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All you need to know about domestic abuse and ILR

Written by
Reiss Edwards
Date of Publication:
09 November 2020

If you or your children are in immediate danger, please call 999 and ask for the police. You can also call the 24-Hour National Domestic Violence Helpline on 0808 2000 247.

Anyone in an abusive relationship is in a dangerous and terrifying situation. But if you are in the UK on a Spouse Visa, Civil Partnership Visa, or Unmarried Partner Visa, the situation is especially frightening. But you are not alone. And you can apply for Indefinite Leave to Remain (ILR), which will allow you to stay permanently in the UK if your relationship breaks down because of domestic violence/abuse.

What Is Domestic Abuse?

Domestic violence involves an incident or pattern of incidents of controlling, coercive, threatening, degrading, and /or violent behavior, including sexual violence, in most cases in a partner, ex-partner family member or carer.

It can include, but is not limited to:

• Physical violence

• Emotional and mental abuse

• Sexual abuse

• Economic abuse (withholding money or refusing to allow you to work)

• Coercive control

• Online or digital abuse

• Harassment and stalking

Both men and women can be victims of domestic abuse.

What Is Meant By Controlling Coercive Behaviour?

Section 76 of the Serious Crime Act 2015 created an offence criminalising controlling or coercive behaviour in an intimate or family relationship where the behaviour has a serious effect on the victim.

Examples of controlling coercive behaviour include (but is not limited to):

• Monitoring a person's time and who they see

• Isolating a person from their friends and family

• Depriving someone of their basic needs

• Enforcing rules and activity which humiliate, degrade, or dehumanise the victim

• Criticising them and telling them they are worthless

• Threats to kill, either the victim, a child, or a pet

• Controlling finances and not allowing a person access to money

The Home Office guidance clearly states that No distinction should be made between psychological (mental) abuse and physical abuse when assessing if a person has been the victim of domestic violence or abuse.

What Is A Non-Molestation Order And Occupation Order?

To protect yourself and your children you can apply for a Non-Molestation Order from the Family Court. A Non-Molestation Order confers protection on family members, including children or people in a domestic relationship, against the use of violence or other forms of molestation by a person with whom they are associated. The legislation does not define €˜molestation', so it can have a wide interpretation. A Non-Molestation Order can be applied for without your spouse/partner's knowledge (known as an ex-parte application).

If your abuser breaches the terms of a Non-Molestation Order, the police can charge them with a criminal offence.

You can also apply for an Occupation Order, which will allow you and your children to remain in the home that you shared with the perpetrator. Occupation Orders are often temporary and difficult to obtain. Therefore, it is best to seek legal advice before making an application.

How Do I Apply For ILR If I Am The Victim Of Domestic Abuse?

If you are in the UK as a spouse or partner of a British Citizen or someone with ILR, you can apply for permission to stay permanently in Britain, even if your visa has expired. The domestic violence ILR route is not open to those in the UK on a Fiancé Visa or any other type of visa, such as a Tier 4 Student Visa.

If you have fled to a refuge to escape the family home and have no means of financial support, you can apply for three-months' leave to remain in the UK under the Destitute Domestic Violence Concession. If you are granted this concession, you can access public funds and benefits.

To be eligible for the Destitute Domestic Violence Concession, you must prove:

• you are in the UK on a spouse/partner visa,

• your relationship has broken down because of domestic abuse,

• to escape to safety, you need access to publicly funded benefits, and

• you intend to apply for ILR as a victim of domestic violence.

Once you have been granted the Destitute Domestic Violence Concession and are in a position of safety, you must apply for ILR.

To obtain ILR as a victim of domestic violence, you must:

• be in the UK

• have made a lawful application

• meet the suitability requirements for ILR

• meet all the eligibility requirements

What if my partner has hidden my passport?

Many victims of domestic abuse find that their partner will do everything possible to hinder their application for ILR. You will need to provide evidence of identity when making your ILR application unless there is a good reason for not being able to do so. If your partner refuses to hand over your passport, make an application to your country's embassy or consulate for a new one, reporting your existing passport stolen. By doing this, you can provide a 'good reason' why you are unable to include your passport with your application.

Proving Domestic Abuse

The Home Office guidance does not set out specific documents that must be produced to prove that your relationship has broken down because of domestic violence. Every application will be decided on an individual basis. The caseworker will need to conclude, on the balance of probabilities, that domestic violence/abuse occurred.

Evidence that can support your application include:

• The granting of a court order, such as a Non-Molestation Order, Occupation Order, Forced Marriage Protection Order, or a Prohibited Steps Order or Contact Order in which domestic violence was a factor in the Order being granted.

• Your partner has had a criminal conviction for committing domestic violence against you and/or your children.

• Evidence of police attending a domestic violence incident at your home.

• Medical records showing that your injuries were consistent with domestic violence.

• A letter from a refuge or other agency supporting victims of domestic abuse stating that you have been assessed as a victim of domestic violence and support has been provided. If no assistance was given, make sure a reason is included (for example, the refuge was full).

Can I Have The ILR Application Fee Waived?

The fee for a domestic violence ILR application is the same as all other ILR applications (at the time of writing £2,289). However, this fee will be waived if you can prove that:

• You do not have adequate accommodation or any means of obtaining it; or

• You have adequate accommodation but cannot pay for other essential living needs.

You will need to provide evidence in the form of bank statements, a rental agreement, utility bill, etc. However, many victims who have fled their abusers do not have these to hand. The best evidence under these circumstances is a letter from your local authority or a refuge confirming that you have been provided with financial support and your poverty is genuine.

Getting Legal Representation

Given the complexity of obtaining ILR as a victim of domestic violence and the level of evidence required to support the application, getting professional legal advice is vital. Unlike most other immigration matters, you can apply for legal aid to help pay your lawyers' fees and expenses.

Not every law firm has a legal aid contract. However, all lawyers registered with the Solicitors Regulation Authority (SRA) have a legal obligation to direct you to a legal aid Solicitor if they believe you qualify for financial support.

Domestic abuse is a criminal offence and is never the victim's fault. Help is available from the below organisations.

Support Services For Domestic Violence Victims

National Centre for Domestic Violence (NCDV) - 0800 970 20 70

Refuge - 0808 2000 247 (24 hours)

Women's Aid 0808 200 0247 (24 hours)

ManKind - 01823 334 244

Galop LGBT Domestic Abuse Helpline - 0800 999 5428