Paragraph 289A, Part 6 of Appendix Armed Forces and section DVILR of Appendix FM of the Immigration Rules allow those who have leave in the UK as the partner of someone with the right of permanent residence and whose relationship has genuinely broken down, because of domestic violence, during their probationary period of leave, to be granted indefinite leave to remain.

To qualify for indefinite leave to remain as a victim of domestic violence  the applicant must meet the requirements set out in Part 8 of the Immigration Rules or Appendix FM or Appendix Armed Forces to those Rules.

Documentary evidence as set out below  is required  from an applicant  in order  to support an application for indefinite leave to remain:

 

• Evidence of previous cohabitation with the partner

• Evidence of domestic violence

• Evidence of relationship with the partner

• Evidence of destitution( where relevant)

 

DEFINITION OF DOMESTIC VIOLENCE

 

The government introduced a new definition of domestic violence from 31 March 2013. The definition of domestic violence and abuse is:

 

Any incident or pattern of incidents controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality – this can include, but is not limited to, the following types of abuse:

 

• psychological

• physical

• sexual

• financial

• emotional

Controlling behaviour is a range of acts designed to make a person subordinate and/or dependent by:

 

• isolating them from sources of support

• exploiting their resources and capacities for personal gain

• depriving them of the means needed for independence

• resistance and escape

• regulating their everyday behaviour

Coercive behaviour is:

 

• an act or a pattern of acts of assault, threats, humiliation and intimidation

• other abuse that is used to harm, punish, or frighten their victim

There is no difference between psychological (mental) abuse and physical abuse when it comes to assessing if a person has been the victim of domestic violence.

If an applicant submits evidence to show they have been subjected to domestic violence from someone other than their partner, they can still qualify for settlement under the rules.

In the domestic violence context, family members, whether directly related, in-laws or stepfamily, are defined as:

 

• mother

• father

• son

• daughter

• brother

• sister

• grandparents

Evidence must clearly show the violence has been the reason for the breakdown of the relationship, for example where the person who abuses the applicant is a member of the sponsor’s family and against whom the sponsor offers no protection.

If the perpetrator is under 18 in England and Wales or under 16 in Scotland, the law deals with them differently. Offenders may be given a reprimand or a final warning. Both of these are admissions of guilt and are evidence that domestic violence has occurred.

The legal definition of injury is when any harm is done to a person by the acts or omissions of another.

 RELEVANT REQUIREMENTS

 

Only those in the UK whose last grant of leave was under specific provisions of the immigration rules are eligible to be considered for leave on domestic violence grounds.  There are a number of separate provisions in the immigration rules which enable a grant of leave to victims of domestic violence.

The provision which applies to a particular individual will depend on the rule under which they were last granted leave as a partner.

The Immigration Rules for domestic violence are in paragraph 289A, section DVILR of Appendix FM and Part 6 of Appendix Armed Forces.  They allow an applicant granted leave under these provisions, as a partner of a person present and settled in the UK, or of a member of the Armed Forces who is either British or has 4 years’ service to qualify for indefinite leave to remain, under these sections if they are a victim of domestic violence.

A person must be 18 years or over to qualify for leave as a partner.  This means no-one under the age of 18 can apply under the domestic violence rule as the main applicant.

Paragraph 289A of the Rules:

 

This applies to persons  already in the UK and previously admitted for either:

 

• 27 months

• granted an extension for two years, as a partner of a settled person under part 8 of the Immigration Rules before 9 July 2012 (before 30 November 2013 if the sponsor is a full time member of HM Forces who is British)

Where an applicant was granted limited leave to enter or remain under Part 8 before 9 July 2012 (before 30 November 2013 if the sponsor is a full time member of HM Forces who is British) a Home office Caseworker  will  therefore need to consider under paragraph 289A.  They  must be satisfied on the following points:

 

• applicant was admitted for 27 months to the UK, or given an extension of stay for two years in the UK, as the spouse, civil partner, same-sex partner or unmarried partner of a person present and settled here under paragraph .276AD, 282(a), 282(c), 285, 295(B), 295B(c) or 295E

• relationship was subsisting at the beginning of the relevant period of leave or extension of leave referred to above

• applicant is able to provide evidence to establish their relationship with their partner broke down during the probationary period as a result of domestic violence

• applicant does not have one or more unspent convictions within the meaning of the Rehabilitation of Offenders Act 1974 if the application was made before 13 December 2012 – if the application was made after 13 December 2012, the Home Office caseworker must still check the general grounds for refusal do not apply

Part 6 of Appendix Armed Forces:

 

This applies to persons  granted leave to enter or remain as a partner (but not a fiancé(e) or proposed civil partner) of a member of HM Forces under Part 7 of the Immigration Rules (Paragraph 276AD) or Appendix Armed Forces – where the sponsor is a foreign or Commonwealth citizen the sponsor must have at least 4 years’ reckonable service.

