Domestic violence applications and applying for indefinite leave to remain (ILR)
An application for indefinite leave to remain (also referred as ILR), under the domestic violence route can be applied by a person in the UK. The policy for those who can apply as a victim of domestic violence is set out on Appendix FM section DVILR of the Immigration Rules HC395.
One of the driving forces to prevent a person becoming a victim of domestic violence, is asking a migrant who decide to come and join their partners in the UK, is to learn basic level of English, so that they can seek help and provide a prevention method to those who decide to take that advantage.
First of all, let us summarise what can be defined as a person who is a victim of domestic violence; here is a list however please note that this is not an exhaustive list:
Controlling behaviours, for example, telling you what you are allowed to do or not.
Threatening behaviours, for example, this can be both verbal and physical behaviour.
Obviously, any physical violence towards you.
Emotional and psychological abuse, for example, blaming you for faults that was not yours or making you take responsibility for their actions.
Financial. This can include but not limited to, controlling your spending or telling you what you are allowed to buy. The most common action is that if your employed, your wages are the deposited into their account or is transferred from your account to theirs.
The Family Law Act 1996
There are 2 specific types of civil court order that protects a person who is a victim of domestic violence. These evidences become one of the crucial part of the ILR application:
Non-molestation order. This is an application lodged into the court, to stop contact with the Applicant. As part of the application, you must arrange for a copy of your application and witness statement to be ‘served’ on the person named in the application. This means making sure they get a copy of the documents in person.
Occupation orders, which permits the Applicant, to continue living at the previously shared accommodation and they are usually temporary orders. The hearing will be held in private (sometimes called ‘in chambers’). In most cases only you and the person you’re applying for an injunction against, and any legal representatives, can attend. The court will provide an interpreter if you asked for one when you applied for the injunction. They can translate what happens during the hearing but they cannot represent you or give you legal advice.
Domestic Violence Concession (SET DDV)
The introduction of this concession policy allows leave to be granted for a period of 3 months, which is classed as “leave outside the immigration rules” also referred as LOTR which allows the Applicant to have access to public funds.
Section 3C of the Immigration Act 1971 will ensure that as long as a valid application is made in time, the person will continue to have access to public funds until the matter is concluded.
The application process of the SET(DV) for ILR
First of all, the application must be completed using the correct form, which are common mistakes made. An application is still classed as valid if applied out of time within the 14 days however you must meet the exception policy as set out by the immigration rules.
You must provide evidences to support your application. There is no specified list of evidences set out by the immigration rules. In most cases, your evidences will be determined by the factual matrix of your application.
When the application for ILR as a victim of domestic violence is considered by the Home Office, they will consider the following as part of their assessment:
Timing of the application, so it is best advised that you apply as soon as possible.
The length of your relationship prior to submitting the ILR application. It is important to note that just because an application is made during the early parts of your leave to remain does not itself demonstrate that the relationship was not genuine prior to any forms of domestic violence.
In all cases, your immigration history is considered and whether you have made repeat applications on other grounds. Your credibility are tested by the Home Office.
The length of your residency and also from the alleged incident.
Following the Immigration Act changes, a right to appeal is generated for all human rights cases. It is important to note that even if the application is lodged in time, the Home Office can certify your claim as unfounded and this will mean that you can only appeal against this decision from outside of the UK.
Where an application is refused and a right to appeal is generated in the UK, the matter will go before an Immigration Judge at the First Tier Tribunal. You will get an opportunity to put forward your matter before the Tribunal, who are independent from the Home Office and the Judge will determine whether you should be granted your ILR or any other forms of leave to remain in the UK.
Prior going to the First Tier Tribunal, you will need to submit an appeal bundle, also known as trial bundles. A number of key evidences and legal representation must be prepared and submitted including your witness statement. This will go before the Immigration Judge and the Home Office Presenting Officers (HOPO) prior to the appeal hearing and will be used by you, in your defence for the appeal hearing.
Why ICS Legal for SET (DV) Application - ILR as a victim of Domestic Violence?
ICS Legal provides both legal advice and help on filing your application for ILR. We use our experience and sound knowledge to guide you through the application process. If you wish to discuss your case with us, speak to us on 0207 237 3388 or email us at email@example.com.
