Home Office approach to evidence of domestic abuse

Domestic abuse is a serious infringement of someone’s rights. While most often perpetrated against women, it can affect people from any background and part of society. Migrants can be particularly vulnerable and unwilling to seek help because of their precarious status in the UK.

What is domestic violence and abuse?

Home Office guidance confirms that the definition of domestic violence is as per the one in the Domestic Abuse Act 2021. It involves:

any single incident or pattern of conduct where someone’s behaviour towards another is abusive and where the people involved are aged 16 or over and are, or have been, personally connected to each other (regardless of gender or sexuality).

The guidance goes on to make it clear that domestic violence and abuse go beyond physical or sexual violence – emotional abuse, financial abuse, controlling behaviour, or threats of violence also count.

Another point to take from the definition is that the behaviour need not come from the victim’s partner and can be from relatives including – but not limited to – parents, siblings and in-laws.

Lastly, the guidance and official definition make it clear that a person may be a victim of abusive behaviour if the conduct is directed at another person, for example their child. Similarly, a child who witnesses abuse towards a relative is also a victim of domestic abuse in their own right.

Who can apply?

Simplifying slightly, migrants who are in the UK as the spouse or partner of a British citizen, a member of the armed forces, someone who is settled, someone with leave as a refugee, or an EEA national with pre-settled status can apply for permission to stay as a victim of domestic abuse (even if their visa has expired). In addition, those whose last leave was granted under the Migrant Victims of Domestic Abuse Concession – discussed further below – and whose leave before then was in one of the above categories, are also eligible.

Fiancé(e)s – those in the UK to marry a British or settled citizen who have not yet swapped to having leave as a partner – will not qualify for leave under the rules. Although the guidance does confirm that the Home Office may grant leave outside of the rules in some circumstances, including – but not limited to – when:

a perpetrator of abuse used the applicant’s immigration status as a form of controlling behaviour, deliberately ensuring that they were not on a route to settlement, or that they were on a longer route to settlement (for example: a perpetrator prevents an applicant from switching from permission as a fiancé or proposed civil partner to permission as a spouse or civil partner)

The Migrant Victims of Domestic Abuse Concession (MVDAC)

A victim of domestic abuse who is working may be able to escape the situation by moving elsewhere and supporting themselves while making an application to stay in the UK.

Those without the means to do this are likely to flee to a refuge to escape the family home. After a short while it will become necessary to apply for benefits (‘public funds’) to access support and accommodation. Most people have a ‘no recourse to public funds’ condition attached to their leave, or they may not have extant leave, so they cannot access benefits or housing support. The Home Office has recognised this can leave victims of domestic abuse destitute.

As a result, it is possible to apply for short-term leave under the migrant victims of domestic abuse concession. This concession grants temporary permission to access public funds. Many migrants who are victims of domestic violence will apply for this concession as a first step.

To be successful an applicant must show that:

• they have been granted leave to remain as a partner. Importantly, this is not limited to partners of British or settled citizens, but include partners of people with permission on a work route or student route and partners, including fiancé(e)s, under Appendix Ukraine Scheme
• the relationship has broken down as a result of domestic violence
• they require a short period of permission independent from their partner
• they want the option to apply for access to public funds

In practice, so long as the applicant has the correct type of leave, the Home Office does not, at this stage, need evidence that the relationship broke down as a result of domestic abuse, nor do they need evidence of the applicant’s financial position.

Home Office approach to evidence of domestic abuse

The guidance sets out types of evidence which may be produced by applicants. It also indicates the weight that Home Office caseworkers should give them. It is important to pay close attention to the exact wording for the type of evidence relied on.

The caseworker must consider evidence ‘in the round’. This can be contrasted with looking at each piece of evidence in isolation. Put simply, they must look at the overall picture presented by the evidence. Then they must decide if it is more likely than not that the relationship broke down permanently as a result of domestic abuse.

In applications made from outside the UK, evidence is still considered in the round. However, a lower standard of proof applies. Transnational marriage abandonment is itself a form of abuse and must be shown to a ‘reasonable degree of likelihood’.