Applicants who were granted limited leave as the partner of a serving or discharged member of HM Forces under paragraph 276AD of the rules or under part 4 of Appendix Armed Forces will be considered under part 6 of Appendix Armed Forces.

 

A Home Office caseworker  will  need to check the applicant was last:

 

• admitted to the UK under paragraph 276AD of the Rules or paragraph 23, 26, 28 or 32 of Appendix Armed Forces

• granted limited leave to allow access to public funds pending an application for ILR under Appendix Armed Forces (under the destitution domestic violence (DDV) concession)

• granted under paragraph 40 (a further period of limited leave)

• that the sponsor is British or has 4 years’ reckonable service at the date of application

• the applicant does not fall to be refused on grounds of suitability or any of the relevant paragraphs of the general grounds for refusal (but note that limited leave may be granted where the applicant fails to meet the suitability requirements in respect of indefinite leave to remain but not in respect of limited leave to remain)

• is able to provide evidence to show their relationship with their partner broke down during the probationary period as a result of domestic violence

Section DVILR of Appendix FM:

This applies to persons  issued 30 months (33 for entry clearance) from 9 July 2012  onwards as the partner of a British citizen or person settled in the UK under Appendix FM

Applicants who were granted limited leave as a partner of a British citizen or person settled in the UK under Appendix FM on or after 9 July 2012 will be considered under section DVILR.1.1 of Appendix FM.

A Home Office caseworker will need to check the applicant was last:

 

• admitted to the UK for 33 months, or given an extension of stay for 30 months, under paragraph D-ECP.1.1, D-LTRP.1.1, D-LTRP.1.2. or, D-DVILR.1.2. of Appendix FM of the Immigration Rules on or after 9 July 2012, as a partner of a British citizen or person settled in the UK

• granted limited leave to allow access to public funds pending an application under DVILR (under the destitution domestic violence (DDV) concession)

• granted under paragraph D-DVILR.1.2 (a further period of limited leave)

• is able to provide evidence to show their relationship with their partner broke down during the probationary period as a result of domestic violence

Those who cannot apply:

The  domestic  violence provision does not apply to:

 

• the spouse, unmarried partner or registered civil partner of a sponsor who has only limited leave to enter or remain in the UK – this includes post-flight partners (where the relationship began after refugee leave was granted) of a person in the UK as a refugee, or partners of a person with humanitarian protection

• European Economic Area (EEA) nationals exercising treaty rights – however, they can apply under the European provisions.

• fiancé(e)s or proposed civil partners

• people seeking asylum in the UK

• the spouse or civil partner of a foreign or Commonwealth citizen who is or has served in Her Majesty’s (HM) Forces and who has not completed a minimum of 4 years reckonable service

 

OTHER RELEVANT CONSIDERATIONS

 

The rules are only for people who have been the victim of domestic violence during their probationary period of leave.

 

The rules are not intended to benefit people:

 

• whose relationship broke down because they were the perpetrator of domestic violence

• where the relationship broke down for reasons other than being a victim of domestic violence

The fact that the relationship broke down due to domestic violence during the very early stages of the probationary period is not an adverse factor in reaching a decision. If an applicant meets the requirements in the Immigration Rules, the Home Office caseworker  must grant  indefinite leave to  remain  regardless of how much of the probationary period is completed.

The Home Office caseworker can accept the relationship was subsisting when domestic violence occurred if evidence is provided that the couple were living at the same address when the incident took place. The fact the couple are still living at the same address when the application is made must not be taken as an indicator the relationship has not broken down, as this could be due to a number of reasons.

The applicant does not need to have knowledge of language and life under the victims of domestic violence rules.

Out of  time applications:

Paragraph 289A, Part 6 of Appendix Armed Forces and section DVILR.1.1 of Appendix FM of the Immigration Rules for indefinite leave to remain (ILR) as a victim of domestic violence do not require a person to have valid leave to remain in the UK. The rules only require a person to have or previously been admitted or granted as a:

 

• spouse

• civil partner

• un-married partner

• same-sex partner

If an application is received from a person without valid leave to remain in the UK,  the Home Office caseworker must consider the reason they were out of time and must make a judgement on whether this affects the assessment of the evidence submitted in support of the application.

