Applying for Indefinite Leave to Remain (ILR) as a Victim of Domestic Violence or Abuse
The collaboration, campaigning and strategic litigation brought by a coalition of actors supporting victims of domestic violence, led to the landmark ruling of AM v SSHD [2022] EWHC 2591 (Admin), which found that the previous Immigration Rules relating to victims of domestic violence were unlawful as they discriminated against victims outside of the UK.
Following this High Court decision, as part of recent changes to the Immigration Rules, the Home Office introduced Appendix Victim of Domestic Abuse (‘Appendix VDA’) and updated the associated guidance, which came into effect on 31 January 2024. This new appendix enables victims of domestic abuse who have been abandoned overseas to apply for settlement from outside the UK.
This three-part series will provide an overview of the different applications for indefinite leave that can be made as a victim of domestic violence. This first article will look at the updated requirements for victims of domestic violence to apply for indefinite leave to remain from within the UK. The second article will address victims of domestic violence applying for settlement from outside the UK. The final article will consider the position for EU, other EEA and Swiss citizens and family members, pursuant to Appendix EU.
Overview of Requirements for Indefinite Leave to Remain (ILR) as a Victim of Domestic Violence or Abuse
In order to apply for indefinite leave to remain as a victim of domestic violence or domestic abuse from within in the UK, an applicant must, pursuant to Appendix VDA, meet the following requirements:
- Validity requirements;
- Suitability requirements; and,
- Eligibility and Relationship requirements.
These will be addressed in turn below.
Validity Requirements for ILR as a Victim of Domestic Violence or Abuse
In order to make a valid application for indefinite leave to remain under Appendix VDA, the correct online application form should be used. Please note that the form to be used by a victim of domestic abuse, and their child if applying at the same time, is different from the form for a child of a victim of domestic abuse who is not applying with their parent.
The validity requirements are similar to those for other applications: the application fee must be paid, unless a fee-waiver has been granted, biometrics should be provided and a copy of the applicant’s passport or other identity document which establishes their identity and nationality should be provided, unless excused or an exception applies.
An application that does not meet these requirements may be rejected as invalid. Please note that discretion can be exercised to treat an application as valid even if an applicant has not provided a passport or other document.
Suitability Requirements for ILR as a Victim of Domestic Violence or Abuse
The applicant must not fall for refusal under Part 9: grounds for refusal.
The Home Office guidance specifies that due to the importance of safeguarding vulnerable victims, the suitability guidance on each of the grounds of refusal that may apply should be considered. Only issues that have arisen since a last grant of permission should be considered. Where an applicant does not fall for refusal under criminality grounds, criminal convictions related to domestic abuse experienced must not be considered in an assessment of whether an applicant’s presence is not conducive to the public good.
Particular regard should be had to where the possible grounds for refusal directly relate to, or are connected to domestic abuse. Discretionary grounds may not be applied where an applicant’s ability to meet the requirement is impacted by the domestic abuse they experienced.
Paragraph 9.8.4.(a) of Part 9, states that a person will be treated as having previously breached immigration laws, if when at least 18 years old, they overstayed their permission, breached a condition attached to their leave in the UK and further leave was not granted, were/are an illegal entrant and/or used deception in relation to an application. Please note that paragraph 9.8.4.(a) does not apply to applications made under Appendix VDA. This is because passport and immigration documents may be controlled by the abuser and the victim may be unaware of their status.
Eligibility and Relationship Requirements for ILR as a Victim of Domestic Violence or Abuse
In an application for indefinite leave to remain as a victim of domestic violence or domestic abuse, the applicant must have, or have last been granted permission as either:
- A partner under Appendix FM of a person who is a British citizen, settled in the UK or with settled or pre-settled status under the EU Settlement Scheme;
- A partner under Appendix EU with limited leave to enter as a family member, as a joining family member or as a family member with a retained right of residence;
- A partner under Appendix FM, Part 11 of Appendix Family Reunion (Protection) of a person with permissions as a refugee;
- A partner of a person present and settled in the UK under paragraph 285 or 295E of Part 8;
- A victim of domestic abuse under Appendix FM;
- A partner under Appendix Armed Forces or Part 7 of a British citizen or relevant member of HM Forces;
- Leave outside the rules granted under the Migrant Victims of Domestic Abuse concession and before that were last granted permission as above.
Partner includes spouses, civil partners and unmarried partners but not fiancé(e)s nor proposed civil partners.
An applicant does not need to have valid permission in the UK, if they previously had permission as specified above, prior to the relationship breaking down as a result of domestic abuse. Preventing a victim of domestic abuse from applying for leave may be part of abusive behaviour experienced by a victim.
Individuals who have not held leave as above but last held leave under the EU Settlement Scheme cannot apply under Appendix VDA and should consider applying under Appendix EU, as will be addressed in the final article in this series. Individuals in the UK who have never had leave as specified above, may be able to make an application on the basis of their family and private life under Article 8 of the European Convention on Human Rights or for leave outside the rules.
The relationship between the applicant and their partner must have broken down permanently as a result of domestic abuse which they have been subjected to by their partner or by a directly related family member, such as in-laws or stepfamily members, or alternatively, if the abuser is a partner or family member who is abusing another family member in the same household.
Domestic abuse is defined in the Domestic Abuse Act 2021. It involves any single incident or pattern of conduct where someone’s behaviour towards another is abusive, and where the people involved are aged 16 or over and are, or have been, personally connected to each other. Abuse can be:
- Psychological;
- Physical;
- Sexual;
- Financial;
- Emotional;
- Violence;
- Threatening;
- Controlling;
- Coercive behaviour.
The evidence required in domestic violence applications was previously addressed in this article. A new article which defines domestic abuse in more detail and refers to the updated guidance will be published soon.
Child of a Victim of Domestic Abuse
The child of a victim of domestic abuse can also apply for leave under this appendix. They will need to meet the following requirements:
- Relationship requirement;
- Care requirement; and,
- Age and independent life requirements.
These requirements will be addressed in detail in a future article.
A child who is over 18 years old must meet the English language requirement and Knowledge of Life in the UK requirement, unless an exemption applies.
The adequate maintenance and accommodation requirement must also be met.
Applying for Indefinite Leave to Remain (ILR) as a Victim of Domestic Violence or Abuse: Form, Fees and Time Frames
The current fee for an application for ILR as a victim of domestic abuse is £2,885, unless a fee-waiver applies. Please note that these fees regularly change. There would be no Immigration Health Surcharge. The current processing time for such applications is 6 months. Please note that processing times can change and applications can be decided in more or less time.
Decision on an Application for ILR under Appendix VDA
Where the requirements detailed above are met and the application is successful, the applicant will be granted indefinite leave to remain in the UK.
The refusal of an application made pursuant to Appendix VDA can be challenged by administrative review.
Contact Our Immigration Barristers
For expert advice and assistance in relation to applying for indefinite leave to remain as a victim of domestic violence or any other UK immigration applications, contact our immigration barristers in London on 0203 617 9173 or complete our enquiry form below.
