Spouse Visas and Domestic Violence – a Route to Indefinite Leave to Remain

No one likes to think that their relationship might break down. Least of all when you have travelled from overseas to live with your husband, wife or partner in the UK on a spouse visa. However, immigration solicitors acknowledge that it isn’t surprising that some relationships do end, partially because of the stresses of having lived apart during the immigration application process or simply because it can be difficult to make a relationship work in a country that is new to you, with all the additional pressures that brings.

If you are in the UK on a spouse visa you may think that if your relationship does end then you will have to leave the UK. However, Spouse Visa Solicitors say that if you are in the UK on a spouse visa and you have experienced domestic violence there is a route to secure indefinite leave to remain in the UK if your relationship ends. This route is available for those who don’t meet the ILR residence requirement.

UK Online and London Based Immigration Lawyers and Spouse Visa Solicitors

For specialist advice on spouse visas, indefinite leave to remain or any aspect of immigration law call the expert London immigration lawyers at OTS Solicitors on 0203 959 9123 or contact us online.

New guidance for Home Office officials on spouse visas and domestic violence

This article was prompted by the Home Office issuing updated guidance for its Home Office caseworkers on how to assess an application for indefinite leave to remain by an applicant in the UK on a spouse visa who is seeking ILR based on the domestic violence route concession.

It is important for Spouse Visa Solicitors to keep up to date with Home Office guidance to caseworkers as however compelling a case you may have for indefinite leave to remain using the domestic violence concession your application needs to be prepared taking into account the latest available Home Office guidance.

The spouse visa to indefinite leave to remain route for victims of domestic violence

If your relationship ends and you are in the UK on a spouse visa then you have a number of options:

• Leave the UK.
• Apply to stay in the UK based on the fact that you have a child – there are specific eligibility criteria for this route.
• Switch from a spouse visa to a different type of visa, such as the skilled worker visa.
• Apply for indefinite leave to remain – but you will need to meet the five-year residence requirement and the general eligibility criteria.
• If your relationship has broken down because of domestic violence apply for indefinite leave to remain using the domestic violence concession. This way, you don’t have to meet the five-year residence requirement.

What amounts to domestic violence for the spouse visa concession

Time and again, Spouse Visa Solicitors meet people who have experienced domestic violence but have not heard about the route or who don’t think that the indefinite leave to remain concession is relevant to them.

One of the most common misconceptions about the indefinite leave to remain concession is the definition of ‘domestic violence’. That is because most spouse visa holders assume that domestic violence is defined in the same way as in their home country. That isn’t necessarily the case. It all depends on where you are from.

The words ‘domestic violence’ also implies there needs to have been physical injury but again that isn’t the case. The words ‘domestic abuse’ may be a better title.

The latest Home Office guidance contains the following information on domestic violence and domestic abuse:

• Domestic violence or domestic abuse is 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, partners or family members.
• Domestic violence or domestic abuse can occur regardless of gender or sexuality. That means you can make an application using this route if you are in a same sex relationship that has broken down because of domestic violence. You can also apply if you are a husband, wife or partner in the UK on a spouse visa, partner visa or family visa.
• Domestic abuse takes many forms including physical, psychological, emotional ,sexual, or financial abuse or coercive and controlling behaviour.
• Controlling behaviour is defined as acts that make the spouse visa holder subordinate or dependent on their partner through social isolation or through the exploitation of their finances or by depriving them of independence and regulating everyday behaviour.
• Coercive behaviour is defined as an act or a series of assaults, threats, humiliation and intimidation or other abuse that is used with to harm, punish, or frighten.
• When assessing a spouse visa holder’s application for indefinite leave to remain no distinction should be made between mental or emotional abuse and physical abuse as these are both forms of domestic abuse.
• An applicant for indefinite leave to remain using the domestic violence concession does not have to have applied to the family court for a non-molestation order or occupation order or asked the police for protection but they do need evidence in support of their claim.

Evidence in support of an indefinite leave to remain application using the domestic violence route

The Home Office guidance sets out in tabular form the types of domestic violence evidence that Home Office officials should consider and the weight to be placed on the evidence. For example:

• A criminal conviction for domestic violence should hold conclusive weight.
• An occupation or non-molestation injunction order with findings of fact of domestic violence should be conclusive evidence whereas an injunction order without findings is of strong weight.
• A letter or statement from an independent witness who saw the domestic violence or domestic abuse carries strong weight.
• A letter from a doctor confirming injuries consistent with domestic violence should hold moderate weight.

What happens if the Home Office refuses an indefinite leave to remain domestic violence concession application?

If the Home Office refuses an application for indefinite leave to remain based on domestic violence the Home Office may decide to curtail your spouse visa. This means the end date of your spouse visa will be brought forward so your period of entry clearance in the UK is reduced. If you stay beyond the end date of your curtailed visa you are classed as an ‘overstayer’ unless you have a new pending Home Office application or an appeal.

The decision to curtail your spouse visa can be made by Home Office officials because if your relationship is at an end, you no longer meet the eligibility criteria for a spouse visa or family visa. Spouse Visa Solicitors advise that you may be able to appeal the decision or you may have the option of applying for a different type of visa. The vital thing is that you get expert legal advice to give your indefinite leave to remain application the best chance of success and, if you are unfortunate enough to have your application refused, that you get urgent immigration appeal advice so you can understand your best immigration options.

UK Online and London Based Immigration Lawyers and Spouse Visa Solicitors 

For advice on spouse visas and indefinite leave to remain call the expert Spouse Visa Solicitors at OTS Solicitors on 0203 959 9123 or contact us online.