 

The Caseworker must consider:

 

• the age of evidence being relied upon – this may impact verifying the evidence

• the applicant has been financially supported

• when the relationship permanently broke down

• if there are any official reports, for example from the police that show passports and travel documents were withheld and the police had to retrieve them

• the time between the breakdown of the relationship and the application

Criminality  requirements:

 

For applications made after 13 December 2012 under part 8 of the Immigration Rules the Home Office caseworker  must check whether the application falls for refusal  under general grounds for refusal. For guidance on how to consider the criminality requirement for settlement in applications from victims of domestic violence, they  must refer to general grounds for refusal.

For applications under Appendix Armed Forces,  the caseworker  must consider Paragraphs 8 and 9 of Appendix Armed Forces and the relevant paragraphs of the general grounds for refusal.

For applications made under Appendix FM, the caseworker  must consider whether the requirements in paragraph S-ILR suitability indefinite leave to remain (ILR) are met. This applies to applications received after 13 December 2012.

Refused  applications- Grant of limited leave to remain instead of indefinite leave to remain:

Home Office caseworker  should normally refuse indefinite  leave to remain  if any of the requirements of paragraph 289A, Part 6 of Appendix Armed Forces or section DVILR of the rules are not met.

If the applicant under paragraph 289A does not meet the requirements for indefinite leave to remain as a victim of domestic violence only because paragraph 322(1C)(iii) or 322(1C)(iv) applies,  the caseworker  can grant further limited leave to remain for a period of up to 30 months. The caseworker  can grant leave with access to public funds if the applicant is destitute. This applies to applications received after 13 December 2012.

An applicant can be granted an extension under section D-DVILR 1.2 of Appendix FM if:

An applicant does not meet the requirements for indefinite  leave to remain  as a victim of domestic violence only because of:

 

• paragraph S-ILR.1.5 – the applicant’s presence in the UK is not conducive to the public good because they have been convicted of an offence for which they have been sentenced to imprisonment for less than 12 months, unless a period of seven years have passed since the end of the sentence

• paragraph S-ILR.1.6 – the applicant has, within the 24 month period before the date of application, been convicted of an offence for which they received a non-custodial sentence or other out of court disposal that is recorded on their criminal record.

In these circumstances  the caseworker  must grant the applicant further limited leave to remain  for a period not exceeding 30 months.

An applicant can be granted an extension under paragraph 41 of Part 6 of Appendix Armed Forces if they fail to meet the suitability requirements in paragraphs 8 or 9 of Appendix Armed Forces in respect of a grant of indefinite leave to remain but not a grant of limited leave to remain. This may be the case where:

 

• the applicant’s presence in the UK is not conducive to the public good because they have been convicted of an offence for which they have been sentenced to imprisonment: – for at least 12 months but less than 4 years and more than 10 but less than 15 years has passed since the end of the sentence – for less than 12 months, and a period of 7 years has not yet passed since the end of the sentence

• the applicant has within the previous 24 months been convicted of or admitted an offence for which they received a non-custodial sentence or other out of court disposal which is recorded on their criminal record

 

Refusal decision and curtailment of leave where domestic violence not proven:

When a refusal is appropriate on an application from a person who still has over one month leave to remain in the UK as a:

 

• spouse

• civil partner

• same-sex partner

• unmarried partner

• whose relationship has broken down is not able to prove their relationship broke down as a result of domestic violence

the Home Office caseworker  must consider curtailment. This is because they now cease to meet the rules under which they were granted leave to enter or remain in the UK

 

Refused  applications- Right of Appeal  or Administrative Review :

 

An applicant who applied on or after 6 April 2015 will not have a right of appeal.  Instead they may be able to have their decision reviewed under the Administrative Review process.

 

An applicant who applied before 6 April 2015 will have a right of appeal if they:

 

• applied for an extension of leave before their previous leave has run out

• will not have any leave left as a result of the decision to refuse

An applicant who applied before 6 April 2015 will not have a right of appeal if they have existing leave on the date  the caseworker  refuses the application or did not have any leave on the date they applied.

THE VICTIMS OF DOMESTIC VIOLENCE CONCESSION: BEFORE THE SUBSTANTIVE APPLICATION

 

A person who flees domestic violence and intends to make a claim for settlement (indefinite leave to remain) under paragraph 289A, Part 6 of Appendix Armed Forces or section DVILR of Appendix FM of the Immigration Rules who is:

 

• the migrant spouse

• partner of a person present and settled in the UK

• partner of a member of HM Forces who is British or has 4 years’ reckonable service

can notify the Home Office if they wish to be considered for limited leave under the DDV concession. This is on the basis that they claim to be destitute.

