Under the immigration rules, when a spouse, civil partner, unmarried partner or same sex partner of a person with permanent residence in the UK applies to enter or remain in the UK, they are normally granted a 2 year leave to enter or remain. This is generally known as the probationary period. This period is basically meant to test the intentions of the parties. After a successful probationary period, the applicant can apply for permanent residence.
Some relationships break down during this period. If this happens, the applicant would normally be expected to return to their country of origin. The applicant would be unable to apply for permanent residence in the UK.
Various reasons can account for the relationship breakdown. Domestic violence cannot be overemphasized. It is real and can happen to anyone. It can be any threatening behavior, violence or abuse that occurs between adults who are together in a relationship, or were previously in a relationship.
It is sometimes very difficult for victims to report an incident to the police or other relevant authorities because of the fear of the unknown and maybe the inability to speak passable English.
Under current immigration rules, there is a provision that benefits persons whose relationship breaks down before the end of the two year probationary period due to domestic violence. This was a major concession made by the Home Office in 1999 and incorporated into the Immigration rules in 2002.
Under paragraph 289 (A) of the immigration rules, victims of domestic violence may be granted indefinite leave to remain if they fulfill the requirements of the ‘domestic violence rule’.
The applicant needs to show three things;
1. They were admitted or granted an extension as the spouse, civil partner, unmarried or same sex partner of a person with permanent residence for either 2 years or 27 months; 2. The relationship was subsisting at the beginning of the relevant period of leave or extension of stay; and 3. Provide such evidence as may be required by the immigration officials that the relationship was caused to permanently break down before the end of the probationary period as a result of domestic violence.
If you think this rule would be of benefit to you, it is advisable to obtain the services of a specialist.
If you do not want to pursue this route you can also apply for leave to remain under 'the right of access rule'. This aids in the preservation and continuity of the family life of parents and children provided the applicant satisfies the requirements of the applicable rule. It is also consistent with the European Convention for Human rights in particular Article 8, which guarantees the right to respect of a private and family life without unjustified interference by a public authority.
Paragraphs 246-248F of the immigration rules makes provision for those who are making such an application either in the UK or from outside the UK. I will be focusing at this time on in-country applications.
Under paragraph 248A of the immigration rules, an in-country applicant needs to satisfy 10 requirements. The applicant needs to show that he/she is the parent of the child resident in UK. The applicant should be taking an active role in the life of the child and there should be an intention that this arrangement would continue. There is also the need to show that the other parent or carer of the child with whom the child permanently resides is resident in the UK. In addition, the applicant needs to produce evidence that he/she has access rights to the child in the form of: (a) A Residence Order or a Contact Order granted by a Court in the United Kingdom; or (b) A certificate issued by a district judge confirming the applicant's intention to maintain contact with the child; or (c) A statement from the child's other parent (or, if contact is supervised, from the supervisor) that the applicant is maintaining contact with the child. Evidence should be adduced to show that the child visits or stays with the applicant on a frequent and regular basis and the applicant intends this to continue. The requirement that the child should be under the age of 18 years should be satisfied. The applicant should also have limited leave to remain as the spouse, civil partner, unmarried or same –sex partner of a person with permanent residence who is also the other parent of the child. It is imperative to demonstrate that the applicant has the ability to maintain and accommodate himself without recourse to public funds. Finally, the applicant should not have remained in breach of the immigration rules. If you do satisfy the requirements of this rule, you would be granted an initial period of twelve months and Indefinite Leave to Remain thereafter, if you continue to satisfy the immigration rules under this category.
If you think you might benefit under this rule, it is advisable to seek specialist advice.
Both the ‘domestic violence rule’ and the ‘right of access rule’ does not benefit those who are married or in a relationship with persons with limited leave to remain. You need to seek further legal advice concerning your immigration status if an issue like this arises. Hopefully, the Secretary of State would deem it appropriate to extend these provisions to cover people in this precarious position.
I will use this opportunity to acknowledge the good work of Southall Black Sisters. For more than two decades they have been at the forefront of challenging domestic and gender violence locally and nationally, and they were instrumental in the introduction of the ‘domestic violent rule’.
I will end by stating that it is advisable to seek legal advice concerning your future immigration options as soon as you possibly can when you enter the country. This will prevent any future inconveniences.
Also if you are refused entry into the country at any UK airport, always request that they allow you to speak to a legal representative before you sign any documents as you may be signing away your legal rights. If you have a relative, request that they allow you to speak to that person. It always helps if you let them know that you have a relative in the UK. Always make sure that you insist on speaking to a legal advisor.
Lawrencia Kwegyir-Afful works as a Solicitor at Bake & Co Solicitors in Birmingham. She can be contacted through the following means; Email: lafful@bakesolicitors.co.uk Tel:0121 616 5025 or visit www.bakesolicitors.co.uk
Disclaimer: This article only provides general information and guidance on immigration law. It is not intended to replace the advice or services of a solicitor. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of the use of this information.
