As addressed in part 1 of this three part series, the collaboration, campaigning and strategic litigation brought by a coalition of actors supporting victims of domestic violence, led to the landmark ruling of AM v SSHD [2022] EWHC 2591 (Admin), which found that the previous Immigration Rules relating to victims of domestic violence were unlawful as they discriminated against victims outside of the UK.
Following this High Court decision, as part of recent changes to the Immigration Rules, the Home Office introduced Appendix Victim of Domestic Abuse ('Appendix VDA') and updated the associated guidance, which came into effect on 31 January 2024. This new appendix enables victims of domestic abuse who have been abandoned overseas to apply for settlement from outside the UK.
This three-part series provides an overview of the different applications for leave that can be made as a victim of domestic violence. The first article considered the updated requirements for victims of domestic violence to apply for leave from within the UK. This second article will address victims of domestic violence applying for indefinite leave to enter from outside the UK. The final article will consider the position for EU, other EEA and Swiss citizens and family members, pursuant to Appendix EU.
Overview of Requirements for Indefinite Leave to Enter as a Victim of Domestic Violence From Outside the UK
In order to apply for indefinite leave to enter the UK from outside the UK pursuant to Appendix VDA, an applicant must meet the following requirements:
- Validity requirements;
- Suitability requirements; and,
- Eligibility and Relationship requirements.
These will be addressed in turn below.
Validity Requirements for Entry Clearance as a Victim of Domestic Violence From Outside the UK
In order to make a valid application from outside the UK under Appendix VDA, an application for entry clearance must be made using the correct online application form.
A child of a victim of domestic abuse can also apply for leave under this appendix as will be addressed in a future article. Each applicant requires their own application, including children who are applying at the same time as their parent, although they do not need to complete the sections on the form regarding the abuse if completed by their parent on their own form.
The validity requirements are similar to those for other applications: the application fee must be paid, unless a fee-waiver has been granted, biometrics should be provided and a copy of the applicant's passport or other identity document which establishes their identity and nationality should be provided, unless excused or an exception applies.
An application that does not meet these requirements may be rejected as invalid. Please note that discretion can be exercised to treat an application as valid even if an applicant has not provided a passport or other document.
Suitability Requirements for Entry Clearance as a Victim of Domestic Violence From Outside the UK
The applicant must not fall for refusal under Part 9: grounds for refusal.
The Home Office guidance specifies that due to the importance of safeguarding vulnerable victims, the suitability guidance on each of the grounds of refusal that may apply should be considered. Only issues that have arisen since a last grant of permission should be considered. Where an applicant does not fall for refusal under criminality grounds, criminal convictions related to domestic abuse experienced must not be considered in an assessment of whether an applicant's presence is not conducive to the public good.
Particular regard should be had to where the possible grounds for refusal directly relate to, or are connected to domestic abuse. Discretionary grounds may not be applied where an applicant's ability to meet the requirement is impacted by the domestic abuse they experienced.
Paragraph 9.8.4.(a) of Part 9, states that a person will be treated as having previously breached immigration laws, if when at least 18 years old, they overstayed their permission, breached a condition attached to their leave in the UK and further leave was not granted, were/are an illegal entrant and/or used deception in relation to an application. Please note that paragraph 9.8.4.(a) does not apply to applications made under Appendix VDA. This is because passport and immigration documents may be controlled by the abuser and the victim may be unaware of their status.
Eligibility and Relationship Requirements for Entry Clearance as a Victim of Domestic Abuse From Outside the UK
Eligibility Requirements
Where the applicant is outside the UK, they must apply for and obtain entry clearance on the Victim of Domestic Abuse route before they arrive in the UK. They must provide a valid tuberculosis test certificate if Appendix Tuberculosis (TB) applies.
The applicant must have, or have last been granted permission as either:
- A partner under Appendix FM of a person who is a British citizen, settled in the UK or with settled or pre-settled status under the EU Settlement Scheme;
- A partner under Appendix EU with limited leave to enter as a family member, as a joining family member or as a family member with a retained right of residence;
- A partner under Appendix FM, Part 11 of Appendix Family Reunion (Protection) of a person with permissions as a refugee;
- A partner of a person present and settled in the UK under paragraph 285 or 295E of Part 8;
- A victim of domestic abuse under Appendix FM;
- A partner under Appendix Armed Forces or Part 7 of a British citizen or relevant member of HM Forces;
- Leave outside the rules granted under the Migrant Victims of Domestic Abuse concession and before that were last granted permission as above.