 

The Home Office operates this policy outside of the Immigration Rules to allow eligible applicants, who intend to make an application for settlement under the domestic violence rule, to be granted leave outside the rules which permits them to access public funds and vital services. Leave outside the Rules  will mean anyone who is eligible does not have to meet the habitual residence test they would otherwise have to meet with other types of leave under criteria set by the Department of Work and Pensions (DWP)

 

The Home Office caseworker  must grant under this concession three months limited leave to remain outside the rules with recourse to public funds. This will give the applicant access to temporary accommodation such as a refuge in order to leave their abusive partner and submit a settlement application under the domestic violence rule

 

Victims of domestic violence  should complete  form Victims of domestic violence (DDV) concession, if they wish to  notify  the Home Office  that  they  require access to public funds (income-related benefits)  in order to find safe accommodation and support  themselves before they  apply for indefinite leave to remain.

 

This is not an application for any specific benefit. If  a person is  granted leave with access to public funds this does not guarantee  their  eligibility for any specific benefit.  They  will still need to apply to the Department of Work and Pensions (DWP), and will need to meet their entitlement conditions for access to public funds.

 

An applicant  should only complete the application  form if:

 

• they were last admitted to, or were last granted an extension to your stay in the UK as a spouse, civil partner, unmarried or same sex partner of a British citizen or person present, and settled in the UK or of a serving or discharged member of HM Forces who is a British citizen or who has served for at least four years ;

• their  relationship has broken down due to domestic violence; and

• they  are destitute and in need of benefits.

The Home Office  will consider whether an applicant  should be granted limited leave to allow them to  access to public funds. They  only need to complete this form if  they  need access to public funds before  they  submit  their application for indefinite leave to remain. This is not an application for indefinite leave to remain on the basis of domestic violence.

If a person is  granted leave with access to public funds, this will be for a limited time of 3 months only. This is to enable  the person  to apply for access to public funds and it will replace  their  current period of leave to remain.

An applicant  should submit their application for indefinite leave to remain on the basis of domestic violence within this 3 month period. If  they do not submit a further application within 3 months, any leave  the Home Office grant   as a result of this notification will come to an end. This means  the person  will be expected to leave the UK.

Where person qualifies under the concession and  they are granted limited leave, this does not guarantee that  their  application for indefinite leave to remain will be successful.

If a person  qualifies  for leave to remain in the UK for a period of 3 months,  the Home Office  will send  them  a letter giving information about enrolling  their  biometric information. That letter will allow an applicant  to enrol  their  biometric information without having to pay a fee.  If  the applicant has children under 16 who are included in the notification, they will also need to enrol their biometric information, in the presence of a responsible adult.

If  the Home Office  grant a person  a period of leave to remain in the UK with access to public funds,  they  will issue  the person  a biometric residence permit. Where the  application is successful, this leave will supersede the person’s  current leave and cannot be reversed should that person’s circumstances change.

 

The  completed form  should be  sent to the Home Office by email to:

 

Domestic.Violence@homeoffice.gsi.gov.uk.

 

Or post to:

 

DV Duty Officer

Dept 81

UK Visas & Immigration

The Capital

Level 5

LIVERPOOL

L3 9P

 

Postal notifications will however  take longer to process. The Home Office caseworker  must confirm receipt of the notification by email where possible. The Home Office aims to process notifications within 5 working days of receipt.

 

THE APPLICATION FOR INDEFINITE LEAVE TO REMAIN : APPLICATION FORM AND FEES

 

The relevant application form that must be completed in order to submit an application for indefinite leave to remain  as a victim of domestic violence is Form SET(DV).

 

Currently, the application fee is £2297.00 for a single applicant. If one or more dependants are applying with  the applicant,  the fee increases by £2297 for each dependant applying as shown in a table within the application form.

 

An  applicant may include their  children under the age of 18 if they are applying as  their dependants, however they must pay the specified fee if they apply separately. Children aged 18 or over may not be included. They must apply individually and pay the specified fee in each case.

 

The fee does not need to be paid if an applicant is  destitute at the time of making the application. If an applicant is claiming an exemption from  paying the fee because  they  are destitute, they should  tick the relevant box  within the application to  confirm this.

 

The premium service at  Premium Service Centres is not available for applications on form SET(DV).

 

As part of  the  application, an applicant is  required to enrol  their  biometric information. They  will be charged an additional handling fee for this service payable to the Post Office Ltd.  They  must pay the fee by cash or debit card when   they  attend Post Office Ltd. to enrol  their  biometrics.  Each dependant included on  the  application must also pay this additional fee when they enrol their biometric information.

 

Applicants on some immigration routes are exempt from paying an enrolment fee at the Post Office Ltd.  If an applicant is  in one of these categories they  will be informed of this when  the Home Office  send  a biometric notification letter.

 

An  application may be rejected as invalid if an applicant  do not enrol their  biometrics when requested.

