Domestic Violence

[inamuddle]

I am trying to save enough to apply for Indefinite Leave based on Domestic Violence. I am leaving an abusive marriage with very little but I do have pension and so am not destitute and cannot ask for the fee to be waived. The application fee is over £2000 and I will not have it saved for about six months. Home Office states that I must apply as soon as possible after leaving the situation. Is 6 months too long, does someone know please?

The abuse is 8 years long, the length of the marriage. It has been sexual and verbal. control and manipulation and threats with proof in writing as my husband likes to take note of his abuse. It has recently escalated to physical abuse. I have filed a report with the police and the Council is helping me to move. I also have filed a police report for physical abuse by his son in the past. There is no way I will ever be able to afford legal help so must do this on my own.

My husband is British. I am Canadian. I have Discretionary Leave. England is my home. Is there any encouragement someone can share? Are there pitfalls I should know about? Is it going to hurt that it takes me 6 months from separating before I apply.

By the way, I have permission from Home Office to live separately from my husband without impacting my Discretionary Leave due to a health issue of his that makes living with him difficult, abuse aside.

Any help, suggestions, answers will be much appreciated.

Thank you

[Obie]

So you were granted 3 years discretionary leave or 30 months leave as a spouse in circumstances where Exception 1 is engaged?
It is imperative that you get yourself out of that relationship.
Domestic violence is wrong, and no human being should have yo endure it, you must pull out.

[inamuddle]

I'm not sure what Exception 1 is. My husband had a stroke a few years ago which has exacerbated his abuse (lack of impulse control). He also must have all lights on while he sleeps as well as the television at full blast. There was no exception given at time of granting Leave. I received a letter by email last year allowing me to live apart. As with many victims of abuse, I believed the lies and returned... more than once. This is the last time. As much as I'd like to have no contact whatsoever, I seem to be in a Catch-22 situation. I can live separate from him but must maintain a 'relationship' in order not to jeopardize my Leave until I can save to apply for ILR based on domestic abuse. I don't know quite what is the best course of action. HO wants me to have a relationship but on the other hand, would it not be better for me with regard to ILR if I have no contact? Verbal abuse and control/manipulation will continue through emails. It always does. If I could apply right away, it would be better but I can't. I need 6 months to save the money. So I keep up the 'relationship' by email etc. or do I cut it off now. Any idea?

[Obie]

I need to understand the nature of the leave that you were granted, whether it is under the rules or outside of it.

[inamuddle]

Outside the rules. It's a very complicated situation. When we first married, I was here as a visitor. We were given permission to marry but I was told 3 months later (at the end of my 6 month visa) that I must leave. I went to the tribunal and was granted Discretionary Leave outside the rules. When my three years was up, I applied for further leave. While my application was at HO my husband and his son became more abusive than usual. My husband told me to leave. I requested my passport which was at HO with my application. Upon receipt, my application was dismissed. My husband yanked me back with promises a number of times over the following 2 years. I returned as a visitor a few times, then reapplied and was given Discretionary Leave again. My first three years is up in 1.5 years at which time I have to apply for a further 3 years. While my application was at HO, they lost my birth certificate and my passport and served me with a RED001 accusing me of being an overstayer and threatening me with prison, fines, deportation etc. It took a few months of threats 'til they found my passport and apologized...although I had to go through the Ombudsman to get compensation. They speeded up my application and I was again granted DL outside the rules. My husband's abuse escalated again and I left the 'marital home' with HO's permission (they put it down to the abuse being an after-effect of the stroke). I have not told them about the previous 4 years of abuse. My leaving enraged my husband so he contacted HO and signed a document to say that the marriage was over and that he would not have me back again. At the same time he emailed me to tell me to come 'home' and he would 'get HO off my back'. I wrote to HO and sent them a copy of the email. I returned to my husband two months later. He sent HO another document stating the same, that I was not with him and he would not have me back. A Curtailment of Leave letter was sent to me at my former address and it was forwarded to me. After many back and forth emails with HO, the Curtailment was reversed.

I know that was a long drawn-out answer to a simple question. Sorry, I can get wordy at times.

[inamuddle]

I've just re-read my comment above and I think my rambling might cause some confusion so will give you the bare bones of it below.

1) November 2009 - arrived in the UK from Canada as a visitor for 6 months.

2) March 2010 - married

3) May 2010 at the end of my 6 months visa - received a letter from HO that I must leave. Went to tribunal.

