidance includes the following:
“All evidence submitted must be considered and a conclusion drawn as to whether there is sufficient evidence to demonstrate that, on the balance of probabilities, the breakdown of the relationship was as a result of domestic violence.
Factors to be taken into account when assessing the evidence include:
- timing of the application
- length of relationship before the application is made: the fact that the relationship broke down due to domestic violence during the very early stages of the probationary period, may not be an adverse factor in reaching a decision to grant indefinite leave to remain (ILR) but in the context of the immigration history as a whole may give rise to suspicion
- previous immigration history, particularly where there is evidence that the applicant has made a number of attempts to secure leave in the UK on different grounds
- length of time since the alleged incident and reasons given for any delay in submitting an application”
The fact a couple are still living at the same address when the application is made may not necessarily be taken as an indicator the relationship has not broken down, as this could be due to a number of reasons.
Note also that the abuse need not be by the partner. Abuse by a family member can also be relevant evidence. For example where the person who abuses the applicant is a member of the partner’s family and against whom the partner offers no protection, and this was the reason for the breakdown in the relationship between the applicant and partner.
A thorough exploration of the circumstances of the relationship breakdown might reveal a possible claim for immediate settlement, where otherwise there could be no option but to leave the UK.
We have recently succeeded in a case where our client, while she was well aware that her relationship was unhappy and unhealthy, did not know that she had been the victim of actionable domestic abuse over a long period of time. Careful teasing out of the relevant facts, and constructing a detailed chronology of conversations and events, revealed it. The next concern was how to prove it: there was no physical abuse, no reports had been made to the police, nor visits to the hospital or GP; and no witnesses. But there were many sms and Whatsapp messages which collectively exposed the pattern of abusive, controlling behaviour. This was all presented carefully within a very long and detailed witness statement from the applicant, and a further detailed statement from her dependent daughter, attaching certified translations of many of the hundreds of messages and conversations. After answering some initial questions from the Home Office, the claim was quickly and fully accepted. Our client and her daughter were granted immediate ILR, so allowing them to continue to live their lives and to plan their futures in the UK.