 

Validity of an application:

 

Paragraphs 34-34I of the Immigration Rules specify certain requirements with which an application on a form specified for the purpose of the Rules must comply. To make a valid application, an applicant  must:

 

• apply on the current version of form SET(DV)

• pay the specified fee by one of the methods specified in the payment guidance (unless they are destitute)

• provide photographs of themselves and any children under 18 who are applying with  the applicant  as specified in the application form

• complete section 8 (Personal History) as required

• sign the declaration in section 13

• send the application by prepaid post to the Home Office

If an applicant fails to do any of these things, the application will be invalid and the Home Office  will return it to  the applicant.

An applicant  must  complete every relevant section of the form as required and provide all the documents specified for  the  particular application, including  their  valid passport or (except a PBS applicant) a national identity card. If  they  do not have these (except a PBS applicant), their  most recent national identity card. If they  do not  have either of these,  the applicant  can provide a travel document.  They also need to include the valid passport, national identity card or travel document of any dependants applying with them.  Where an applicant does  not do this,  the Home Office reserve the right to decide  the  application on the basis of the information and documents provided. It is important, therefore, to provide an explanation if an applicant  cannot give  the Home Office  all relevant information or documents when making  the  application.

In addition, to be provided are two identical passport-size photographs of   the applicant with their  full name written on the back of each one. Where relevant,  two identical passport-size photographs of any children under 18 who are applying with  the applicant with their full name written on the back of each one.  The photographs  provided must also comply with the format requirements specified in the separate UK Visas and Immigration photograph guidance.

Documents  provided with the application must be originals. Copies of any kind are not acceptable unless there are valid reasons for not being able to provide the original document. In such circumstances,  the Home Office may accept a  copy certified by the body or authority which issued the original (for example, a copy of a savings book certified by the building society or bank), or by a notary.

The reasons for not being able to provide the original document must be explained in a covering letter. The Homer Office are unlikely to grant the  application without the original document.

 

Any documents not in English must be accompanied by a reliable English translation.

 

Passports or travel documents must be  signed.

 

If an applicant  needs to contact the Home Office after they  have applied,  or to  send  the Home Office more information about  their application, they can  write to the following address (not the one to which  they  posted  their  application):

 

Home Office, Liverpool Settlement Casework, PO Box 306, Liverpool, L2 0QN

 

When contacting the Home Office, an applicant can give the following details in  their correspondence:

 

• the applicant’s full name,

• date of birth and nationality

• any Recorded or Special Delivery number

• the date on which the application was posted

• the Home Office reference number if they have one

 

 

THE APPLICATION FOR INDEFINITE LEAVE TO REMAIN – FEE EXEMPTION APPLICATION

 

A person who appears to be destitute will be exempt from paying the application fee for indefinite leave to remain (ILR) as a victim of domestic violence.

 

If the applicant claims to be destitute they must submit the SET(DV) application form as normal, but will not submit the specified fee. They must provide a letter which says why they are destitute and provide additional evidence to show they:

 

• do not have access to enough funds to pay the specified application fee

• have total and necessary reliance on a third party for essential living costs, such as basic accommodation and food

If a person shows they are totally reliant on third party support,  the Home Office Caseworker must consider them destitute.

 

Form SET(DV) asks relevant questions so as to enable consideration of whether an applicant is entitled to an exemption from paying  the Home Office application fee:

 

• Is the applicant  claiming exemption from paying the application fee because they  are destitute? The question  requires a Yes or No response. If an applicant is claiming exemption from the fee but has  answered “no”,  their  application will be rejected as invalid because destitution is the only ground on which an applicant  may be exempted from paying the fee in an application on form SET(DV).

• Is the applicant  currently being supported by a refuge or local services? If so, evidence is required to be provided.

• If not supported by a refugee or local services, the question is whether an applicant  currently pays for  their accommodation ( ie, the place where they  live). If payment is made,  the amount paid is required.

• A question is asked whether an applicant has savings.

• An applicant will be asked whether they are working. If yes, the  pay each month after income tax and other deductions will need to be disclosed.

• The Home Office will want to know if a relative or friend regularly gives an applicant money- if yes, relevant evidence must be provided.

• If an applicant is receiving public funds, an applicant is required to  indicate which benefit(s) from a list provided within the application form.

• The Home Office will ask if there is anything else an applicant  wishes to tell them  about their  financial situation Where this is the case, details should be  provided.

 

What is  destitution?

 

The legislative background of the definition of destitution can be found in Regulation 8 of the Immigration and Nationality (Fees) Regulations 2007.

An applicant does  not need to pay the Home Office application  fee if  they can show that  they  are destitute. A person who claims to be destitute for the purpose of being exempt from the fee must provide evidence to show  that, on the date of making the application, they have:

 

1. no access to sufficient funds to pay the specified application fee; and that they are;

2. totally and necessarily reliant on a third party for the provision of essential living costs, such as basic accommodation and food.