Conclusive evidence

Conclusive evidence is the best type of evidence that can be presented. When available, it will determine the issue of whether the applicant was a victim of domestic abuse. The most straightforward are where:

• The perpetrator has received a criminal conviction which relates to domestic abuse, or accepted a police caution.
• The Crown Prosecution Service has decided to charge the perpetrator with an offence which relates to domestic abuse.
• A civil court has made a finding of fact that domestic abuse occurred, or the perpetrator has made an admission during proceedings. Note that the permission of the court may be required to disclose documents from family proceedings.
• The applicant provides a valid Domestic Violence Protection Order or Domestic Abuse Protection Order relating to them. These court orders usually follow an initial notice issued by the police, who then apply for an order. 

The logic in treating each of these as conclusive is that another decision maker has already made a conclusion based on the same, or a higher standard of proof. A further situation may be conclusive where a ‘multi-agency risk assessment conference’ referral has been made.

It is sufficient for the referral to be confirmed by a member of the conference. This is because full reports may not be available or disclosable. However, unhelpfully, some knowledge of the contents is required. Confirmation that the case was rated ‘high risk’ or the applicant is otherwise in imminent danger will be sufficient.

Some forms of temporary protection will not count as conclusive evidence. For example, where the police have issued a Domestic Abuse or Domestic Violence Protection Notice, but not succeeded in obtaining the associated court order. In this case, decision makers are told they may seek additional information from the police.

Similarly, where a court has granted an ‘ex parte order’ without hearing from the alleged perpetrator. Here, decision makers must obtain the details of any further developments. In both cases, the notice or ex parte order will not be enough on its own.

Personal statement from the applicant

A detailed statement from the applicant setting out their experiences should always be included where it is possible to obtain one. In some cases, this may be the only evidence an applicant is able to provide. The guidance is clear that an account from the applicant alone may be sufficient:

provided it is reasonably detailed, consistent and plausible…particularly where persuasive reasons are given for the absence of further or other evidence.

It often takes time for victim-survivors to fully disclose their experiences. Where it is not possible to provide a full statement before the biometric appointment, it can be submitted later when available.

Other evidence: general approach

If none of the above categories of ‘conclusive’ evidence are available, in addition to the applicant’s statement, consider people who have supported or assisted the applicant. They are all allowed to provide supporting evidence.

The strongest evidence will be letters or reports which come from domestic abuse, social work and medical professionals. They must have assessed the applicant and be willing to express an opinion that the person has experienced domestic abuse. Their evidence is given the greatest weight when they are seen as suitably qualified, independent and not relying solely on the applicant’s account.

However, other people can also give supporting evidence. This will be given more weight when they witnessed the abuse first hand and have no personal stake in the case. However, evidence from people who observed indirect indicators of abuse must still be considered. This is still the case even where they are closely connected to the applicant.

The guidance gives examples of other documentary evidence applicants might provide. This includes non-conviction information from the police,  letters from official sources which record the applicant’s account, and messages or photos provided by the applicant. It is beyond the scope of this explainer to go through all of the possible evidence types.

In general, this evidence has limitations and will rarely be enough on its own, but can bolster other evidence. Records of contemporaneous complaints can help support the overall account (e.g. a pattern of police reports, disclosures to a professional, or even a trusted friend).

Detailed guidance on how ‘compelling’ specific type of evidence will be

Letters from social services can be accepted as ‘compelling’ evidence. The letter must confirm ‘that social services have assessed the applicant themselves and has the experience to consider them a victim of domestic abuse’. Any previous reports or assessments completed by social services are likely to include accounts of domestic abuse. However, often they will not state clearly that they consider the applicant a victim.

A further letter stating this, setting out their experience, enclosing previous assessments and detailing any further support being provided should ensure their evidence is treated as compelling. There is a small, helpful change in the wording of the guidance here. Previously, the letter had to come from the person who had assessed them. This is no longer the case. Where social workers change, this could be the new social worker or a senior manager.

Medical evidence can also be considered compelling, or even conclusive. The best evidence will come in the form of a letter of report which confirms injuries or conditions consistent with domestic abuse or reveals a pattern of injuries or reports from the applicant about domestic abuse. The letter should be written by the professional who provided the consultation and include details of any treatment needed.

In practice, it can be quite hard to obtain evidence in this precise format. It may prove impossible to track down a locum doctor who treated the applicant in A&E. The GP surgery may have a practice that all letters requested are written by a GP assigned that duty for the day. Do consider other medical professionals that are treating the applicant. Check what the applicant has disclosed to each of them to work out who might be best placed to provide a report.

