Immigration options for victims of domestic violence

Immigration options for victims of domestic violence

• Taffy Nywanza: Implications of UK asylum decison

• Taffy Nyawanza: The right to family life

• Taffy Nyawanza: New UK changes to managed migration

• Taffy Nyawanza: UK immigration rules on marriage, domestic servants

• Taffy Nyawanza: Switching from work permit to indefinite stay

• Taffy Nyawanza: Immigration and you

• Taffy Nyawanza: Makosi and the real Big Brother

By Taffy Nyawanza

THIS week, I received a heart-wrenching e-mail from an anonymous writer.

She has a brute of a live-in partner who is a British citizen. He makes strange conjugal demands and bashes her regularly. Her biggest worry however is the constant threats that he will have her sent back to her native Zimbabwe. She wanted to know what her options for remaining in the UK are.

Domestic violence is sickening. Its victims live in a dark trap of fear and torment. If the victim is an immigrant with scant knowledge of the law, the situation can be very dire. As it happens, many women from the black and ethnic minority communities suffer in silence because of the additional problems of language and cultural barriers and often a perilous immigration status. I am glad this woman has taken the big step of confiding on this forum.

Rule 289A of the HC Rules HC 395 provides a route by which victims of domestic violence can obtain legal immigration status. This rule, referred to as the ‘Domestic Violence Immigration Rule’ was a major concession made by the Home Office in 1999 and incorporated into the Immigration Rules in 2002. It came into being as a result of the concerted lobbying by the Southall Black Sisters, a not-for-profit organisation which works towards improving the plight of ethnic minority women who are subjected to violence at home. According to them, around 600 immigrant women are battered by their partners every year.

Rule 289A therefore makes it easier for them to stay in the UK without being trapped in an abusive relationship. Before its introduction, a woman who suffered domestic violence during what is known as the probationary period had a tough choice of either enduring the violence because of her perilous immigration status, or leaving the brute but become an illegal immigrant.

So how does Rule 289A work? A person applying under Rule 289A must first show that she is a spouse or an unmarried partner of a person settled in the UK. Common law spouses, being those who have been living together for a number of years but have never been legally married according to the laws of the country in which they live, are not recognised in the UK’s immigration rules as spouses. They may however qualify under the ‘partner rule’.

A partner is defined for the purposes of the immigration rules as someone with whom the settled sponsor has lived in a relationship ‘akin to marriage’ for two years or more (four years where the sponsor has the right of abode or is on indefinite leave to remain). In liberal UK, the bane of Mugabe, they can even be of the same sex to the sponsor.

A spouse application however, is only possible where the spouse and the UK sponsor (the UK-based spouse) are over the age of 18 at the time of the spouse’s entry to the UK. The spouse must not be married to anyone else and no other person must have lived in or entered the UK as the sponsor’s spouse (subject to certain limited exceptions). For unmarried partners, any previous relationship must have ended. Additionally, the relationship must not be consanguineous, which is one between people of the same blood such as first cousins.

In the case of the writer, she will need to show that she entered the UK as the sponsor’s unmarried partner, or that she had her visa extended for a period of 2 years as his unmarried partner. She would have been admitted for a 2 year probationary period, during which time she must not have had recourse to public funds. Public funds include access to public housing and most welfare benefits.

At the expiry of the probationary period, she would have been able to apply for Indefinite Leave to Remain (ILR) if the relationship had not broken down. As it is, she will now need to make an application under Rule 289A, subject to the following requirements;

• that she was admitted to the United Kingdom or given an extension of stay for a period of 2 years as the unmarried partner of a person who is settled in the UK. (On arrival in the UK, a spouse or unmarried partner will be granted two years of leave to enter and remain. This is the probationary period).

• she must be able to produce such evidence as may be required by the Secretary of State to establish that the relationship has permanently broken down before the end of the probationary period as a result of domestic violence (a court conviction, a prohibition order, an order of divorce, medical evidence, social services records or reports from women’s refugee groups should suffice).

These somewhat stringent requirements are meant to be safeguards against ‘sham marriages’ by people who may want to circumvent UK immigration controls.

Unfortunately, a person who is subject to immigration control and leaves her partner or spouse during the probationary period as a result of domestic violence is not allowed access to public benefits. This presents real problems because of the length of time involved in making an application under Rule 289A. Without access to public funds, a woman who leaves her partner or spouse due to domestic violence risks becoming destitute. This often prevents many victims from leaving abusive situations for fear of destitution and thus rendering the Domestic Violence Rule ineffective. Women’s groups allege that this is discriminatory and a breach of the UK Government's human rights obligations.

The UK government justifies its tough stance on the basis that to allow an exception would undermine the integrity of the immigration and benefits rules. It maintains that the Social Services, or charities such as the Women’s Aid’s Last Resort Fund may be able to assist in exceptional circumstances.

On a related topic, if a woman’s UK sponsor dies during the probationary period, an application for Indefinite Leave to Remain can still be made by the spouse or the unmarried partner, providing she can show that the relationship was still ongoing at the time of death. The relevant rules are Rule 287(b) for bereaved spouses and Rule 295M for bereaved unmarried partners.

After the woman has completed the probationary period and switched to stay permanently in the United Kingdom as the spouse of a settled person, her immigration status is no longer dependent on her being married. Hence, if a divorce takes place later, her entitlement to remain in the United Kingdom is not affected by the divorce.

In case the divorce happened before the completion of the first 12 months in the United Kingdom, the woman’s initial permit is not affected, either. This means, the divorce doesn’t make her stay illegal.

The question becomes, what about abused women married to persons who have limited leave to remain in the UK? The short answer is that there is no provision in the rules for them unfortunately. If they do not qualify under other rules, their only other avenues (and these are not at all easy to establish) would either be the asylum route, the Human Rights provisions, or the discretion of the Secretary of State on compassionate grounds, which is always the last resort.
If you think you may benefit under these rules, you will need to obtain the services of a specialist.

I will end with a reminder. There have some important procedural changes with respect to applications for leave to remain. As readers will remember, anyone applying for an extension of stay or indefinite leave to remain, or requesting the transfer of leave fixed to a passport or travel document, is required to complete an application form and pay the prescribed fee. Application forms for all such applications have changed with effect from 15 September 2005. Applications made on the old forms on or after 15 September 2005 will be invalid.

It is extremely important that you use the correct form otherwise your application will be rejected as invalid and this will affect any appeal rights you may have if you no longer have leave to enter or remain in the UK by the time you make a valid application.

The new form requires, amongst other things, applicants who have had absences outside the United Kingdom to enter the date of those absences in spaces provided on the application form and explain the reasons for the absences. The form requires that the applicant should attempt to list all absences if they are able to do so, however short they may have been. However, an applicant should definitely list and explain all absences of 3 months or more.

That is the nature of immigration rules and procedures. They change faster than the leader of the Tory party.

Taffy Nyawanza is accredited by the OISC and writes in his personal capacity. He can be contacted at profettaffy@yahoo.co.uk

Disclaimer: This article only provides general information and guidance on immigration law. It is not intended to replace the advice or services of a solicitor. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of the use of this information
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