Apply for ILR as a Victim of Domestic Abuse: Part 2

This is the second part of a practical guide to applying for ILR as a victim of domestic abuse. It will address frequently asked questions about the DVILR route. 

Please follow this link to Part 1 of this Practical Guide.

How will the Home Office assess whether my relationship “broke down as a result of domestic abuse”? 

The Home Office guidance states that “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.”

The case of Ishtiaq v Secretary of State for the Home Department [2007] EWCA Civ 386, which concerned the old rules, established that Home Office caseworkers should begin by applying the Home Office guidance. 

Page 22 of the Home Office guidance provides a table of different types of evidence and its corresponding value in supporting the contention that a relationship has broken down as a result of domestic abuse. This ranges from a criminal conviction for domestic violence, which is “conclusive” evidence, to a statement from the applicant which is “weak” evidence and will necessitate further enquiries by the caseworker. When making an application, applicants should consider whether they can adduce any of the following types of evidence:

• Evidence of a criminal conviction.
• Evidence of police cautions.
• A final order in a civil court for a non-molestation order or occupation order.
• A multi-agency risk assessment conference (MARAC) referral confirmed by any person who is a member of a MARAC.
• A charging decision.
• A domestic violence protection order.
• A forced marriage protection order.
• Prohibited steps orders or contact orders.
• A letter from social services or a welfare officer connected to HM Armed Forces confirming that the author has assessed the applicant and considers them a victim of domestic violence.
• A letter from an organisation that supports victims of domestic violence (including a refuge) confirming that they have assessed the applicant as being a victim of domestic violence – such letters should detail the support being provided.
• A letter or statement from an independent witness verifying that they witnessed the incident of domestic violence first hand and they have no vested interest in the case (e.g., they are not related)
• Evidence of an arrest.
• Ex parte orders (a decision made by a judge without requiring all the parties to be present)
• Interim orders.
• Undertaking to court.
• A police report of attendance at a domestic violence incident.
• A medical report from a UK hospital confirming injuries or condition consistent with domestic violence
• A medical report from a GP or medical professional confirming injuries or conditions consistent with domestic violence.

It should be noted that letters or statements from official sources, such as advice agencies, repeating the applicant’s account without confirming that the applicant has been assessed as, or is being treated as, the victim of domestic violence will be regarded as weak evidence, though such evidence must be considered in light of the rest of the evidence. Similarly, statements from the applicant will be regarded as weak evidence unless it is corroborated by stronger proof such as police reports or medical evidence.

Ishtiaq states that “if the applicant is unable to produce evidence in accordance with that guidance, it would seem to me that the caseworker should seek an explanation for his or her inability to do so. If the applicant provides a reasonable explanation for her inability to produce such evidence, then the caseworker should give the applicant the opportunity to produce such other relevant evidence as she wishes to produce.”

Caseworkers cannot infer that an applicant’s claim of domestic abuse is false simply because certain evidence has not been provided. Rather they must squarely confront reasons given for why evidence has not been adduced. This was confirmed in R (on the application of Suliman) v Secretary of State for the Home Department [2020] EWHC 326 (Admin), where it was held that the caseworker was required to deal with the reasons given by the Applicant as to why they had not told the police or medical authorities about an event of domestic abuse. In that case, the reasons given were the Applicant’s “own sense of shame; ‘cowardness’; his residual love for his wife despite her behaviour; and his fear of losing her or getting her into trouble.” 

The judge stated that “these explanations all strike me as being inherently plausible and the fairly typical response of an abused partner in a relationship. They provide at least an equally convincing explanation for why the Claimant said nothing at the time as the one reached by the Secretary of State, ie, that he had not been assaulted by his wife. Fairness required the Secretary of State to address it.”

What does “during the last period of limited leave as a partner, your relationship with that partner broke down” mean?

The Home Office guidance states that applicants must establish that the relationship “was subsisting at the start of the last grant of leave as a partner.”

Applicants should therefore show evidence of before and after the abuse in order to satisfy the Home Office that the abuse broke down within the specified period (ie, it broke down within the last period of leave).

What does “as a result of” mean?

