Understanding the New ILR Rules for Victims of Domestic Abuse
As set out in this earlier post, the Immigration Rules on applying for indefinite leave to remain (ILR) as a victim of domestic violence or abuse have recently changed. On 31 January 2024, Appendix Victim of Domestic Abuse (‘Appendix VDA’) came into force, coupled with updated guidance, published on 04 April 2024.
The new guidance includes updated information on how domestic violence or abuse might be evidenced in an application for ILR. This topic was addressed in a previous post, and this post will provide an updated guide to evidencing domestic violence in applications for ILR, in light of the new rules.
What Do You Need to Show in an Application for ILR Under Appendix VDA?
To apply for indefinite leave to remain under Appendix Victim of Domestic Abuse, an applicant must show that their relationship with their partner broke down ‘permanently as a result of domestic abuse’.
It is important to understand what the guidance means by domestic abuse, and how an applicant might appropriately evidence domestic abuse in an application under Appendix VDA.
How is Domestic Abuse Defined?
The statutory definition of domestic abuse can be found in the Domestic Abuse Act 2021. In summary, domestic abuse involves any single incident or pattern of conduct where someone’s behaviour towards another person is abusive, where the people involved are over the age of 16, and are (or have been) personally connected with one another. The behaviour will be considered ‘abusive’ if it constitutes any of the following:
- Physical or sexual abuse;
- Violent or threatening behaviour;
- Controlling or coercive behaviour;
- Economic abuse;
- Psychological, emotional, or other abuse.
According to the 2021 Act, two people are ‘personally connected’ to each other if they:
- Are or have been, married or civil partners;
- Have agreed to marry or become civil partners;
- Are or have been in an intimate personal relationship with each other;
- Are, or have been, parents (or had a parental relationship) to the same child;
- Are relatives.
The guidance further sets out what is meant by ‘coercive’ and ‘controlling’ behaviour. ‘Coercive’ behaviour can be an act or pattern of acts of assault, threats, humiliation and intimidation. ‘Controlling’ behaviour is defined as 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.
The guidance states that forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment are all considered forms of domestic abuse.
Transnational Marriage Abandonment
The guidance explains that transnational marriage abandonment:
‘Refers to the practice whereby the sponsoring partner or their family members, abandons or strands their visa dependent partner abroad, usually without financial resources, usually with the aim of preventing their return to the UK.’
Importantly, the new guidance also clarifies that where abandonment marks the end of the relationship, the requirement that the breakdown of the relationship be due to domestic abuse will be met. This is because transnational marriage abandonment is recognised as a distinct and identifiable form of domestic abuse.
Other Considerations in Relation to Domestic Abuse
The guidance also makes note that domestic abuse does not necessarily need to have been directed at the applicant: A person may be the victim of abuse if the abusive conduct is directed at another person, like a child (Section 1(5) of the Domestic Abuse Act 2021). A child may also be considered the victim of domestic abuse, if violence has been perpetrated against their parent, guardian, or relative (Section 3 of the Domestic Abuse Act 2021).
Finally, the guidance notes that no distinction should be drawn between psychological abuse and physical abuse – both forms are equally valid under Appendix VDA.
How Is Evidence Considered under Appendix VDA?
There is no mandatory evidence that must be submitted with an application for ILR under Appendix VDA. All information and evidence that is submitted will be considered ‘in the round’, which means that the caseworker will conduct a holistic assessment of the evidence submitted with the application.
There is a slight difference in the standard to which evidence will be assessed, depending on whether the applicant is applying from within the UK or outside of the UK (as a victim of transnational marriage abandonment would).
For applications submitted within the UK, the assessment will be whether on the balance of probabilities (more likely than not), ‘based on the information and evidence available, the relationship broke down because of domestic abuse’.
For applications submitted outside the UK, the assessment differs slightly – the question of whether the relationship broke down because of domestic abuse will be assessed to a ‘reasonable degree of likelihood’.
It should be noted that disclosures or reports of domestic abuse or abandonment made by victims to family, organisations, or professionals abroad will be attributed with the same weight as those made within the UK.
Types of Evidence
The guidance sets out a list of the types of evidence which might be relied upon by an applicant, and discusses the factors which a caseworker should take into account when assessing that evidence. The list of evidence in the guidance is not exhaustive, and the guidance clearly states that ‘applicants can rely on any relevant evidence to support their application’.