4) October 30, 2010 - given Discretionary Leave outside the rules (end October 2010 'til 2013)

5) October 2013 - Applied for Further Leave to Remain

6) December 2013 thru January 2014 - abuse by husband and his son intensified. As I had nowhere to go other than Canada, I requested my passport from HO. My application was dismissed as a result. I had lost my right to live in the UK

7) March 2014 - left the UK and returned to Canada.

Eight) 2014 - 2015 - returned a number of times for 3 month visits.

9) November 2015 - returned on a 6 month visit

10) January 2016 - applied to stay

11) February 2016 - application denied. Passport gone missing. Issued RED0001. to be deported as an overstayer since 2013.

12) March 2016 - RED0001 withdrawn. Apology made.

13) April 2016 - reapplied for further leave

14) June 2016 - granted Discretionary Leave outside the rules. (June 2016 'til June 2019)

I hope this is more clear.

Thanks kindly

[inamuddle]

Obie,

You asked whether my DL was under the rules or outside of the rules.

Does that have a bearing on whether or not I can apply for ILR based on domestic abuse?

Thanks kindly

[vinny]

Unfortunately,

Here, the ILR provisions dealing with a victim of domestic violence cannot, in my judgment, so easily be seen to represent a progression from a grant of limited leave leading to settlement. That said they provide, of course, a substitute route to ILR when the ILR route for settlement as a partner under the Rules is taken away because of the incidence of domestic violence. In that regard, they have a striking similarity with the bereaved partner provisions except that, in the latter instance, there is no requirement that the limited leave must have been granted under the Rules. The contrast between the ILR provisions for a "bereaved partner" in Section BPILR and for the grant of ILR to a victim of domestic violence in Section DVILR is all the more apparent given that the two Sections follow each other in Appendix FM. In my judgment, the wording of E-DVILR.1.2. supports Mr Webb's submission that had the Secretary of State intended to restrict the requirement that the applicant's last grant of "limited leave" as a "partner" to leave granted under Appendix FM, the Secretary of State could have explicitly stated that in the Rules. She did precisely that in E-DVILR.1.2. when dealing with eligibility for the grant of ILR as a victim of domestic violence.

Consistent with
IA278382014 [2017] UKAITUR IA278382014 (4 May 2017)
IA472922014 [2015] UKAITUR IA472922014 (22 September 2015).

See also Victims of domestic violence.

Although,

Those granted Leave to Enter or Remain (LTE) (LTR) / Discretionary Leave to Remain (DLR)

One of the requirements of the domestic violence rule (and therefore also currently the DDVC) is that applicants have to be on a spousal visa or the 5 year FM route as the spouse, civil partner or partner of someone who is British or present and settled in the UK. However, some applicants for leave as the spouse, civil partner or partner of a person who is British or present and settled in the UK have and are refused this leave and instead given Leave to Enter or Remain (LTE) (LTR) or Discretionary Leave to Remain (DLR) by either the Home Office or, following appeal, by the First-tier Tribunal (Immigration and Asylum Chamber). This usually occurs when an application for leave is made as a spouse, civil partner or partner but the applicant cannot satisfy all the requirements in the Immigration Rules but it would be disproportionate to deny them permission to enter / remain in the UK (because for example, there is no question that the relationship is not genuine and the person concerned has only just failed to meet the relevant requirements of the rule as a spouse).

Following a legal challenge the Home Office accepts that victims of domestic violence granted DLR/LTE/LTR because of their relationship with someone who is British or present and settled here are eligible for ILR under the domestic violence rule (and therefore can also benefit from the DDVC). The other requirements of the domestic violence rule will still have to be met (e.g. that the relationship has broken down permanently during the last period of limited leave because of domestic violence). At the time of writing Home Office guidance on how applications to the DDVC should be decided have not been changed to reflect this concession. Consequently legal representatives and support workers should be prepared to challenge any refusal to grant leave under the DDVC or domestic violence rule, by judicial review proceedings if necessary.

But a challenge may be weaken by

Since the hearing before the Immigration Judge the case of Agyarco [2017] UK SC 11 has been decided by the Supreme Court. The court emphasised the need for proper respect to be accorded to the Immigration Rules....

[inamuddle]

Thank you Vinny for doing so much research to find an answer for me.

I'm hopeless with legal-speak but after reading the material several times it seems fairly clear that in the eyes of Home Office some people cannot be abused but others are fair game.