Frequently asked questions?
Who is allowed to apply for settlement as a victim of domestic violence? A person who holds leave to remain as a partner under Appendix FM or under Part 8 of the Immigration Rules HC395. Those who hold leave to remain under other immigration categories can still benefit of being granted outside of the immigration rules. Fiancés, fiancées and proposed civil partners will not be allowed to apply because they will hold only temporary leave to enter and there are no expectations for them to remain in the UK on a permanent basis.
Why this category of leave is limited to those under Appendix FM or Part 8 of the Immigration Rules HC395? This is a settlement based application, which means that after a completion of 5 years or 10 years, a person is eligible to apply for ILR. Those who are in an abusive relationship are given the flexibility to apply for ILR if their relationship had broken down as a result of domestic violence.
When should I submit my domestic violence ILR application? You must make an in time application to avoid becoming an overstayer. Where you hold valid leave to remain, you can still lodge an application as you do not need to wait until your visa expires. Taking early legal advice is important, so that you can understand your rights and when to make an application. Simply lodging an application with the fee is not the only task but you need to present a good application with specified evidences.
Can I apply even if my leave has expired? A number of changes have been implemented on in time application and the introduction of paragraph 39E of the Immigration Rules states that all application must be done in time unless you meet one of the exception policies. In some case, an ILR application could still be granted outside of the immigration rules.
Does fee waiver exist? In most cases, you can request an exemption from paying the fee. However you will be asked to disclose your financial details and provide all the relevant evidences. The Home Office in our experience do financial checks on you so do not conceal any information as that would impact your credibility and also your application would be returned as invalid. This may affect your right to appeal if an application is refused.
Can I apply outside of the UK for the ILR application? No. This is not allowed and there are no provisions within the immigration rules to allow you to do so.
What evidence do I need to provide in support of the ILR application? First of all, the Appendix FM of the Immigration Rules does not provide you a specified list of evidences. This is because the Home Office recognises that all applications will be different. The burden of proof sits with the Applicant to produce relevant evidences to support their claim.
In your application, you will need to provide independent evidences such as police reports, doctor’s report to name a few in order to demonstrate that you are a victim of domestic violence. Home Office understands that sometimes, not all evidences are available and your legal representation will not explain how you meet the policy of Appendix FM Immigration Rules.
Where should I submit my application? As part of the Home Office’s digital transformation, applications are lodged online. In most cases, your application will be treated as complex therefore it would not appear this would be considered in their 24 hour service.
When a domestic based ILR application is refused?
If an application for ILR is refused, then we will have a right to appeal before the First Tier Tribunal, because the application is classed as a “human rights application”. You will have 14 days to lodge your appeal, with your legal grounds and any relevant evidences to which you intend to rely upon as part of your submissions to the First Tier Tribunal.
Once an appeal is lodged, Secretary of State is notified and in most cases, is tasked to reconsider their position. If the matter is not reconsidered and is maintained, the First Tier Tribunal will set a hearing date to hear the matter in full and will ask both parties to submit their respective appeal bundles.
Getting help and support
There are a number of agencies who can provide you help and advice if you fall as a victim of domestic violence:
https://crimestoppers-uk.org. Speak up and stay safe.
The 24-hour Freephone National Domestic Violence Helpline: 0808 2000 247, run in partnership with Women’s Aid and Refuge.
Northern Ireland Women’s Aid 24 Hour Domestic Violence Helpline: 028 9033 1818.
Scottish Domestic Abuse Helpline: 0800 027 1234.
Wales Domestic Abuse Helpline: 0808 80 10 800.
Men’s Advice Line: 0808 801 0327.
Trusting ICS Legal with your domestic violence ILR application?
We appreciate the diverse challenges we face from 'No Win No Fee firms and 100% success rates'. ICS Legal are not in the business to provide such promises, after all we are not the Home Office. Our trust with you is based on our conversation, in spite of everything and above all, you are buying our expertise & sound knowledge on those matters.
We have been part of the changes and will continue to be part of this, as we continue to support our Clients through their application for indefinite leave to remain. You can contact us on 0207 237 3388 to get more information on how we can help you or simply, send us an email to firstname.lastname@example.org.