Indefinite Leave to remain as a victim of domestic abuse
Section DVILR – E-DVILR of Appendix FM to the Immigration Rules sets out the requirements that an applicant must meet in order for an application for indefinite leave to remain as a victim of domestic abuse to be granted.
This blog post will explore the definition of domestic abuse, appropriate evidence that may be submitted with an application and will then go on to explore the scope of section DVILR. Finally, we will consider how the Statement of Changes published on 11 December 2018 has affected this route to settlement.
What types of behaviour constitute domestic abuse?
From the Home Office guidance, it is clear that the Home Office accepts that a wide range of behaviour falls under the definition of domestic abuse. They accept that abuse often goes beyond merely physical violence:
“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.”
What kind of evidence do the Immigration Rules require?
Section DVILR – E-DVILR of the Immigration Rules lacks depth and it can therefore be hard to determine what precisely is needed. Evidence that is submitted will be assessed by a caseworker who will determine on the balance of probabilities if the relationship has permanently broken down due to domestic violence. The Home Office guidance provides useful information on what evidence may be probative in an application.
This guidance includes a table of evidence that shows how the evidence is weighted and how a level of strength is attached to each piece of evidence. For instance, a criminal conviction which relates to domestic violence is proof that the domestic violence occurred and is considered conclusive evidence. A statement by the Applicant is considered weak, as the Home Office believe that more objective information is required.
The scope of Section DVILR
Under the existing Immigration Rules the eligibility requirements of Section E-DVILR make it clear that only those who are the spouse or an unmarried partner of a British citizen or a person settled in the UK can apply. This is further reinforced by the guidance, that states:
“This guidance does not include those whose leave was given as the partner of a refugee or recipient of humanitarian protection who was not settled at the time of the grant of leave.”
Currently those married to persons with refugee status or those who were fiances cannot apply for indefinite leave to remain as a victim of domestic abuse. Those with other types of leave in the UK could have been left in a precarious situation.
Prior to the Statement of Changes, this law was discriminatory in nature as it favoured a narrow section of society, particularly spouses of British citizens and settled people. It left a clear gap.
What does case law tell us?
A v Secretary of State for the Home Department [2016] CSIH 38 explored this notion of discrimination further. It is important to note that this decision was made in the Court of Session in Scotland.
‘A’ was a Ugandan national, married to a person with refugee status. She entered the UK on a family reunion visa, which is dependant upon her intention to continue to live as the spouse of the refugee. After her relationship broke down due to domestic violence, she was left in an uncertain situation. In this case, ‘A’ argued successfully at appeal in the Inner House of the Court of Session that the Immigration Rules discriminated against her. It was determined that:
“…it seems that no thought was given to the position of the spouses of refugees, who, until 2005, would have been entitled to seek to avail themselves of the concession…The effect on them is not an informed choice made by government upon due consideration, but appears to be an unintended by product of the changes introduced in 2005.”
– at Paragraph 79 & 80
It is clear from this that the SSHD did not have any justification in drawing this distinction. They also failed to have regard to the effect that this change may on individuals when the 2005 changes were made. The reality was that many individuals, often women, may have faced potential deportation.
Recent Developments
A v Secretary of State for the Home Department has had lasting implications on broadening the scope of paragraph DVILR and the impact of the decision can now be seen.
The Statement of Changes to the Immigration Rules published on 11 December 2018 broadened the scope. When the changes come into effect section E-DVILR.1.2 will now read:
“The applicant’s first grant of limited leave under this Appendix must have been as a partner (other than a fiancé(e) or proposed civil partner) of a British Citizen, a person settled in the UK, or a person with refugee leave…”
These changes will take effect from 10 January 2019. All previous references to ‘domestic violence’ in Appendix FM to the Immigration Rules will be updated to ‘domestic abuse’, representing a clear move towards a more comprehensive definition that recognises that domestic abuse does not necessarily include violence.
Contact our Immigration Barristers
For expert advice and assistance regarding your application for Indefinite Leave to remain as a victim of domestic abuse, contact our immigration barristers in London on 0203 617 9173 or via our enquiry form below.
