DOMESTIC VIOLENCE, IMMIGRATION LAW AND - Rights of Women

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You should seek immigration legal advice as soon as possible. • If you still had current leave to remain on a spouse visa when you applied for DDV, you would have a right of appeal, and you should seek advice as soon as possible. • If you applied for DDV whilst you were on some other type of visa (e.g. as a dependent on your partner’s work visa), you would have a right of appeal. But the appeal would not have any legal merit, because this application is only open to those who are on, or have had, a spouse visa. Whatever the reason for your refusal, there may be some other application you could make to the UKBA. But, by having applied for leave under the DDV concession and been refused, you would now no longer have any leave to remain unless you make an in-time appeal. • If you applied under the DDV concession at a time when you had no leave, you will have no right of appeal, and will remain liable to removal. When the UKBA eventually make a decision to remove you, you will then have a right of appeal. 2. New Immigration Rules on family migration from 9 July 2012: important changes for women fleeing domestic violence but who do not fit the Domestic Violence rule, and for other women with no recourse to public funds The new Immigration Rules have introduced major changes in the requirements for all categories of family migration, and set out in detail what the UKBA believes to be reasonable requirements for an applicant to qualify for leave to remain under art 8 ECHR (an application based on the applicant’s rights to private and family life) and/or ‘best interest of the child’ as set out in the UN Convention on the Rights of the Child, brought into law in section 55 Borders, Immigration and Citizenship Act 2009 (an application to remain in the UK with a child whose best interests it is to remain in the UK). The UKBA clearly intends these new Rules to set clear limits on who will, and who will not, be granted leave to remain on the basis of family life under article 8 ECHR or the ‘best interests of the child’. In its press statement on 11 June, the UKBA said: The new Immigration Rules will also unify consideration under the rules and Article 8 of the European Convention on Human Rights, by defining the basis on which a person can enter or remain in the UK on the basis of their family or private life. (Our emphasis) However it is very important to note that the rights protected by art 8 ECHR and the UN Convention on the Rights of the Child must be considered in each individual case and in accordance with the law. This means that, despite the UKBA’s desire to introduce limitations on how art 8 ECHR or the rights of a child can be taken into account, individual applicants may still be entitled to leave to remain even if they do not meet the UKBA’s ‘requirements’ now contained in the Immigration Rules. From 9 July 2012, there will be 2 main ‘routes’ to settlement for family migrants. • The 5-year route Those family migrants who are not overstayers and whose current leave to remain permits them to switch into a family migration category, or who can make a valid entry clearance application as a spouse, partner, child, elderly dependent relative, complying with all the requirements of the new family migration Rules will be granted leave to remain in the ‘5 year route’. The new ‘eligibility’ requirements include very specific and onerous requirements as to income, as well as a list of ‘suitability’ requirements. These are summarised below. Applicants will be given leave to remain for 30 months (2 ½ years) with no recourse to public funds. They will then have to apply for a further period of 30 months’ leave. After 5 years they will be eligible to apply for indefinite leave to remain. 4
This 5-year route applies to all future applicants granted leave to remain as a spouse, civil partner, and unmarried partner, including those seeking entry for the first time who have been in relationships for over 4 years. The probationary period for spouses/civil partners/unmarried partners is therefore 5 years. Eligibility: the new minimum income threshold is £18,600 for sponsoring the settlement in the UK of a spouse or partner, fiancé(e) or proposed civil partner, of non-European Economic Area (EEA) nationality, with a higher threshold for any children also sponsored; £22,400 for one child (£18,600 for the partner and £3800 for the child) and an additional £2,400 for each further child. This cannot include any income of the applicant or any third party support, but can include the savings of both sponsor and applicant, (which can include financial gifts from 3rd parties) so long as strict criteria are complied with. When these applicants come to apply for indefinite leave to remain (ILR) they will have to pass a new more difficult English language test. New rules on criminality: all these applicants must satisfy the new ‘suitability’ test (to be found in paras S-EC and S-LTR in the new Appendix FM). It is important to note that these requirements are harder to meet than the previous simple requirement not to have any unspent criminal convictions 4 . Depending on what crime was committed, the new rules could potentially be used to exclude anyone even if no crimes have been committed (for example, if a person has on several occasions been arrested but not charged, or tried for an offence and acquitted on technical grounds, or simply been a person of interest to the police). The suitability rules for entry clearance applications state that the UKBA may decide to exclude someone from the UK on the basis that their exclusion ‘is conducive to the public good’ (in other words, British society is better off without that person) if • they have been convicted of an offence for which they have been sentenced to imprisonment for at least 12 months (S-EC 1.4). OR if • the applicant’s conduct, (including convictions with punishments of less than 12 months), character, associations, or other reasons, make it undesirable to grant them entry clearance (S-EC1.5). The suitability rules 5 for in-country applications for variation of leave and indefinite leave to remain state that the UKBA may decide to exclude someone from the UK on the basis that their exclusion ‘is conducive to the public good’ (in other words, British society is better off without that person) if • they have been convicted of an offence for which they have been sentenced to imprisonment for at least 4 years (.S-LTR.1.3) • they have been convicted of an offence for which they have been sentenced to imprisonment for less than 4 years but at least 12 months. (S-LTR.1.4) 4 Section 139 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 reduced all rehabilitation periods (periods after which a conviction becomes spent- see part 3 of this Update) for criminal offences. But section 140 of the same Act provides that immigration and nationality applications are excluded from the rehabilitation scheme, though some Rules continue to require applicants to have no unspent convictions. 5 These ‘suitability’ requirements can be found in Appendix FM under the ‘partner’ category, at http://www.ukba.homeoffice.gov.uk/policyandlaw/immigrationlaw/immigrationrules/app-family-members/family-lifeas-a-partner/ 5
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DOMESTIC VIOLENCE, IMMIGRATION LAW AND - Rights of Women

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