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Help is at Hand – Domestic Violence and Immigration

January 2018 - Immigration. Legal Developments by OTS Solicitors.

More articles by this firm.

Imagine you are a young woman coming to the UK to live with your new husband. You met in your home country, fell in love and decided to marry. He is a British citizen, wealthy enough to afford to meet the UK spouse visa minimum income requirement so as to sponsor you to come to Britain. He also has a large, extended family who you hope will offer you stability and a warm welcome.

However, shortly upon entering the country, your dream of a safe, prosperous marriage turns into a nightmare. Not only do you suffer beatings and abuse from your husband, but you are also abused by your extended family, with whom you may live with.

You want to leave, but where do you go? You have no money of your own. People on a UK spouse visa cannot access public funds. Your partner has taken your passport, and you are effectively destitute. To add to your stress and anxiety, you have just found out you are pregnant and now fear for the safety of your child.

This type of situation is the sad, frightening reality for hundreds of women from all different faiths, cultures and socio-economic backgrounds who are in the UK on a spouse visa. Fortunately, domestic violence rules allow men and women who are in the UK on a spouse visa to break free from their abusive relationship and still retain Indefinite Leave to Remain.

Imagine you are a young woman coming to the UK to live with your new husband. You met in your home country, fell in love and decided to marry. He is a British citizen, wealthy enough to afford to meet the UK spouse visa minimum income requirement so as to sponsor you to come to Britain. He also has a large, extended family who you hope will offer you stability and a warm welcome.

 

However, shortly upon entering the country, your dream of a safe, prosperous marriage turns into a nightmare. Not only do you suffer beatings and abuse from your husband, but you are also abused by your extended family, with whom you may live with.

You want to leave, but where do you go? You have no money of your own. People on a UK spouse visa cannot access public funds. Your partner has taken your passport, and you are effectively destitute. To add to your stress and anxiety, you have just found out you are pregnant and now fear for the safety of your child.

This type of situation is the sad, frightening reality for hundreds of women from all different faiths, cultures and socio-economic backgrounds who are in the UK on a spouse visa. Fortunately, domestic violence rules allow men and women who are in the UK on a spouse visa to break free from their abusive relationship and still retain Indefinite Leave to Remain.

divorce and domestic violence

Orders to protect you and your children

If you are the victim of domestic violence, you can apply for a non-molestation order and an occupation order to protect yourself and any children.

A non-molestation order prevents your spouse or any other person who has been abusing you from molesting you or your children. There is no legal definition of molestation. In C v C (Non-Molestation Order: Jurisdiction) Sir Stephen Brown P held:

“there is no legal definition of 'molestation'. Indeed, that is quite clear from the various cases which have been cited. It is a matter which has to be considered in relation to the particular facts of particular cases. It implies some quite deliberate conduct which is aimed at a high degree of harassment of the other party, so as to justify the intervention of the court.”

A non-molestation order can be applied for without notice if the court deems this to be just and convenient. Although you can apply for an order without a solicitor, it is best to seek legal advice. A lawyer will advise you on how to fill in the application correctly and collate the supporting evidence to strengthen your application. This may include medical evidence, witness statements and police records.

An occupation order is an instruction under the Family Law Act 1996 conferring, declaring, restricting or regulating rights of occupation in the family home between family members or those involved in a domestic relationship.

Physical violence is not required for an occupation order to be granted. In Re L (Children) (Occupation order: absence of domestic violence), the Court of Appeal upheld a decision whereby the judge at first instance had granted an occupation order because of the detrimental effect the constant fighting between the parents was having on the children.

 

Occupation orders are not granted lightly; therefore, it is imperative that you seek legal advice and representation if you wish to make an application.

divorce

You must be married for at least one year before you can obtain a divorce. There is only one ground for divorce in English law, and that is if the relationship has irretrievably broken down because of:

  • Adultery
  • Unreasonable behaviour
  • Desertion
  • separation of two years (you can apply for divorce with the consent of your spouse)
  • separation of five years (no consent is required)

If there is evidence of domestic violence within the relationship, you may be exempted from having to attend a Mediation Information and Assessment Meeting (MIAM). When working out the financial order, the court will consider the income, earning capacity, property and other financial resources that each of the parties to the marriage has or is likely to have in the foreseeable future. Therefore, if you are not working and have dependent children, you may be entitled to spousal maintenance and a substantial share of the matrimonial property.

Indefinite Leave to Remain and the domestic violence provisions

The Home Office’s definition of domestic violence is:

any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality.”

Under the domestic violence rules, you are entitled to apply for Indefinite Leave to Remain if:

  • you have a UK spouse visa
  • you were in a continuing relationship with your spouse when you entered the UK
  • you can show evidence that your marriage has permanently broken down before the end of your probationary period due to domestic violence
  • you meet the requirements contained in the Immigration Rules

There is a fee for applying for Indefinite Leave to Remain under the domestic violence rules; however, if you can show you are destitute, the fee will be waived.

Under the domestic violence rules, you will not have to meet the English language requirement or pass the Life in the UK Test.

If you are in the UK on a spouse visa and are suffering from or have experienced domestic violence, OTS Solicitors can assist you with obtaining a divorce and Indefinite Leave to Remain. We have an experienced team of Immigration and family law solicitors and are highly recommended in the Legal 500.

OTS Solicitors is one of the most respected Immigration and family law firms in London. By making an appointment with one of our Immigration and/or family solicitors, you can be assured of receiving some of the best legal advice available in the UK today. We can assist you in all divorce and domestic violence matters.

 

If you wish to discuss any of the points raised in this blog, please phone our London office on 0207 936 9960.