Partner includes spouses, civil partners and unmarried partners but not fiancé(e)s nor proposed civil partners.
An applicant does not need to have valid permission in the UK, if they previously had permission as specified above, prior to the relationship breaking down as a result of domestic abuse. Preventing a victim of domestic abuse from applying for leave may be part of abusive behaviour experienced by a victim.
Following AM v SSHD, this route has been updated to enable victims of domestic abuse who have been abandoned overseas to apply for settlement outside of the UK. Therefore, a person applying from outside the UK must have been abandoned or stranded. The guidance recognises that such victims are more likely to be vulnerable and face additional barriers to applying with potentially limited access to support services and assistance, as addressed in more detail below.
In certain circumstances, an applicant may be granted settlement outside the rules, even though their most recent leave was not as specified above, for example where an applicant is a victim of transnational marriage abandonment and they made an application for entry clearance before the introduction of this route and so were granted a different form of leave such as a visitor visa, leave outside the rules or permission as a parent.
Individuals who have not held leave as above may alternatively be able to apply under Appendix EU or make an application on the basis of their family and private life under Article 8 of the European Convention on Human Rights or for leave outside the rules.
Relationship Requirements
The relationship between the applicant and their partner must have broken down permanently as a result of domestic abuse which they have been subjected to by their partner or by a directly related family member, such as in-laws or stepfamily members, or alternatively, if the abuser is a partner or family member who is abusing another family member in the same household.
Domestic abuse is defined 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. Abuse can be:
- Psychological;
- Physical;
- Sexual;
- Financial;
- Emotional;
- Violence;
- Threatening;
- Controlling;
- Coercive behaviour.
Transnational marriage abandonment is a type of domestic abuse which involves controlling and coercive behaviour. It is where a person is abandoned or stranded abroad by their partner or family member(s), usually without financial resources. It may involve children who are either abandoned with or separated from the abandoned person.
The objective of transnational marriage abandonment is usually to prevent the victim's return to the UK to punish them or exert greater control over them, including by preventing them from exercising their residence rights, matrimonial rights, right to report a crime, child care and custody rights etc.
The perpetrator will often mislead the victim about the intention of the travel and their travel documents will usually be removed from their possession. The perpetrator often contacts the Home Office to cancel the victim's leave or delays the victim's return to the UK so that their leave expires. These factors are included in the non-exhaustive list of indicative features of cases of transnational marriage abandonment in the Home Office's guidance.
Where an applicant is a victim of transnational marriage abandonment, the breakdown of the relationship due to domestic abuse will be assessed to a reasonable degree of likelihood. This is a lower standard of proof than the balance of probabilities, which is the usual standard for applications, including for applications made on this route from inside the UK.
This lower standard is applied to take into account the applicant's future life, their safety being at risk and the fact that they may not be able to obtain and produce evidence in the same way as in-country applicants due to the circumstances of their departure from the UK. Delays in applying should not affect the credibility of a person's account due to the complexity of a victim of transnational marriage abandonment's circumstances. Decisions to return to a home country must not be assumed as voluntary.
The person deciding the application must find that, taking the information provided in the application form and other evidence provided in the round, the applicant's account is reasonably likely. Where the abandonment marks the end of the relationship, the relationship breakdown requirement will be met.
Please note that the guidance states that medical or independent evidence may not be necessary where the account of the abuse is reasonably detailed, consistent and plausible. However, such evidence would strengthen an application. The evidence required in domestic violence applications was previously addressed in this article and addressed more recently in this updating article. There are no specified evidence requirements therefore an applicant may wish to seek advice regarding the evidence to include in an application.
Form, Fees and Time Frames
The current fee for an application on this route is £2,885, unless a fee-waiver applies. Please note that these fees regularly change. There would be no Immigration Health Surcharge. The current processing time for such applications is 6 months. Please note that processing times can change and applications can be decided in more or less time.
Decision on Application for Entry Clearance as a Victim of Domestic Abuse
Where the requirements detailed above are met and the application is successful, the applicant will be granted indefinite leave to enter in the UK.
The refusal of an application made pursuant to Appendix VDA can be challenged by administrative review.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.