Overstaying and delay do not necessarily prevent settlement

The Immigration Rules make some provision for visa-holders who are victims of domestic abuse to be granted indefinite leave to remain straight away, without completing a further qualifying period of residence.

In some cases, an applicant might have allowed their immigration permission to lapse and become an overstayer. Can a person who has overstayed in the UK for a long time since the end of their relationship apply for settlement as a victim of domestic abuse?

This post looks at the requirements for applicants inside the UK: different requirements may apply to applicants who are outside the UK.

Not all categories of dependent are covered by the Rules, but the requirements for a grant of settlement for victims of domestic abuse are now set out in Appendix Victim of Domestic Abuse (“Appendix VDA”), including the following:

• The applicant must have, or have last been granted, permission in one of a limited list of immigration categories, which includes a “partner under Appendix FM”
• The relationship between the applicant and their partner must have broken down permanently as a result of domestic abuse
• The applicant must not fall for refusal under Part 9: grounds for refusal (but paragraph 9.8.4.(a) does not apply)

The requirement to have “last been granted” permission in one of the eligible categories allows applications from people who have become overstayers and are applying from inside the UK. There is no time restriction on making such an application.

Grounds for refusal under Part 9 normally include criminality, and previous overstaying and breaches of immigration laws. However, overstaying and breaches of immigration laws are not grounds for refusal of an application made by someone inside the UK.

The Home Office guidance to caseworkers entitled Appendix victim of domestic abuse contains further guidance about how applications should be handled, including the following:

• Consideration should be given to whether possible grounds for refusal directly relate to, or are connected to, the domestic abuse: the example given is of NHS debt
• Where an application does not fall for refusal under mandatory criminality grounds, criminal convictions that relate to the domestic abuse must not be considered in an assessment of whether the applicant’s presence is not conducive to the public good.

Issues for longstanding UK residents applying in this category are likely to include the following:

• The passage of time makes obtaining good quality evidence difficult. The process is more straightforward for applicants who can produce police or medical evidence.
• Applicants whose were last granted leave before 2012 will not have been granted leave “as a partner under Appendix FM”, but under predecessor paragraphs of the Immigration Rules. Appendix VDA and the Home Office guidance do not deal specifically with this issue, but caseworkers are instructed to consider granting settlement outside the Rules in other cases where applicants do not have leave in a relevant category.
• Long term UK residents who are overstayers are likely to have worked without permission in the UK. However, this is not a bar in itself to a grant of settlement.
• There is no right of appeal to the Tribunal if an application is refused under Appendix VDA. However applicants with long residence in the UK might still be able to appeal if their case includes human rights grounds such as private life under Article 8 ECHR.

I recently advised an applicant who was an overstayer in the UK, having lived here since the late 1990s. She originally came to the UK with a spouse visa, but her relationship ended in 2000 and she had never renewed her leave to remain. She had been an overstayer for more than 20 years. Nevertheless, assisted by clear evidence from police records, she was granted indefinite leave to remain.

Please note that everyone’s case is different, and the information in this post is not legal advice. If you would like to discuss your case and arrange a consultation, please contact me at kf@kfimmigration.com or on 07752 722 292.

Kitty Falls, Solicitor

22 June 2024

Image by Samuel Stone from Pixabay