Immigration rules: The Domestic Violence concession 05.02.08
In 1999, the Government introduced a concession for victims of domestic violence, allowing them to apply to remain in the UK permanently, but this was limited to only those who entered or stayed in the UK on the basis of marriage or relationship to a person who is a British national or settled in the country, and subject to a probationary period. In 2002, the Government incorporated this concession into the Immigration Rules , which means that applicants under the Rule now have a right of appeal if their initial application is refused.
Women subject to the two-year probationary period, who subsequently experience domestic violence causing their relationship to break down during this period, should therefore seek expert legal advice if they want to apply to the Border and Immigration Agency (which replaced the Immigration and Nationality Directorate) for leave to remain in the UK under the Domestic Violence Rule.
Application for leave to remain in UK under Domestic Violence Rule
Their application must show that they have been subject to the domestic violence occurring during the probationary period whilst the marriage or relationship was subsisting, and must include ‘satisfactory evidence’ that domestic violence has taken place. Satisfactory evidence includes one of the following:
- An injunction, non-molestation order or other protection order against the sponsor (other than an ex-parte or interim order); or
- A relevant court conviction against the sponsor; or
- Full details of a relevant police caution issued against the sponsor.
If one of the above pieces of evidence is not available, at least two or more of the following is acceptable:
- A medical report from a hospital doctor confirming that the applicant has injuries consistent with being the victim of domestic violence;
- A letter from a GP who has examined the applicant and is satisfied they have injuries consistent with being the victim of domestic violence;
- A undertaking given to a court that the perpetrator of the violence will not approach the applicant who is the victim of violence;
- A police report confirming attendance at the home of the applicant as a result of domestic violence;
- A letter from social services confirming its involvement in connection with domestic violence; or
- A letter of support or report from a women's refuge.
Government has made a commitment that the BIA will fast track applications for leave to remain under the domestic violence concession. Once leave to remain has been granted women experiencing domestic violence can have recourse to public funds in the usual way.
How long does the application take?
Until the application has been accepted, women experiencing domestic violence have no access to public funds. In reality it can take time for a woman to find expert legal representation, for the advisor to gather evidence in support of the application and submit it, before the fast tracking procedure begins. Access to expert legal representation on immigration issues in some areas is also more difficult since Government introduced proposals to limit the time spent on such cases and immigration / asylum legal services funding.
Applications from women whose cases have been prepared poorly, or whose applications have been wrongly decided or fall outside of the Rules may only be successful on appeal. In reality therefore applying under the Domestic Violence Rule is likely to take longer than 8-weeks, even if fast tracking procedures are successful.
New rules from 2nd April 2007 mean that most applicants for indefinite leave to remain now have to show they have sufficient knowledge of English and of "life in the UK" in addition to meeting usual requirements. However, those who apply under the Domestic Violence rule do not have to fulfil these new requirements.
A new application form has been introduced for use in domestic violence applications (SET (DV)) Although more evidence is requested than previously, the rules remain the same, and the new forms and faster decision making should improve a woman's position.
Women who are not eligible to apply under the Domestic Violence Rule
Many women experiencing domestic violence may not be eligible to apply under the Domestic Violence Rule as outlined above, including women considered to be ‘overstayers’ and therefore outside of the probationary period, asylum seekers, women who are dependents of students or workers, or women here temporarily in their own right. Many of these women will have children who are British citizens.
However it may be possible to make applications to the Local Authority, who have the power in some circumstances, to assist women experiencing domestic violence if they are particularly vulnerable (under Community Care legislation), destitute with additional special needs (under the National Assistance Act 1948) or women with children ‘in need’ or ‘at risk of significant harm’ (under the Children Act).
The National Asylum Support Service (NASS) provides support to destitute asylum seekers whilst their claim for asylum is under consideration. Where a woman has an ongoing claim for asylum or an outstanding appeal she may be eligible to apply for NASS support. Women who are subject to domestic violence and who are already in receipt of support from NASS will continue to be supported by NASS.
1. Immigration Rules in 2002 at HC 395, para 289A.
2. Where a prosecution is pending against the sponsor the applicant may be granted further periods of 6 months limited leave to remain, subject to the same conditions, until the outcome of the criminal prosecution is known. Where a hearing seeking an injunction, non-molestation order or other protection order is pending, a decision on the application will be delayed pending the outcome of that hearing.