Domestic Violence Applications, Evidence and COVID-19 Difficulties

Applications for settlement on the basis of domestic abuse (“SET (DV) cases”) are very complex cases that require careful preparation. In this blog, the writer considers some key points that an application to the Home Office based on domestic abuse should address.

SET (DV) applications are designed to protect individuals who have been granted leave under Appendix FM, Appendix EU and under family reunion rules and who have been subjected to domestic violence by their spouse/partner and in some cases extended family members. This protection is necessary as an individual’s immigration status can be used as a power tool against them in order to force them to remain in a toxic and abusive relationship. Further information in relation to this aspect can be found via the following Amnesty International UK links:

• https://www.amnesty.org.uk/domestic-abuse/government-must-act-now-protect-migrant-survivors-domestic-abuse-me 
• https://www.amnesty.org.uk/press-releases/domestic-abuse-bill-must-protect-migrant-survivors-warn-campaigners 

However, the Home Office has allowed an escape route. If the SET(DV) application is successful then the applicant will be granted Indefinite Leave to Remain in the United Kingdom, independent from their partner.

The Home Office defines domestic abuse to be:

“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.”

The chances of a successful application are significantly increased if independent evidence of abuse can be produced.  Often emotional abuse is more difficult to evidence than physical wounds. 

Research suggests that victims subject to domestic abuse may not alert the authorities, for example, the police or a doctor because of shame, honour, culture, stigma and fear. Because they have not had contact with outside agencies then they may not be able to produce independent evidence to prove their case to the satisfaction of the Home Office caseworker. Significantly, the Immigration Rules do not require independent evidence. The applicant must prove on the balance of probabilities that their relationship has broken down because of domestic abuse. The Home Office Guidance can be found here.

The guidance states “all evidence submitted must be considered and a conclusion drawn as to whether there is sufficient evidence to demonstrate that, on the balance of probabilities, the breakdown of the relationship was as a result of domestic violence.” It continues, “The Immigration Rules do not specify any mandatory evidence or documents to be submitted with an application”. It then provides a table of examples of evidence and how much weight should be given to each particular. It states however, “the list is not indicative and all the evidence should be considered in the round”. This is important and whilst it is always helpful to have independent evidence of abuse, applicants should not be prevented from putting their case forward solely on the basis of their own evidence.

In usual circumstances, it can be challenging to gather evidence to support the allegations of abuse. This challenge is rendered more difficult by COVID. GP appointments and other support may be limited to video or voice calls rather than face to face meetings. This can cause difficulties. The perpetrator, due to COVID-19 restrictions and lockdown, maybe in close proximity to the victim who is trying to disclose the abuse. The victim may not feel confident to speak freely. Contrast this with a face to face appointment where the victim can request to be seen alone by the doctor/support worker or indeed the doctor/support worker themselves may request to see the victim alone.

This article from the Royal College of Nursing highlights that COVID-19 has resulted in an upsurge of domestic violence incidents but at the same time details concerns that fewer cases are being reported.

In our experience, whilst the Immigration Rules do not require independent evidence of abuse, it certainly strengthens a case. For those in need of support, this is a useful link. 

As a team, we have considerable experience in dealing with this type of work. Please feel free to contact the immigration team, if you wish to discuss any aspects further.