The Applicant  must provide satisfactory evidence if they claim to be destitute.

Unless an applicant  provides satisfactory evidence,  their  claim to be destitute will not be accepted and  their application will be rejected as invalid.

Proving destitution – Documentary evidence  required:

The application form  also asks what sources of financial support an applicant has.  This could be  from employment, savings, benefits, family/friends, any agency, other or none. An applicant will be required to  give details of the financial support they  are receiving and provide documentary evidence to support this, such as pay slips, bank statements, savings books/statements, benefits received, money received from family/friend(s), or a statement from the refuge or local authority assisting  the applicant  including their contact details. An applicant will be required to explain how long they have been receiving  relevant support.  If  an applicant has  ticked None, they are required to  provide information and evidence of how their  meet their essential living costs, such as basic accommodation and food.

An applicant is deemed reliant on third party support if they can provide evidence to show the third party provides them with the means to live day-to-day.  A written statement from the supporting body is needed if the applicant claims they are totally reliant on a third party for essential housing and living costs, such as:

 

• a local authority

• a refuge

• friends

• relatives

This statement must confirm:

 

• the applicant’s position

• they are providing housing and living costs support

If an applicant claims they are totally reliant on friends and relatives, they must provide evidence to show they receive this support. The Home Office does not expect that support to extend to paying an application fee. If  the applicant is  receiving support from a third party, e.g family and friends, the applicant  must provide a letter confirming what support arrangements are in place, together with other documents to prove  their inability to pay the application fee.

If they are assessed by a local authority or refuge as destitute, written confirmation of that assessment will be evidence to support the decision to waive the fee.  A signed  letter  or other documents  must be  provided as evidence that an applicant is  destitute e.g. from the local authority or agency supporting  them confirming that they have assessed  the applicant and that for their purposes in providing support to the applicant,  they accept that  the applicant  is destitute at the time of the application and therefore unable to pay the fee.

If a Home Office caseworker  decides the applicant is destitute they  must waive the application fee. The caseworker is however  not required to  write out for further information when they  assess destitution. The  decision must be made based on the evidence the applicant submitted with their application.

The  caseworker  must reject the application on the basis no fee has been paid if the evidence the applicant provides does not support their claim to be destitute. They  must fully explain why the applicant does not appear to be destitute based on the evidence they have provided. Applicants will then be expected to pay the fee or resubmit their application and provide other evidence to prove they are destitute

If an applicant is  not claiming to be destitute,  they  must pay the specified fee.  If an applicant does not, the application will be invalid and will be returned to  the applicant.

Where the applicant   is paying the application fee,  the Home Office will not refund it if  they  refuse the application or if  an applicant  withdraws it.

 

APPLICANT’S STATUS WHILST AN APPLICATION IS BEING CONSIDERED

 

If an applicant  and any children under 18 apply before the end of  the permitted stay in the UK, the applicant/ their existing immigration status, including any permission to work, will continue until  the application/their application(s)  is/are decided.

 

PROVING DOMESTIC VIOLENCE

 

The Immigration Rules do not specify documents which must be provided. The Home Office caseworker  must consider each case on a case-by-case basis.

To prove domestic violence has occurred the applicant must submit supporting documents with their application.

Home Office policy guidance Victims of domestic violence sets out the relevant documentary evidence required. Application Form SET(DV)  summaries the relevant evidence  in a shorter format as set out below.

A Home Office caseworker  must take the following types of evidence as proof of domestic violence, they do not need further consideration:

 

• a relevant court conviction against the sponsor

• full details of a relevant police caution issued against the sponsor

Home Office policy guidance states that some evidence may suggest domestic violence has occurred but the alleged perpetrator has not been found guilty by a court or admitted to guilt. Caseworkers are instructed to  treat this evidence with caution and consider it along with all evidence supplied. These include a:

 

• non-molestation order

• letter from the Chair of a multi-agency risk assessment conference (MARAC)

Home Office policy guidance recognises that often victims do not have the official documentary evidence to prove domestic violence. This may be because of an unwillingness or not enough evidence to take the matter to court or to a multi-agency risk assessment conference (MARAC).

Proving Domestic Violence-  what Form SET(DV)  specifically requires:

Form SET(DV) requires   information and documentary evidence to satisfy the Home Office  that an applicant is  a victim of domestic violence.  An applicant  must answer the relevant questions and provide evidence from independent and objective sources. The documents must relate to violence committed against an applicant  by their and/or by his or her family. Where available, the evidence must come from the sources detailed below but the applicant  may also provide evidence from other sources.

