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Domestic Violence and United Kingdom Immigration Laws

If you are an emigrant to the United Kingdom who is in a relationship where you suffer various forms of abuse, the Home Office through its immigration system can help protect you as a married or unmarried partner, especially if you have children.

It takes courage and resilience for you to survive such abusive relationships and that is why the Home Office noted that it is not just enough to offer protection. What if the relationship collapse is there a scheme for permanent residence? What of those individuals who are refugees? Is there any hope for financial assistance for the sufferer who needs money to seek legal advice? This is what the article addresses.

Citizens of Non-European Union countries married to a British National.

Areas in the Immigration Rules that concerns permanent residence application in the United Kingdom as it relates to a collapse of a relationship due to domestic violence are contained as follows:

  • If you were issued entry clearance as a spouse, civil partner, unmarried or same-sex partner in accordance to Part 8 of the Immigration Rules, paragraphs 289A - 289D will apply to you.
  • If you were issued entry clearance as a partner in accordance to Appendix FM of the Immigration rules, paragraphs DVILR.1.1 - D - DVILR.1.3 will apply to you.

The rules as contained here do not cover those individuals coming to the United Kingdom as partners to a person holding humanitarian protection or refugee leave; or those who hold leave to enter/remain as a fiancé (e)/proposed civil partner. This category is for individuals whose partner (sponsor) is a British National or is a permanent resident.

In a situation where by your application in accordance to the rules is a success, you (the domestic violence sufferer) will be usually issued Indefinite Leave to Remain (ILR).

What is Domestic Violence?

Domestic Violence is said to be any occurrence or order of occurrences that depicts the use of force or threats as well as a controlling, violent or abusive behaviour against individuals aged 16 years and above who were once romantic partners or family members notwithstanding the sexuality of the individual of gender.

In order for the Home Office to uphold a case as described above, you will be required to make available proof of domestic violence including police reports, medical reports and court orders (such as: Non-Molestation Order or Occupation Order).

If you have children who are below the age of 18 years of age you are entitled to include them in your application for leave in accordance to domestic violence rules. More so, If you have children who are more than 18 years of age as at the time in which the application was made, they can also apply for Indefinite Leave to Remain (ILR) as long as:

  • They were initially issued limited leave with the aim of permanent residence in accordance to paragraph 302 or Appendix FM; or
  • Is not living independently; and
  • Have not started an independent family unit.

Citizens of Non-European Union countries in a relationship with European Economic Area (EEA) national exercising Treaty rights in the United Kingdom.

Only if you as a Non-European Union national have family link with a European Union national can you gain rights in accordance to the European Union laws on free movement. However, if you are a sufferer of domestic violence and a Non-European Union citizen, this might pose a problem to you as it raises the question that; does a non-European Union citizen seeking to remain in the United Kingdom have to remain married to the European Union National?

The Home Office has long been of the opinion that non-European Union nationals may still stay in the same country along with the European Union Spouse after their break-up. If they get divorced, the sufferer can maintain the right to remain in the European Union country if:

  • They were married for at least 3 years of which one of the years was spent in a European Union member state. This is contained in the Citizens' Rights Directive, art 13 (2)(a)
  • They have responsibility of a child who is a European Union citizen. Contained in the Citizens' Rights Directive, art 13 (2)(a)
  • They have faced tough situations as a sufferer of domestic violence. Contained in the Citizens' Rights Directive, art 13 (2)(a)

Recently in a case between the Secretary of State of the Home Department and NA (Aire Centre intervening) [2016]. It was contemplated if a non-European Union national who is a sufferer of domestic violence, and also a resident in a member state of the European Union with a European Union national is permitted to reside in the country if the divorce proceedings were set in motion after the European Union national has vacated the European Union member state.

In this case, a citizen of Pakistan who was married to a dual citizen (Pakistani/German) was a sufferer of domestic violence resided in the United Kingdom. She had two daughters who were citizens of Germany who have been resided in the United Kingdom and have no ties to Germany except their citizenship. The Divorce proceedings were set in motion by the woman when her husband had left the United Kingdom.

The case was transferred by the Court of Appeal to the European Court of Justice (ECJ) who saw the woman (sufferer of domestic violence) to have lost her right to remain in the United Kingdom because the divorce proceedings were not completed before the departure of the European Union citizen from the country.

This is a very obvious and unacceptable misrepresentation of justice which gives non-European sufferers of domestic violence no other option than to either remain in the inhuman relationship or be deported from the country. However in this case, the sufferer was only entitled to reside on the grounds of her responsibility for the children and not as a sufferer of domestic violence; bringing to life that if she had no children, she wouldn't have been protected.

This decision was criticized because it goes against the Istanbul Convention (Council of Europe Convention) on prevention and war against violence against women and domestic violence. This convention endorsed by many European Union member states (but not yet signed by the European Union) does not state that the abuser must be in the country where the sufferer is resident for it to be applicable.

Partners to a Person Holding Humanitarian Protection or a Refugee

Refugees are now entitled to make applications for Indefinite Leave to Remain (ILR) in accordance to the domestic violence laws. In a case between A" and Secretary of State for the UKBA [2016] CSIH 38, it was noted that the exclusion of spouses of refugees from the domestic violence concession (DVC) [Section DVILR of Immigration Law] recognizes a distinction against the spouses of refugees which goes against Article 14 of the ECHR.

Although the UKBA appeals this decision, it is anticipated that in due course spouses of refugees who are sufferers of domestic violence be treated the same as non-European Union citizens married to a United Kingdom National.

Finally, cases concerning domestic violence are complicated; that is why sufferers of domestic violence who intend to utilize its provisions would require advice from a legal representative. It is advised that you seek the help of professional solicitors as we are in such cases. So do not hesitate to contact us for relevant information and representation as your safety and that of your children is our primary interest.

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