1. Introduction

Domestic violence is not a thing of the past; unfortunately there are thousands of cases of domestic abuses where people are victimised by the more dominant participant in a marriage or relationship. The reasons might be financial, social, cultural, moral or religious, but these factors do have the capability to turn an exciting phase of one`s life into a thoroughly unpleasant experience.  Although these incidents are dealt with very robustly in the UK, the number of  incidents of this type is still on the rise.

The UK Border Agency (UKBA) has provided an option to victims of domestic violence who leave their countries of origin to live with their partners / spouses in the UK, to make an application for continued legal residence in the UK. It would thus be appropriate to discuss the  relevant aspects of this type of case under the following headings:

2. What is Domestic Violence?

Definition of Domestic Violence:

"Any instance of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults who are or have been intimate partners or family members regardless of gender or sexuality".

Definition of Injury (legal):

"Any harm done to a person by the acts or omissions of another."

The above definitions serve as guidance to UKBA in order to assess whether domestic violence has been perpetrated against an applicant.

3. Who can apply?

Only the following persons can make an application for indefinite leave to remain/settlement as the  victims of domestic violence:

1.     Spouses / unmarried partners / civil partners of a person present and settled in the UK

2.     Spouses / unmarried partners/ civil partners of an EEA national exercising treaty rights in the UK

4. Who cannot apply?

The following persons are not entitled to make an application for settlement even if they can establish beyond any doubt that they have been the victims of domestic violence:

1.     Fiancés/ proposed civil partners of a person present and settled in the UK

2.     Fiancés / proposed civil partners of EEA nationals exercising treaty rights in the UK

3.     Spouses / unmarried partners / civil partners of a person having limited leave to remain in the UK

4.     Spouses / unmarried partners / civil partners of a person seeking asylum in the UK

5. The remedy available to victims of domestic violence

The remedy available to the victim of domestic violence who is a spouse / unmarried partner / civil partner of a person  present and settled in the UK is application for indefinite leave to remain/settlement. If he / she fulfils all the criteria of the immigration rules by providing the required documentary evidence and complying with the relevant regulations, he or she would be given Indefinite leave to remain in the UK.

In the case of a victim of domestic violence who is a spouse / unmarried partner / civil partner of a person exercising treaty rights in the UK, he / she is will be allowed to retain his / her right of residence in the UK. On completion of a total of 5 years’ legal residence (under the EEA regulations) in the UK, the applicant would then be able to make an application for permanent residence in the UK.

6. Spouses / Unmarried Partners / Civil Partners of persons present and settled in the UK

In this type of case, the applicant must have been admitted, or given an extension of stay, for a period of 24 months as the spouse / unmarried partner / civil partner of a person present and settled in the UK and their relationship must have subsisted for at least the initial period of the applicant`s stay as spouse / unmarried partner / civil partner.

In addition to the above, the following factors must also be noted:

• The applicant should no longer be living with his / her settled spouse
• The domestic violence must have occurred during the 2 year probationary period and whilst the marriage was subsisting
• The domestic violence was the only or main reason for the breakdown of the marriage / relationship
• The applicant can apply together with any of his / her dependants who are not already British Citizens
• The applicant must provide good documentary evidence to establish that he/she is a victim of domestic violence, such as a court order or conviction against the settled spouse / partner, an injunction, non- molestation order, police caution, medical report, letter from social services or similar
• An application can also be made in respect of domestic violence incurred by a family member of the settled spouse / partner from whom the spouse did not offer any protection

7. Spouses of EEA nationals exercising treaty rights in the UK

The applicant must either have a residence card in line with his / her EEA national spouse / partner who is exercising treaty rights in the UK or provide evidence that he / she resided together with the EEA national partner / spouse who is exercising treaty rights in the UK.

In addition to the above, the following factors must also be noted:

• The applicant should no longer be living with his / her EEA national spouse / partner.
• The domestic violence must have occurred during the subsistence of their relationship and while the EEA national was exercising treaty rights.
• The domestic violence was the only or main reason for the breakdown of the marriage / relationship.
• The applicant has to qualify as a worker or self employed person or a self-sufficient person to qualify  to continue enjoying retention of the right of residence.
• If the applicant is a student then he / she will not qualify unless he / she is a student with sufficient resources to be self-sufficient.
• The applicant can apply together with any of his / her dependants who are not already British Citizens or EEA nationals.
• The applicant must provide good documentary evidence to establish that he/she is a victim of domestic violence such as a court order or conviction against his / her settled spouse / partner, an injunction, non- molestation order, police caution, medical report, letter from social services or similar.

Conclusion

Although the remedy provided to the above two categories of applicants are different,  the intention of UKBA is to convey the message to the victims of domestic violence that they would not be abandoned, if their partners or spouses choose to make use of force / threatening behaviour / other non-acceptable acts / omissions that amount to domestic violence.