Forced Marriage Practitioner Guidance - update 2014

23. Appendix: Domestic violence^[92] provisions in the immigration rules

Domestic violence perpetrated by a British citizen/settled person

A woman may have permission to reside in the UK because she is in a relationship with a man who is a British Citizen or has permanent residence in the UK (sometimes called Indefinite Leave to Remain). Initially, this woman will be granted a residence permit for a probationary period which will not give her access to public funds. At the present time, the probationary periods are as follows:-

• 2 years if the woman applied before 9 July 2012
• 5 years if the woman applied after 9 July 2012 issued in blocks of 30-month residence permits

If the woman can show that the relationship broke down permanently within the probationary period because of domestic violence then she may be able to make an application to remain in the UK permanently on production of certain evidence.

Before making this application, the woman can apply for a three month residence permit under the Domestic Violence Concession which gives her access to public funds.

Domestic violence perpetrated by European Economic Area [EEA] national

A woman may have permission to live in the UK because she is in a relationship with a man who is an EEA national. If this relationship permanently breaks down because of domestic violence, she may be able to apply to remain in the UK in her own right (called a retained right of residence) provided a series of conditions are met.

A woman's access to public funds in this situation depends on the underlying factual circumstances of the case.

Dependants

A woman may have permission to live in the UK as the dependant of her spouse/partner who may be in the UK studying, working or in another category (such as refugee).

A woman may also be in the UK on a 10-year route to settlement because she could not meet the conditions for the 5-year probationary permit or other family migration category.

If the relationship breaks down permanently because of domestic violence, it is likely that the woman will require to apply to remain in the UK in her own right. She may have various routes open to her depending on her circumstances but legal advice must be taken.

International protection/human rights

Depending on the circumstances, a woman may be able to remain in the UK because she would be at risk of persecution/serious harm in her home country. There may be other human rights considerations as to why she should remain in the UK.

Forced marriage and violence within the family/community are forms of gender-based violence recognised by the Home Office as being able to found a request for protection within the UK. See the Home Office policy on gender issues in the asylum claim at:

www.gov.uk/government/uploads/system/uploads/attachment_data/file/257386/gender-issue-in-the-asylum.pdf

Human trafficking

There is a National Referral Mechanism in Scotland to support victims of human trafficking. For more information see: www.gov.uk/government/uploads/system/uploads/attachment_data/file/181550/Human_Trafficking_practical_guidance.pdf

If an individual is subject to immigration control and is identified as a victim of human trafficking then a renewable one year residence permit may be granted in certain circumstances.

If an individual is in the process of being identified then they will be entitled to accommodation and other material assistance.

For information on safeguarding children who may have been trafficked see: www.scotland.gov.uk/Resource/Doc/219212/0058832.pdf

No recourse to public funds

A woman may not qualify for public funds because of her immigration status.

Public funds are specifically defined within immigration legislation and can be a complex area. Further guidance is on the Home Office website: https://www.gov.uk/government/publications/public-funds--2/public-funds

This prohibition does not apply to legal assistance.

Depending on the circumstances of each case, it may be possible to access other avenues for accommodation and support such as through social services, the Domestic Violence Concession or from the Home Office.

A woman's entitlement to remain in the UK and her access to support and assistance should always be checked and legal advice taken. The Law Society of Scotland can help with finding a legal representative. The Scottish Refugee Council also has lists of legal advisers who can assist in Glasgow and Edinburgh: www.scottishrefugeecouncil.org.uk/how_we_can_help/i_am_still_waiting_for_a_decision_on_my_asylum_claim/legal_representation

Applicants need to submit as much information and evidence as possible to support the application: www.gov.uk/settle-in-the-uk/y/you-re-the-family-member-of-a-british-citizen/no/on-a-work-visa/tier-5

These include:

• A court order in connection with the domestic violence
• Evidence of a Multi-Agency Risk Assessment Conference (MARAC) being convened on the applicant's behalf
• A medical report from a hospital doctor confirming that the applicant has injuries consistent with being the victim of domestic violence, and/or a letter from a GP who has examined the applicant and is satisfied that the applicant has injuries consistent with being a victim of domestic violence
• An undertaking given to a court that the perpetrator of the violence will not approach the applicant who is the victim of the violence
• A police report confirming attendance at an incident resulting from domestic violence
• A letter from a social work department confirming its involvement in connection with domestic violence
• A letter of support or a report from a domestic violence support organisation

The application should be made on a current SET (DV) Form version (application for indefinite leave to remain as a victim of domestic violence): https://www.gov.uk/settle-in-the-uk/y/you-re-the-family-member-of-a-british-citizen/no/on-a-work-visa/tier-5

Further information:

Immigration enquiries: www.gov.uk/contact-ukvi