The fact that victims of domestic violence have a route to apply for Indefinite Leave to Remain (“ILR”) in the UK is not one that is widely known. The Home Office will allow someone who has the right to reside in the UK under Appendix FM to remain in the UK indefinitely in circumstances where their relationship has ended due to domestic violence.
The Home Office has published guidance on the definition of domestic violence, which is any incident or pattern of incidents of 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. The definition includes (but is not limited to) abuse that is psychological, physical, sexual, financial or emotional.
Individuals who find themselves in this situation can use application form SET(DV) to apply for ILR. Unlike other routes to gain ILR, applications for settlement on the grounds of domestic violence contain a clause stating that the application fee can be waived. However, applicants must provide evidence that they do not have adequate accommodation or cannot meet their essential living needs.
The SET(DV) application form is clear on the requirements for a successful application. An applicant must:
- Be in the UK;
- Have made a valid application;
- Not fall for refusal under the suitability requirements for indefinite leave to remain; and
- Meet the eligibility requirements.
However, this type of application is decided on a discretionary basis, and the conditions above do not necessarily have to be met. Each case is considered individually and on its own evidence.
Only those who have been granted leave to remain in the UK previously are eligible to apply under this route. The prospective applicant’s first grant of leave must have been under paragraphs D-ECP.1.1, D-LTRP.1.1, D-LTRP.1.2, (other than as a partner of a person in the UK with limited leave, a fiancé or fiancée or proposed civil partner), or D-DVILR.1.2 of Appendix FM. Alternatively, their last grant of leave must have been under paragraph 276AD of the Immigration Rules or paragraphs 23, 26, 28 or 32 of Appendix Armed Forces.
Appendix FM states that it “sets out the requirements to be met and, in considering applications under this route, it reflects how, under Article 8 of the Human Rights Convention, the balance will be struck between the right to respect for private and family life and the legitimate aims”. It is therefore necessary to provide evidence that a failed application would interfere with the applicant’s right to a settled life here in the UK.
This application route enables a person to apply for ILR where they are unable to apply as the dependant of an abusive partner, although in order for an application to be successful it needs to be supported by sufficient evidence of domestic abuse and complete destitution.
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.
©Gherson 2018