If you are in the UK on a spouse visa and you are splitting up from your husband, wife, civil partner or partner because of their domestic violence you may think that not only are you losing your partner but also your new friends, job and your adopted country. That is because if you separate from your spouse or partner you won't be eligible to remain in the UK on your current Spouse Visa. In this blog we look at your option of applying for leave to remain under the ILR domestic violence route so you can stay in the UK after your separation or divorce.
Indefinite Leave to Remain solicitors
Central London based OTS Solicitors are best placed to advise you on your ILR domestic violence application as specialists in Indefinite Leave to Remain and domestic violence and family. That means you get joined up family and immigration law advice from friendly and approachable solicitors who can secure injunction orders for you as well applying for Indefinite Leave to Remain.
Call us on 0203 959 9123 or complete the online enquiry form.
Separating from your partner and telling the Home Office
Whether you are the one who takes the decision to separate, or if it is your partner’s choice, you are under an obligation to let the Home Office know if you separate from your partner whilst you are in the UK on a Spouse Visa.
The Home Office is likely to cancel or curtail your UK Spouse Visa so you will then only have a limited amount of time to either remain in the UK or make an immigration application to enable you to continue to live in the UK.
Separating and legal advice
It is vital that you take legal advice if you are thinking of separating or have done so and the reason behind the decision to part is domestic violence. Specialist family and Indefinite Leave to Remain solicitors can advise you about:
• Getting help with the domestic violence – and the option of applying for family law injunction orders (called a non-molestation injunction order or ouster injunction order);
• Your options in relation to child care arrangements and whether you can take your children overseas to live without a court order or your partner’s consent;
• How to best negotiate a financial settlement or property agreement or child support;
Eligibility to apply for Indefinite Leave to Remain because of Domestic Violence
If you want to stay in the UK after entering on a Spouse Visa you may be eligible to do so if:
• You are still in the UK on a Spouse Visa or partner visa; and
• At the time of your last Spouse Visa or partner visa application you were in a relationship with your partner that was genuine; and
• The relationship only broke down during the period of the last visa; and
• Your relationship has broken down because of the domestic violence experienced by you from your partner (or experienced from a member of the family ); and
• The breakdown of your relationship is permanent.
If you think you are eligible to apply for Indefinite Leave to Remain on domestic violence grounds you may be anxious about whether you will meet all the standard eligibility criteria for an ILR application. The immigration Rules say that an applicant for ILR domestic violence doesn’t need to meet the standard Indefinite Leave to Remain eligibility requirements, namely:
• The financial requirement; or
• The English language test requirement; or
• The Life in the UK test.
The Home Office has therefore made it easier for you to apply for Indefinite Leave to Remain in the UK if you have been subjected to domestic violence and your relationship has ended as a result.
What does domestic violence mean in an ILR application?
When Spouse Visa holders are told that they could potentially apply for Indefinite Leave to Remain in the UK because they have experienced domestic violence they are often sceptical because, in their mind, they haven’t experienced domestic violence. That may be because:
• Their partner told them that the domestic violence was their fault , for example, if they had been a better partner there would have been no need to hit them; or
• In their country of origin the concept of domestic violence isn’t recognised as it is not thought that violence within a relationship is wrong; or
• They think that what they experienced wasn’t really domestic violence because they did not ‘break anything’ and it was just slapping , punching , pushing or shoving; or
• They did not call the police at the time of the domestic violence because they were too frightened or embarrassed to do so; or
• It isn’t domestic violence if your partner is just emotionally abusive and tells you that you are stupid or mental or coerces and controls you.
Indefinite Leave to Remain solicitors will tell you that in the UK the Home Office and the family court accept that the definition of domestic violence is wider than just physical violence and that domestic violence can affect you whether you are male or female, young or old or rich or poor.
The word ‘domestic violence’ can be a bit misleading to someone on a Spouse Visa who is leaving an abusive relationship. That is because in UK family and immigration law domestic violence is not only physical abuse. Domestic violence includes emotional, sexual or financial abuse or coercive and controlling behaviour.
Home Office definition of domestic violence
The Home Office defines domestic violence as:
‘Any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged sixteen or over who are, or have been, intimate partners or family members regardless of gender or sexuality’.
Therefore domestic violence can include psychological and emotional abuse, physical, or sexual violence and financial and emotional controlling and coercive behaviour.
In some families the domestic violence may not come from your partner or spouse. For example, your parents in law may control whether you are allowed to leave the family home or punish you if they do not think that you are behaving in the way they expect in your role as a spouse or partner.
The ILR application
If you decide to apply for Indefinite Leave to Remain based on domestic violence you will need to submit form SET DV together with your supporting paperwork.
Documents for Indefinite Leave to Remain application
When you apply for ILR because of domestic violence, it is often hard to prove domestic violence. That is why the Home Office do not impose a requirement that you lodge specific documents to establish the domestic violence in an Indefinite Leave to Remain application.
If you have been subjected to domestic violence it can be hard to prove that abuse occurred as normally there are no witnesses (or at least not ones who are willing to come forward) to say that they have seen the domestic violence.
Even if you have no evidence that you have been subjected to domestic violence it is still vital that you tell your family solicitor and your Indefinite Leave to Remain solicitors so they can:
• Help protect you if you are still at risk of domestic violence by applying for family law injunction orders;
• Help look at how information and supporting paperwork can be obtained , for example a doctor’s letter;
• Advise you on making an Indefinite Leave to Remain application because of the domestic violence that you have been subjected to.
In an ideal world if you are making an ILR application on domestic violence you would have:
• Evidence that your partner had been arrested , cautioned or convicted of assault, harassment or other domestic violence related offence against you ; or
• A family law ouster or non-molestation family injunction court order; or
• A child arrangements order or prohibited steps order; or
• A letter from a domestic violence agency , your counsellor , therapist , social worker, doctor or other relevant professional; or
• A medical report or notes; or
• Photographs of injuries sustained; or
• An account of the domestic violence and effect on you.
As we don’t live in an ideal world you probably won't have many of these pieces of evidence but a specialist family and Indefinite Leave to Remain solicitor can assess what information and supporting paperwork could be obtained to support your ILR case.
Assessing an ILR domestic violence application
• The amount of time that has elapsed since the domestic violence occurred and the reasons for any delay in applying for leave to remain; and
• The length of relationship between you and your partner; and
• The timing of when your ILR application.
Refusal of Indefinite Leave to Remain application
If the Home Office refuse your ILR application based on domestic violence then you don’t have a right of appeal other than on human rights grounds. You can however consider applying either for an administrative review or Judicial Review of the ILR refusal decision.
Indefinite Leave to Remain solicitors
London based OTS Solicitors are experts in ILR domestic violence applications, domestic violence and family. OTS Solicitors provide comprehensive family and immigration law advice from friendly and approachable specialist Indefinite Leave to Remain solicitors and injunction solicitors.
For help and advice call us on 0203 959 9123 or complete the online enquiry form.
For the best expert legal advice and outcome on your UK immigration application, contact OTS immigration solicitors on 0203 959 9123 or contact us online.
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Posted on: Wednesday, 26 February, 2020