The Home Office guidance states that “Applicants must establish that the relationship…broke down because of domestic violence.” This means there must be a causal link between domestic abuse and the relationship breaking down.

How much influence the abuse needed to have on the relationship breakdown is not specified in the Rules, guidance or case law. 

This point may therefore be tested in future cases. 

In practice, where it is established that domestic abuse occurred and the relationship has broken down, it is presumed that domestic abuse was the cause of the relationship breakdown. Only in exceptional circumstances is it likely the Home Office would accept that there was domestic abuse but refute that it was the cause of the relationship breaking down.

What does “domestic abuse” mean?

The Home Office guidance reflects the fact that “domestic abuse” takes many different forms, including psychological, physical, sexual, financial and emotional abuse. It is defined in the guidance as “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 of family members regardless of gender or sexuality.”

“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

“Coercive behaviour” is defined as:

• “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.”

These are non-exhaustive definitions.

For further information on evidencing a domestic abuse ILR application, please see our previous blog post.

Will I have to do a Life in the UK or English Language test as part of my DVILR application?

There is no requirement for applicants to do a Life in the UK or English Language test. The Home Office guidance confirms this: “The applicant does not need to demonstrate knowledge of language and life in the UK under the victims of domestic violence rules.” 

What is the average processing time for DVILR applications?

You’ll usually get a decision about your application within 6 months according to the government website. Please see our previous post on Home Office processing times.

If I am refused DVILR, do I have a right of appeal?

There is no automatic right of appeal as confirmed in the Home Office guidance: “An applicant who applied on or after 6 April 2015 will not have a right of appeal. Instead they may be able to have their decision reviewed under the administrative review process.” 

The relevant provision is contained in Appendix AR: Administrative Review of the Immigration Rules. AR3.1 provides that “Administrative review is only available where an eligible decision has been made.” 

The application for administrative review must be filed within 14 days of the decision from UKVI and costs £80 (which is refunded if the decision is reversed). You should receive a decision within 28 days. 

A right of appeal arises under s82(1)(b) of the Nationality, Immigration and Asylum Act 2002 where “the Secretary of State has decided to refuse a human rights claim”. Under s113(1), a human rights claim is “a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom or to refuse him entry into the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998.”

Needless to say, many people making a DVILR application would also have a legitimate human rights claim, for example if they fear they would be subject to violent treatment in their home country (Article 3) or they have substantial family ties in the UK (Article 8). However, raising these points on your DVILR application (for example, in your witness statement) or even using the words “I hereby make an Article 8 claim” is not enough to entitle you to a right of appeal. MY (Pakistan) [2021] EWCA Civ 1500 established that the Secretary of State is entitled to ignore human rights claims made on DVILR applications under the Secretary of State’s “one-claim-at-a-time policy”. 

This means that if the Secretary of State simply does not engage with the human rights claim on a DVILR application, she is not regarded in law as having refused the human rights claim – meaning that no right of appeal arises. Instead she is regarded in law as having deferred reaching a decision until the human rights claim is raised via the proper mechanism (ie, a specified human rights application form). The Court of Appeal noted that the Secretary of State’s “one-claim-at-a-time policy” may be challenged on public law grounds in future. It might be appropriate to make an urgent Subject Access Request to the Home Office to uncover whether any parts of the human rights claim were considered. If they were, then you will have the right of appeal afforded under s82(1)(b). 

The state of affairs following MY (Pakistan) will put some applicants in a difficult position where you must choose between making a human rights application or a DVILR application. You cannot make both simultaneously. Whereas your first application to the Home Office will extend your leave to remain under section 3C, any subsequent applications will not. For example, if your first application (for example, your DVILR application) is refused, you will become an overstayer and therefore subject to the Home Office’s hostile environment policy. Your leave to remain would not be extended by section 3C when you made a second application (in this instance, the human rights application).

In view of this unhappy situation, it is therefore vital to choose the application that best suits your situation. If you are in this position, it is highly advisable to seek advice on the merits of the different types of application you could make. 

Contact our Immigration Barristers

For expert advice and assistance on indefinite leave to remain as a victim of domestic abuse, contact our personal immigration barristers on 0203 617 9173 or complete our enquiry form below.