Monday 18 March 2024

Up until 16 February 2024 dependant partners on economic and student routes effectively had no protection with regards to their immigration permission once they had suffered domestic abuse and decided to leave the abusive partner their permission was tied to. Whilst partners of British or settled individuals could apply for temporary protection under the Destitute Domestic Violence Concession (DDVC) and indefinite leave to remain in the UK (ILR) through Appendix Victims of Domestic Abuse (VDAILR), where partners of economic or student route migrants suffered domestic abuse they were not eligible for any such concession/applications. The concession has been expanded to encompass partners of those on economic and student routes, which, on the face of it, appears to be a broadly logical development. It is, however, critical to note that utilising this concession may not be the appropriate long-term solution for individuals in this situation.

There have been efforts from many organisations who have voiced the concerns of the dependant partners on economic and study routes, highlighting how there is a serious demand for the concession and the VDAILR route to be expanded to encompass these partners in the hope that it would convince people suffering domestic violence to come forward without having to worry about their immigration position being affected. One of the requirements for permission to stay in the UK as a dependant partner on working and student routes is to prove that dependants have a genuine and subsisting relationship with their migrant partners. An indication that their relationship has broken down could lead to the cancellation of the dependant’s permission. Hence, this requirement can prevent those partners from ending the abusive relationship or even, at times, deter them from reporting the abuse to the relevant authorities. Many choose to suffer in silence out of fear of losing their immigration permission.

Eligibility under DDVC does not necessarily equate to eligibility under VDAILR

As highlighted above, the Home Office recently announced that the DDVC will be expanded to include dependants on economic and study routes. The DDVC was renamed the Migrant Victims of Domestic Abuse Concession (MVDAC). This expansion was welcomed by many as a step in the right direction. However, a detailed analysis does highlight some very significant concerns.

The DDVC was generally treated as a stepping stone prior to an ILR application rather than an isolated route. The concession quickly granted three months permission for dependants suffering abuse in their homes so that they would have immediate relief. During this period they would be able to claim public funds and prepare and submit an application for ILR on the basis of domestic abuse. Anyone who was eligible for the concession was also, of course, eligible to apply for VDAILR. While dependant partners on economic and study routes are eligible to be granted three months’ leave under the new concession, they are not eligible for ILR under the VDAILR route as the expansion has not been mirrored in the VDAILR eligibility requirements. The concession has not previously been a stand-alone solution and was rather a way to give migrants immediate access to support while applying for DVAILR; however, for dependant partners on economic and study routes, it is now structured as a stand-alone provision.

Home Office guidance highlights that the concession was expanded in response to the findings of the Support for Migrant Victims (SMV) scheme which aimed to give public funding for a limited duration to people who had suffered domestic violence regardless of whether they were eligible for leave under the DDVC. The scheme evaluation highlights the difficulties faced by those who were not subsequently eligible for ILR; however, despite this, partners on work and study routes are only eligible for a short period of leave with recourse to public funds. The scheme was itself an example of why the concession should only be a ‘stepping stone’ and not a stand-alone option. Those who were not eligible for VDAILR after the scheme were left with limited options and many participants were left without access to funds and without clarity on the future of their immigration status. It is likely that those who are still not eligible for VDAILR could find themselves in a precarious immigration position.

A further cause for concern is that such individuals may simply not be aware that eligibility for the concession does not equate to eligibility for ILR. Many dependant partners on economic and study routes may come forward with the expectation that they will have the chance to apply for VDAILR and the reality is that they will be left with very limited options with regards to other routes they may apply under following the end of the three months.

Home Office caseworker guidance has also taken limited steps to highlight the severity of ineligibility for those dependant partners on economic and study groups. The guidance simply added a section stating ‘The policy does not provide for all victims of domestic abuse and not everyone granted permission under this concession will be eligible to apply for settlement under Appendix VDA.’ However, this disclaimer is neither sufficient nor proportionate to the potential consequences suffered by individuals on these routes that may apply for this concession without appreciating that it does not lead to ILR. Those who have fled an abusive relationship are often in extraordinarily vulnerable positions and may have limited knowledge of the immigration system. More explicit guidance as to the limitations of this concession is therefore crucial in the absence of the necessary expansion of VDAILR provisions as a permanent remedy for all those who suffer domestic abuse in this context.

Leave outside the Immigration Rules

As indicated above, those who are not eligible for VDAILR will have limited options at the end of the three months. Once the dependant partner comes forward and secures leave under MVDAC their existing permission tied to the migrant on the economic or study route would be varied and they would be granted only three months of limited leave outside of the Immigration Rules. A core issue is that a grant of leave outside the rules greatly limits an individual’s ability to apply for alternative leave as the validity provisions of most routes prevent an individual applying if they currently have or were last granted leave outside the Rules. The current Home Office guidance for MVDAC fails to adequately highlight this, stating that if you are not eligible for VDAILR the concession gives the opportunity for the dependant migrant to either facilitate ‘an application for permission to stay in a relevant immigration route’ or ‘make plans to leave the UK during a short period of lawful status, financial stability and support from specialist services’. It is alarming that while the Home Office states that individuals may facilitate an application in a relevant immigration route, in reality, there are almost no immigration routes that a person with permission to stay outside of the Rules will be eligible for other than perhaps a human rights application relying on Article 8 ECHR. Guidance in its current form runs the danger of being very misleading, especially for those who do not have the support of an immigration lawyer. Although the notes accompanying the application form go further to clarify this position, this is clearly inadequate in highlighting the challenges that those granted leave under the MVDAC may face in securing long term immigration permission should they have been a partner of an individual granted leave under the economic or student routes.

Although the extension of this concession to dependant partners on economic and study routes may be beneficial as a short term solution (for example for those who want to immediately distance themselves from the abusive environment and leave the country), it provides insufficient protection for those wishing to remain in the UK and the restriction of the route in this regard are clearly not sufficiently highlighted. The limited options available for those not eligible for VDAILR will likely add to the uncertainty of their position in the UK – regardless as to the abuse to which they have been subjected – and may leave them without funds or immigration status once the three months of limited leave come to an end.

Get in touch

If considering applying for leave under the MVDAC (especially as a dependant partner on economic or study routes) potential applicants should be encouraged to seek immigration advice before doing so due to the current limitations of this concession. See our website, contact your assigned LDI lawyer or email enquiries@lauradevine.com.