Conclusive Evidence
The guidance identifies a limited number of forms of evidence that will be regarded as ‘conclusive’ proof that the applicant’s relationship broke down due to domestic abuse.
Examples of conclusive evidence include:
- Criminal conviction which relates to domestic abuse;
- Police caution relating to domestic abuse;
- Final order in a civil court (for example, non-molestation or occupation order) where a judge found that domestic abuse occurred. A final order may alternatively be ‘compelling’ evidence, if there was no finding of fact in relation to domestic abuse;
- Multi-agency risk assessment conference (MARAC) referral confirmed by any person who is a member of a MARAC, based on the evidence contained in the document;
- Charging decision from the CPS relating to domestic abuse.
Other Types of Evidence
The guidance goes on to discuss various types of non-conclusive evidence, and considers whether that evidence might be considered compelling, or not. Some examples of evidence include:
Letters From Social Services, or Welfare Officers Connected to HM Armed Forces
Letters from social services can be considered compelling evidence, provided that the letter confirms that the author has assessed the applicant themselves, and has the experience to consider them a victim of domestic abuse. The guidance also states that such letters should specify what support the applicant is being offered as a result of the domestic abuse or relationship breakdown.
Letters From Organisations Supporting Victims of Domestic Abuse (Confirming They Have Assessed the Applicant as a Victim of Domestic Abuse)
Similarly to above, letters from organisations supporting victims of domestic abuse can be compelling evidence, depending on the content of the letter itself. The guidance makes it clear that such letters should be written on the basis of a professional assessment, rather than applicants’ account.
Letter or Statement From an Independent Witness
The weight attributed to a statement from an independent witness will depend on whether the caseworker can verify that the author witnessed the incident first-hand, and whether they have any ‘personal stake’ in the case.
The guidance acknowledges that it may be difficult to prove that there is no relationship between the applicant and witness. Without corroborating evidence that there is no connection between them, the weight afforded to such a letter might be reduced.
Medical Report From a UK Hospital, GP, or Medical Professional Employed by HM Armed Forces.
Such a report can be considered compelling if it confirms that the applicant sustained injuries or conditions consistent with domestic abuse. Alternatively, the report might reveal a pattern of injuries or reports from the applicant of domestic abuse.
The weight attributed to this type of evidence will depend on the contents of the report. The guidance makes it clear that a medical report that simply reflects the applicant’s account will be less compelling, and that any insights from an experienced medical professional and the ‘timings of disclosures’ should be given weight.
What if No or Limited Evidence Can Be Provided?
The guidance acknowledges that some applicants will have very limited evidence available to them, and may only be able to rely on their own statement as evidence of the abuse sustained.
In that situation, the guidance states that consideration should be given to the reasons provided for the lack of documentary evidence, and that special attention should be paid to any reasons that relate to the abusive relationship or situation that the applicant was in.
If an applicant is only able to rely on their own statement, the guidance says that consideration should be given as to whether the applicant’s account is sufficient evidence of the abuse, where the statement is ‘reasonably detailed, consistent, and plausible’.
Factors That Will Be Considered When Assessing Evidence
The guidance acknowledges that victims of domestic abuse have suffered trauma and states that ‘the information and evidence they provide must be assessed with this in mind’.
Therefore, according to the guidance, factors such as the nature of the domestic abuse alleged, reasons given for any difficulties in obtaining or providing evidence, and the impact of the abuse on the applicant will be taken into account when assessing evidence.
For example, a victim may be less likely to report abuse to authorities where the abuse has related to the immigration status or custody of their children. Equally, a relationship may have broken down even where the victim and perpetrator still live at the same address – an applicant may be unable to move, due to fear for their children’s safety or a lack of access to safety and support.
Contact Our Immigration Barristers
It can be difficult to know how to appropriately evidence and explain domestic abuse or violence in an application for indefinite leave to remain under Appendix VDA. The type of evidence you may provide may vary significantly, depending on your individual circumstances.
For expert advice and assistance on applying for ILR under Appendix VDA or any other application, contact our immigration barristers in London on 0203 617 9173 or complete our enquiry form below.