Recent updates to the guidance place a greater emphasis on medical records. They also highlight that victims may suffer medical problems but not disclose that these are related to domestic abuse. Where there were medical complaints occurring alongside the abuse, corroborating entries in medical records should be highlighted as corroborating.  

There is an addition to the guidance regarding psychiatric reports. It states that ‘psychiatrist reports will be less compelling when it only consists of a one-off session that simply reflects the applicant’s account.’ Evidence of follow up appointments or ongoing support is to be given more weight. This is of some concern, as it has the potential to undermine independent psychiatric reports obtained to support these applications.

Where a psychiatrist has only assessed an applicant once, their report should highlight that their conclusions are based on more than just the applicant’s account. They can highlight that they have considered the applicant’s GP medical records, or other information and explain how it has informed their assessment. They can refer to diagnostic tools and criteria that they have applied in reaching a diagnosis. They can set out their expertise in working with traumatised victims, comment on the applicant’s presentation and the clinical plausibility of their symptoms. Beth’s article on medico-legal reports touches further on this here.

Counter allegations

Where there is a counter allegation, Home Office caseworkers must refer to the recently expanded section of the guidance. Counter allegations refer to any information that challenges or contradicts the applicant’s account of domestic abuse. They include denials and can come from the sponsor directly, but also from official records.

The guidance recognises that ‘counter allegations are a common tactic used by perpetrators to maintain power and control’. It also takes the view that the idea of ‘toxic’ relationships is unhelpful and that mutually abusive relationships are very rare. In most domestic abuse cases, one person is the primary perpetrator, while the other is primarily resisting, responding, or trying to protect themselves. 

The guidance now goes into much more detail on how caseworkers should satisfy themselves, to the relevant evidential standard, whose account is more credible. This takes into account the same categorisation of evidence set out above.

Where the applicant presents conclusive evidence, the counter allegation should be disregarded. The guidance is unclear on what would happen if both parties were able to present such evidence – it says to contact a policy team.

Counter allegations should also be disregarded if the applicant reaches the evidential threshold and the counter allegation provides only a personal statement.

In other situations, caseworkers are directed to focus on assessing the strength and credibility of the applicant’s account. They should verify references to contact with the police, social services and other agencies. They can only take into account information that those public bodies have consented to being disclosed.

Where a caseworker is minded to refuse an application, in whole or in part due to a counter allegation, they must give the applicant a meaningful opportunity to respond.

Unavailable evidence

Sometimes, there is an insurmountable obstacle to obtaining key documentary evidence. In these circumstances, consider explaining why certain evidence could not be obtained. If this is wholly or partly due to the actions of the perpetrator or the nature of the abuse, make this clear. Draw the caseworker’s attention to the relevant part of the guidance:

‘Throughout this process of engagement with the applicant, you may exercise discretion in their favour where appropriate, to minimise administrative burdens and show sensitivity towards vulnerable applicants. Consideration should be given to any reasons provided for a lack of documentary evidence, in particular where any reasons given arise from or otherwise relate to the abusive relationship the applicant is or was in and consideration should be given to exercising discretion to accept the applicant’s eligibility on the evidence available.’

Children

Dependent children can apply with or after their parent who is also applying for settlement as a victim of domestic abuse. For their application to be successful, they must show that they meet the relationship, care, age and independent life requirements of Appendix Children. In summary, they must show that:

• they are applying at the same time, or after, their parent is applying for leave as a victim of domestic abuse
• they are under 18 or were under 18 when they were last granted permission as a dependent child
• they are not leading an independent life
• there are suitable arrangements for their care and accommodation in the UK

Importantly, as the rules are currently written, children cannot apply in their own right, for example if they were escaping an abusive household alone. The guidance does confirm, however, that in these circumstances ‘consideration should be given to whether they should be granted leave outside the rules, taking into account the Secretary of State’s obligations under section 55 of the Borders, Citizenship and Immigration Act 2009’.

Human rights and right of appeal

An application under the domestic abuse rules is not automatically a ‘human rights application’. This is quite a technical point for non-lawyers, but what it means is that there is not an automatic appeal to a judge if the application is refused. Instead, refused applications only attract a right to administrative review and, of course, judicial review.