Domestic Violence: Right to Stay
In the cases where relationship between dependant of spouses, civil partners, unmarried and same-sex partners of a person settled in the UK or of an EEA national, exercising Treaty Rights in the UK, breaks down as a result of the domestic violence, and basis of their stay is jeopardised, they may apply for a right to stay.
In the cases where partners are settled person in the UK, the victims of domestic violencewould be given indefinite leave to remain in the UK provided they, fulfil all the criteria of the Immigration Rules and provide the required documentary evidence.
Applicants who are family members of EEA nationals and cease to be family members of the termination of a marriage or civil partnership owing to domestic violence are allowed to retain a right of residence in the UK provided they provide the required documentary evidence and fulfil the requirements of the EEA Regulations. The applicants in such cases, on completion of a total of 5 years’ legal residence (under the EEA regulations) in the UK, he is eligible to make an application for permanent residence in the UK.
What is Domestic Violence –
"Any instance of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) of partner by the other partner who have been intimate partners or family members regardless of gender or sexuality".
Family members include: mother, father, son, daughter, brother, sister, grandparents, in-laws or step-family.
Domestic Violence by a family member of the partner where the partner has not intervened to offer any help of protection is also actionable and the victim can make an application under the law.
"Any psychological, physical, sexual, financial or emotional harm done to a person by the acts or omissions of another."
This definition serves as guidance to the UKBA to determine whether domestic violence has been perpetrated against an applicant.
Who can apply?
The following persons can make an application for a right to stay in the UK as the victims of domestic violence:
1. Spouses, civil partners, unmarried or same-sex partners of a person present and settled in the UK.
2. Spouses, civil partners, unmarried or same-sex partners of an EEA national exercising Treaty Rights in the UK.
Those who do not qualify and cannot apply
The following persons are not eligible to make an application for settlement even if they have been the victims of domestic violence:
1. Fiancés and proposed civil partners of a person present and settled in the UK
2. Fiancés and proposed civil partners of EEA nationals exercising treaty rights in the UK
3. Spouses, civil partners, unmarried or same-sex partners of a person having limited leave to remain in the UK
4. Spouses, civil partners, unmarried or same-sex partners of a person seeking asylum in the UK
Spouses, Civil Partners, Unmarried Partners, Same-sex partners of persons present and settled in the UK
The applicant in such cases must have been admitted to the UK or given an extension of stay for the probationary period (30 months) in their capacity of spouse, civil partner and unmarried or same-sex partner of the person present and settled in the UK. No doubt their relationship should have been subsisting at the beginning of the applicant`s stay.
Following also need to be satisfied:
- The applicant should no longer be living with his/her spouse settled in the UK.
- The domestic violence must have taken place during the probationary period (of stay) when the relationship was subsisting
- The domestic violence was the solecause for the breakdown of the relationship
- The application must accompanymandatory documentary evidence such as a court order, an injunction, a non-molestation order, police cautions, medical reports or letters from social services or domestic violence support groups or conviction order against his/her partner settled in the UK to prove that he or she is actually and factually a victim of domestic violence.
While submitting application, the applicant can also apply for any of his or her dependants who are not British Citizens.
In the cases where Spouses of EEA nationals exercising Treaty Rights
Following two conditions are to be satisfied in such cases:
1. The applicant must have a Residence Card like his or her EEA national spouse/partner who is exercising Treaty Rights in the UK.
2. The applicant must provide evidence that he or she has been residing together with his/her EEA national spouse/partner who is exercising Treaty Rights in the UK.
In addition to the above, the following must also be satisfied:
- The applicant who is a victim of domestic violence ought to have been separated by a decree from his or her EEA national spouse/partner
- The marriage or civil partnership must have terminated the facilities enjoyed by the victim of domestic violence Treaty Rights which the EEA national must have been exercising at the time of the termination (Decree Absolute).
- The domestic violence must have occurred during existence of their relationship and while the EEA national was exercising Treaty Right.
- The applicant shall not be allowed to take recourse to the Public Funds and has to qualify as a worker, self-employed person or a self-sufficient person to enable him to retain a right of residence. If the applicant is a student he should be having sufficient resources to be self-sufficient.
The applicant can apply along with his or her dependants, if any, and who are not British Citizens or EEA nationals.
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