 

Relevant evidence must be provided  as per SET(DV):

 

• An injunction, non-molestation order or other protection order (other than an ex-parte or interim order). Where the order refers to any undertakings made in writing by either the applicant  or the person(s) who committed the violence,  this   must be  provided. The Home Office cannot accept an ex-parte or interim order in this section.

• A relevant court conviction.

• A relevant police caution. This should include the full name, date of birth and nationality of the person(s) who committed the violence, as well as their address(es) at the time of the incident(s), and now, if different; and the date, time and place of the incident(s) in respect of which the caution was issued or a prosecution is taking place

If an applicant is  not able to provide any of the evidence listed above,  they  should provide as much evidence as possible, of the types of evidence listed  below, If an applicant is  unable to provide any of the listed  evidence, they are required to  give reasons.

 

• A medical report from a hospital doctor or GMC registered family practitioner (GP) or doctor employed by Her Majesty’s Armed Forces who has examined the applicant confirming that the injuries are consistent with being a victim of domestic violence. The report must include the doctor’s GMC Registration Number and must provide the date of  the applicant’s  first registration, the dates of visits in which domestic violence was reported, and an extract from the record of these details.

• An undertaking given to a court that the person(s) who committed the violence will not approach the applicant.

• A police report confirming that, because of a domestic violence incident, they attended the address at which the incident(s) took place. A copy of the incident log must be provided. It must show the address(es) at which the incident(s) took place.

• A letter from a social services department confirming its involvement in connection with domestic violence committed against the applicant.

• A letter of support or a report from a domestic violence support organisation/refuge.

• If the applicant is  the subject of a multi-agency risk assessment conference (MARAC), evidence from the chair of the MARAC stating that they  have been the victim of domestic violence.

Other documentary evidence  – if an applicant is  unable to provide any evidence as listed above, they should  explain the reason for this and list any other evidence they  are providing.

The application form also requires the following:

 

• A statement signed by the applicant  stating whether  they are still living with  their partner and, if the marriage or relationship has broken down, whether domestic violence was the reason for this.

• A description of the incident(s) of domestic violence against the applicant, including the date(s), time(s), and place(s) of the incident(s).

• If anyone other than the applicant’s  partner committed domestic violence against  the applicant, their name(s) and relationship to  the applicant  must be provided.

• Whether the applicant reported the violence or abuse to any agencies, services, other bodies or individuals. If not,  the applicant is required to please explain why.

The  evidence provided by an applicant   may relate to one incident or a number of incidents and must be used to build a case history, in order to make as thorough a decision as possible, when the Home Office caseworker  makes a judgement on whether domestic violence has taken place. They  must thoroughly explain all decisions based on such evidence listed above.

Applicants must provide as much evidence as possible to prove they were the victim of domestic violence. Home Office guidance states that whilst an applicant provides just one piece of evidence from the list above may be able to prove their case, in general an applicant who submits only one piece of evidence would not usually be considered to have proven their case.

Home Office caseworkers are instructed to  treat with caution all witness statements from friends or family and letters from official sources that relay unfounded reports by the applicant but do not confirm the incident. This type of evidence must be verified where possible and treated as additional evidence when the caseworker  builds the case background.

Caseworkers  must be satisfied the evidence provided is genuine.

Counter claims of domestic violence:

 

The Home Office  may receive counter claims from the alleged perpetrator, in some cases these claims may already be on the Home Office file.  Home Office caseworkers  can consider counter claims as evidence alongside an application. However, they must disregard any counter claim where the applicant is able to produce evidence:

 

• of a court conviction

• of a police caution

• they are subject of a multi-agency risk assessment conference (MARAC)

If the applicant is relying on other evidence that domestic violence has occurred,  the Caseworker  must consider the counter claims. They  must weigh up the evidence presented by each side and make a judgement as to whether they  are satisfied, on the balance of probabilities, domestic violence has occurred.

Evidence of  relationship with the Partner:

 

Form SET(DV) also requires the following:

 

• The partner’s full name, nationality and date of birth.

• The last address at which the applicant lived with their partner

• Clarification of when the relationship broke down.

• Whether the applicant is living apart from the partner- if so when they started living apart.

• If an applicant is still living with  their partner, they are required to   explain the reason for this. They should provide any relevant supporting evidence if they  are still with their  partner because there is no alternative accommodation.

• Clarification if the partner  is a serving or discharged member of Her Majesty’s Forces. If yes, the applicant is  required to provide detailsof their partner’s service such as what is/was the partner’s HM Forces service number and what is/was the applicant’s  partner’s rank in HM Forces. Clarification of whether  the partner is a British citizen and if not when the partner joined the armed forces. Indication of whether the partner is still serving, and if not when they were discharged. In relation to current service, where the partner is  currently posted including the current, country and length of posting.