Because I was granted Discretionary Leave on compassionate grounds because of my husband's disability rather than Leave within the rules, my husband is now free to berate, humiliate, degrade, control, manipulate and strike me. His sons are free to call me b*tch and wh*re and to throw me against a wall. And I have no option if I want to stay in the country I call home but to endure it.

So now my only hope is that he has a massive stroke and dies or goes into care. I can't spend my life wishing for my husband's death.

Thankfully Home Office has given me permission to live separately as long as I maintain a relationship. So I will only have to endure the abuse by email and telephone call with a visit for the physical abuse from time-to-time.

I guess I can do that.

If I am reading the cases properly, I do have the right to apply for Indefinite Leave as a Bereaved Partner if/when he dies. Have I read that right? (Of course, I won't be 'bereaved' any more than I am now but I am willing to shed a few tears)

Thank you again Vinny

[inamuddle]

I have been mulling over the information Vinny gave me above and am trying to get my head round just where I stand in the grand scheme of things.

It appears discretionary leave outside of the rules puts a completely different spin on a situation.

It would seem that if my leave was within the rules, I would be able to apply for Indefinite Leave based on Domestic Violence. But since my Leave was given outside the rules, I do not have the right to do so.

Is my understanding correct?

If it is and I have to put aside the notion of applying for ILR(DV), I need to figure out what to do.

I received a letter from HO some time ago which said in part: "When you were granted DL to remain in the UK our consideration took account of the exceptional circumstances of your marriage (my husband's disability). If you remain in a relationship with __________, your exceptional living arrangements (living apart) in the circumstances, should not have implications for your leave to remain in the UK. Your DL to remain was granted exceptionally, outside the immigration rules. As such, I cannot advise you on remaining compliant. Your marriage to ______ was a key factor in your grant of leave to remain. You should inform us of any change in your marital status."

My husband is 81 years old. There are a number of scenarios for the coming months or years. 1) He may remain well enough to stay in his own home for a long time yet. 2) Vascular dementia may overcome him and he will be forced to go into care. 3) He may have another massive stroke, heart attack or develop pneumonia and die.

I will again, in a few days, be leaving the 'marital home', in part because of the effect his disability is having on my health (abuse aside) and in part because of the abuse. I will notify HO with my new address.

I must apply for further leave in June of 2019. In case of scenario 3, in order to apply to settle as a bereaved partner, according to the rules, we must be in a genuine relationship and intend to live together permanently with each other in the UK at the time of his death. Can persons who have DL outside the rules apply as a bereaved partner or are we excluded as we seem to be in a domestic violence situation?

If I am reading the letter from HO correctly, I have been given permission to live apart from my husband but must maintain a relationship. Am I reading that correctly?

If he goes into care, I should be safe because that would prevent us from living together. Am I correct in thinking that?

Will our emails and telephone calls and very infrequent visits be enough to prove the existence of a 'relationship'? He lives in Surrey near his sons who are abusive to me. I will be living 150 miles away. I cannot afford to live in Surrey or East/West Sussex or Hampshire or Dorset. Somerset has much lower rents etc and that is where my support is as I am returning to the town we lived in until he chose to return to Surrey a month ago.

Sorry, lots of question, I know. But my head spins. I am 72 years old, not a spring chicken anymore, and need to have my ducks in a row.

[inamuddle]

I must apologize for asking multiple questions in each post.

I will cut it down to just one. Could someone please enlighten me as I cannot find the answer I need on HO website.

I have discretionary leave. I understand that I cannot apply for indefinite based on domestic violence.

I have permission from HO to live apart from my husband but need to maintain a 'relationship'. I will endeavour to do that.

My question is this:

If/when my husband dies, can I apply for indefinite leave as a bereaved partner or am I excluded from that provision because of the nature of my leave (discretionary)?

I'm hoping someone can answer this question for me. I need to be able to determine as best I can what my future holds.

Thanks kindly

[inamuddle]

I'm bumping this thread up to the top hoping that someone is able to answer this one last question. I've copied it from my last post and will paste it below.

Thanks kindly,

"I have discretionary leave. I understand that I cannot apply for indefinite leave based on domestic violence...as pointed out in an above post.

I have permission from HO to live apart from my husband but need to maintain a 'relationship'. I will endeavour to do that.

My question is this:

If/when my husband dies, can I apply for indefinite leave as a bereaved partner or am I excluded from that provision because of the nature of my leave (discretionary)?

I'm hoping someone can answer this question for me. I need to be able to determine as best I can what my future holds."