Domestic Violence – (The Immigration Aspect)

1. Introduction

Domestic violence is not a thing of the past; unfortunately there are thousands of cases of domestic abuses where people are victimised by the more dominant counterpart of the marriage or relationship. The reasons might be financial, social, cultural, moral, religious or any thing but these factors do have the capability to turn an exciting phase of one`s life into a lifetime regret. Although these incidents are dealt with very strongly and comprehensively in the UK but the number of these incidents are still on the rise.

The home office has provided an option to those victims of domestic violence who leave their countries of origin to live with their partners / spouses in the UK, to make an application for continued legal residence in the UK. It would be appropriate to discuss all the aspects of domestic violence under the following headings:

2. What is Domestic Violence?

Definition of Domestic Violence:

“Any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults who are or have been intimate partners or family members regardless of gender or sexuality”.

Definition of Injury (legal):

“Any harm done to a person by the acts or omissions of another.”

The above-definitions serve as guidance to the Home office in order to assess whether there has been domestic violence against the applicant or there are sufficient reasons to believe that the incidents occurred constitute domestic violence.

3. Who can apply?

Only following persons can make an application for settlement as victims of domestic violence:

1. Spouses / unmarried partner / Civil partner of some one present and settled in the UK
2. Spouses / unmarried partner / Civil partner of an EEA national exercising treaty rights in the UK

4. Who cannot apply?

The following persons are not entitled to make an application for settlement even if they can establish beyond any doubt that they have been victims of domestic violence:

1. Fiance / proposed civil partners of some one present and settled in the UK
2. Fiance / proposed civil partners of EEA nationals exercising treaty rights in the UK
3. Spouses / unmarried partner / Civil partner of a person having limited leave to remain in the UK
4. Spouse / Unmarried partner / Civil partner of a person seeking asylum in the UK

5. The remedy available to victims of domestic violence

The remedy available to the victim of domestic violence who is a spouse / unmarried partner / civil partner of some one present and settled in the UK is settlement. If he / she fulfils all the criteria of the immigration rules by providing the required documentary evidences and complying with other regulations, she would be given Indefinite leave to remain in the UK.

While, in case of the victim of domestic violence who is a spouse / unmarried partner / civil partner of a person exercising treaty rights in the UK, he / she is will be allowed to retain his / her right of residence in the UK. And On completion of a total of 5 years of his /her legal residence (under the EEA regulations) in the UK, the applicant would be able to make an application for permanent residence in the UK.

6. Spouses / Unmarried Partner / Civil Partner of persons settled in the UK

In this case, the applicant must have been admitted or given an extension of stay for a period of 24 months as the spouse / unmarried partner / civil partner of a person settled in the UK and their relationship must have subsisted for at least the initial period of the applicant`s stay as spouse / unmarried partner / civil partner.

In addition to the above following factors must also be noted:

• The applicant should no longer be living with his / her settled spouse
• The domestic violence must have occurred during the 2 year`s probationary period and while marriage was subsisting
• The domestic violence was the only or main reason for the breakdown of the marriage / relationship
• The applicant does not require satisfying the Home office that he / she can maintain and accommodate herself without recourse to public funds
• The applicant can apply together with any of his / her dependants who are not already British Citizens
• The applicant must provide good documentary evidences to establish that he is a victim of domestic violence like, court order or conviction against his / her settled spouse / partner, an injunction, non molestation order, police cautions, medical report, letter from social services department and the like
• An application can also be brought against the domestic violence incurred by a family member of the settled spouse / partner from whom the spouse do not offer any protection

7. Spouses of EEA nationals exercising treaty rights in the UK

The applicant must either have got resident card in line with his / her EEA national spouse / partner who is exercising treaty rights in the UK or can provide evidences that he / she has resided together with his / her EEA national partner / spouse who is exercising treaty rights in the UK.

In addition to the above following factors must also be noted:

• The applicant should no longer be living with his / her EEA national spouse / partner.
• The domestic violence must have occurred during the subsistence of their relationship and while the EEA was exercising treaty rights.
• The domestic violence was the only or main reason for the breakdown of the marriage / relationship.
• The applicant has to qualify as a worker or self employed person or a self-sufficient person to qualify enjoying retention of his right of residence.
• If the applicant is a student the n he / she will not qualify unless he / she is a student with sufficient resources to be self-sufficient.
• The applicant can apply together with any of his / her dependants who are not already British Citizens or EEA nationals.
• The applicant must provide good documentary evidences to establish that he is a victim of domestic violence like, court order or conviction against his / her settled spouse / partner, an injunction, non molestation order, police cautions, medical report, letter from social services department and the like.

8. Procedure of Naturalization of the victims of domestic violence

In case of Spouse / civil partner / unmarried partner of a person present and settled in the UK, the applicant can become eligible to apply for naturalization on completing 5 years of legal residence in the UK provided they have spent the last year without any time limitations on their stay in the UK. A successful application made on the basis of domestic violence would give the applicant and his / her dependants Indefinite leave to remain in the UK and time would start running from their first date of legal entry to the UK, to five years in total provided they have waited for at least 12 months after getting ILR. They are however, also requried to satisfy the other requirements of naturalization application in order to be naturalized as British Citizens.

While in case of spouse / civil partner / unmarried partner of an EEA national exercising treaty rights in the UK, the applicant become eligible to apply for naturalization on completing 6 years of legal residence in the UK provided they have spent the last year without any time limitations on their stay in the UK. In this case, the applicants would not be given permanent residency straightforward on making a successful claim of domestic violence; they would in fact be permitted to retain their right of residence in the UK. And on completing 5 years (starting from the day they commenced their relationship with their EEA national spouse or partner exercising treaty rights in the UK) they can make an application for permanent residence in the UK. The applicant would have to wait for another year after getting permanent residence in order to become eligible to make an application for naturalization. They are however, also requried to satisfy the other requirements of naturalization application in order to be naturalized as British Citizens.

Conclusion

Although the remedy provided to the two categories of applicants are different but the intention of the Home office is to convey the message to the victims of domestic violence that they would not be left alone, if their partners or spouses chooses to make use of force / threatening behaviour / other non-acceptable acts / omissions amounting to domestic violence.

However, all cases are not the same and straightforward and an independent professional advice must be sought before making an application of this kind or one may risk losing a right to stay in the UK for an indefinite period of time.