Only if an applicant  cannot provide  their passport or other documentary evidence that  they  either entered the UK with an entry clearance (visa) or were granted leave to remain as a partner is the following information required:

 

• When the applicant married, entered into a civil partnership or started living together in an unmarried or same-sex relationship.

• Whether the applicant obtained an entry clearance as a partner.

• When and where were the applicant was  issued with the entry clearance.

• When the applicant entered the UK.

• If the applicant entered the UK more than 2 months after they  were issued with the entry clearance,  they are required to  explain the reason(s) for this.

• If the application as a victim of domestic violence is being made after the end of  the applicant’s leave as a partner,  they are required to  explain the reasons for this.

Evidence of previous cohabitation with  the partner:

 

The applicant must also provide documentary evidence to show that they and their partner were living together from the time when  the applicant was  granted leave to enter or remain as a partner until such time as  their relationship broke down. The  evidence requested should take the form of at least 5 items of correspondence either addressed to the applicant  jointly or in both their names, or addressed individually to each of  the parties at the same address. Examples of acceptable correspondence include:

 

• Bank statement(s)/letter(s)

• Building society saving(s) book(s)/letter(s)

• tax bill(s) or statement(s)

• Water rates bill(s) or statement(s)

• Electricity bill(s) or statement(s)

• Letter(s) or other document(s) from government departments or agencies, for example: HM Revenue and Customs, Department for Work and Pensions, DVLA and TV Licensing

• insurance policy(ies)/letter(s) – Mortgage statement(s)/agreement

• Tenancy agreement – Telephone bill(s) or statement(s) – Loan offer(s)/agreement(s)

• Letter(s) or other document(s) from your GP, a hospital or other local health service about medical treatments, appointments, home visits or other medical matters

If an applicant is unable to provide the required documentary evidence to show that they  and their  partner were living together until such time as their  relationship broke down,  they are required to  explain the reasons for this.

 

RELEVANT HOME OFFICE APPLICATION FORMS AND GUIDANCE

 

• Application for indefinite leave to remain in the UK as a victim of domestic violence: form SET(DV)

• Form SET(DV): guidance notes

• Victims of domestic violence (DDV) concession

• Victims of domestic violence

 

CONCLUSION

 

It might seem that without the  required set out above evidence, an application placing reliance upon the domestic violence Rules might not succeed. It is  however not unheard of for the Home Office to grant indefinite leave to remain without any or very little supportive documentary evidence of domestic violence provided by an applicant.  The key to success might be to hone in on the  new definition  for domestic violence referred to above,  obtaining meticulous detail of the incidents of violence and set these out in a written signed   statement  in support  of  the  application.  For example,  where the police do not take further action against a partner in relation to allegations of  physical assault,  it might be possible to sustain an argument that having  regard to the psychological, emotional,  financial or described  sexual abuse  incidents,  that a Home office case worker  should  find  an applicant credible  and grant settlement.  Of course attempts to obtain the relevant documentary  evidence  should be explained but where no evidence  has been obtained  or is not in existence,   reasons must be provided and relevant submissions made nonetheless.

 

The fact that a Home Office caseworker  might write in requesting that an applicant provide  further documents even though the applicant has already provided all that they can,  does not mean that a detailed response should not be forthcoming. Reliance can also  still be placed upon well prepared supportive statements from relatives or friends- even though  Home Office guidance instructs Caseworkers to approach these with caution.  Any other documentary evidence such as  medical or police  reports from the applicant’s own  home country to show the partner was abusive even prior to the applicant’s arrival in the UK, should be submitted.

 

It might that   the police have investigated allegations of physical assault but  taken no further action with indications that the  applicant has  provided  a vague  account. The letter from the police to the applicant might also  state that  there is not enough evidence  to refer the case  to the CPS  due to lack of corroborative evidence.  The police may say , “ This  does not mean  that I or other police  officers do not believe what you have told us”.  In these circumstances, it is  worth drawing attention to the  fact that  the burden of proof in criminal cases is ‘beyond reasonable doubt’ but the standard of proof in immigration cases is ‘on the balance of probabilities’.  Submissions can be made that  the applicant  has given the Home Office, via a statement, sufficient detail  indicating a clear account of  domestic violence.

 

It some instances, it can be  ascertained that there will likely be very little chance of success in relation to submission of an application  for indefinite  leave to remain as a victim of domestic violence.  Where the applicant has,  for example,  a British child with the partner, an FLR(FP) application  placing reliance upon  the immigration rules as a parent or based on exceptional circumstances should be submitted even though  the result will be that  the applicant  obtains leave to remain on the 10year route to settlement.