Immigration and Asylum
Immigration and asylum
If you are an immigrant to the UK and your partner is abusive, you may be unsure of what your rights are or what services are available to you. Your partner might tell you that you have no rights, and that no-one will help you.
Some people have ‘no recourse to public funds’ which means that because of their insecure immigration status, they are not entitled to welfare benefits or temporary or permanent local authority housing. People in this position are in the UK legally on spousal, work, student or other temporary visas, all of whom have the ‘no recourse to public funds’ condition attached to their stay.
To work out what your rights are, either to remain in the UK or to access housing or other support, you must first find out your immigration status. You can find this out by looking in your passport. The options available to you will depend on your current immigration status.
If you have come to the UK on a spouse or partner visa and you are experiencing domestic violence then you can apply for Indefinite Leave to Remain (ILR) straight away under the domestic violence rule. This is one of the Immigration Rules, which state who is allowed to enter and remain in the UK and under what conditions. Having Indefinite Leave to Remain should give you access to housing and financial support.
The domestic violence rule states that you will be entitled to ILR if:
- you have been given permission to remain in the UK as the spouse, civil partner or partner of a person present and settled in the UK and,
- that you lived with your spouse, civil partner or partner when you arrived in the UK or were given your visa; and,
- you are able to provide evidence that your relationship with your spouse, civil partner or partner was caused to break down before the end of the probationary period because of domestic violence.
While applying for ILR, if you are also in or at risk of destitution, the ‘Destitution Domestic Violence Concession (DDVC) can be applied for while you are waiting on your application being processed. This may allow you to apply for public funds (benefits) for up to three months. The eligibility criteria are as follows:
- you are in the UK on a temporary partner/ spousal visa (partner of a British citizen, a person settled in the UK, or a member of the armed forces who has served at least four years);
- you have been experiencing domestic abuse;
- a specialist domestic abuse support service such as Women’s Aid can confirm supporting you;
- you have reported the above circumstances as soon as possible to the Home Office.
- you have no money to support yourself and are at risk of destitution (due to financial abuse or simply not being able to work).
If you have leave as a fiancé́, student or worker you cannot make an application under the domestic violence rule even if you have married someone who is British or present and settled in the UK (has ILR).
However, there may be other applications that you could make if you want to remain in the UK. These include:
- Asylum under the European Convention on Human Rights and the Refugee Convention
- Staying in the UK on the basis of private and a family life
- Applying under the long residence rule
- Applying to stay in the UK because you have a British or settled partner
- Applying to stay with a child in the UK
It is important that you seek support and legal advice, and find out what your options are.
People from the European Economic Area
If you are an immigrant to the UK from the European Economic Area (EEA) and your partner is abusive, you may be unsure of what your rights are or what support is available to you. Your partner might also tell you that you have no rights, and that no-one will help you, but you may be entitled to some means tested benefits (financial support) if you meet certain conditions.
To apply for these benefits, you must be able to show that:
- You have a right to reside in the UK; this means a legal right to live here, and;
- That you intend to settle in the UK and make it your home for the time being; this is known as habitual residence
To show you have a right to reside you must:
- be a worker/self-employed, former worker, job seeker, self-sufficient, student) or
- have lived in the UK for 5 years and be classed as having a permanent right to reside) or
- be the family member of someone with the right to reside) or
- have a derivative right to reside, for example if you are the primary carer of a child who has the right to reside.
There is no clear definition of habitual residence; usually the person deciding if you meet the test would look at the following:
- the length of time you have been in the UK
- the reasons you came to the UK
- how long you intend to stay here
- whether you’re working in the UK or are likely to find work in the UK.
You have to have lived in the UK for at least 3 months before you claim any benefits. After you have been in the UK for 3 months you can only claim for a total of 91 days which can be split across a number of occasions of unemployment.
Who else can help?
The Ethnic Minorities Law Centre provides legal advice and representation to people from Scotland’s black and minority ethnic communities. They specialise in legal issues such as immigration, asylum, human rights, and discrimination. They have offices in Glasgow and Edinburgh and projects in 11 local authority areas across Scotland.
If you are a woman, the Scottish Women’s Rights Centre may be able to help with free legal information and support, including for those with no recourse to public funds.
The Law Society Scotland provide a search tool on their website that may assist you in finding a solicitor who is qualified to advise you on immigration and asylum law.