spoual visa problem

[flyinghigh]

Hi,
I wonder if anyone can help me...
I've been married to my husband for 3 years. I finished my 2 year probation period in Nov 06 and appled for my indefinite leave 4 weeks before it expired by post.
While waiting for the outcome, my marriage broke down due to domestic violence which I couldnt bear anymore. I moved out temporarily in Jan 07 to see if we could sort things out. My partner called the home office and tried to cancel the application.
Now, i've still had nothing from the home office as they always say its pending consideration. I
I have decided to move on with my life as my partner has been trying to blackmail me. I have applied and gotten the hsmp approval. The thing is i dont know what to do next. Can I apply for the flr here or do i need to return to my home country? Do I withdraw the ILR application? pls advise

[IMMIGRATION LAWYER]

Hello,

Based of what you have just said:

1. Your SET(M) application was difered and is likely to be refused.

2. You cannot switch in-country due to your current status and must do out outside of the UK by lodging your EC application to your local BHC or Embassy.

[John]

Now, i've still had nothing from the home office as they always say its pending consideration.

In which case you are still legally in this country, given that you have Section 3C protection. That is, because you applied for the new visa before the expiry date of the old one, that old one is "treated as continuing" while the application is considered.

I think you need to seek professional advice on this, but would suggest that it might be possible to submit a form SET(DV) while you still have your Section 3C protection. That is, possibly to vary the existing application.

[jimquk]

Did you report the domestic violence to the Police? If so, or if you have other independent evidence (eg. medical), I think you should be OK.

I would continue with the ILR application, appealing if necessary. Your husband can't cancel the application, as it is you that applied. The marriage was still subsisting at the time of the application. You applied for ILR in good faith in the expectation of remaining with your husband. It is possible that the Home Office could decide on your aplication based on the fact that the marriage has since broken down, but this would seem perverse since you could anyway claim ILR under the provisions for victims of domestic violence. You may find that your MP could nudge things along in a good direction.

If you have no evidence of the domestic abuse, you then I'm not sure, others can be more helpful.

Good luck with your new life!

[flyinghigh]

Thanks for your reply.
I didn't report to the police because he always apologised afterwards and he was genuinely sorry.
When I moved out and he found out I was trying to move on by making new friends, he came round to my flat and thrashed everything. The ploice came round but he had gone by then.
Two months ago, he suggested we meet up to discuss our problems and ended up beating me so badly that i couldn't go to work for two days. I took pictures and also went to the police. They tried to arrest him several times but couldn't find him. Now, they're not taking the case any further and have asked me to contact them if he does it again but I've got a police reference number.
The DV forms require the abuse to have taken place when both parties lived in the same house. I dont have any proof of those which occured because I was too ashamed to tell anyone .
I have spoken to a lawyer about it and he said it would be very difficult to obtain ILR based on that because of this

[badmaash]

meaning very difficult does not mean impossible

sometimes there are cases where people think they will fail without doubt but then they win

so you should not give up
i think we need to look through caseworker notes and the law im sure we can find some wording to assist you

[flyinghigh]

Thanks...
Have you got any case worker notes I can refer to?

[VictoriaS]

If you made the application when you were still in a relationship then the application is valid. However, do you think that delays may be because he has contacted the Home Office and told them that you are no longer together? If you think this may be the case then you may want to submit the evidence of abuse.

I would definitely recommend taking professional advice on this one.


Victoria

[IMMIGRATION LAWYER]

I am defending a client soon in a similar situation. There was a judgement of R(B), HC, where the Home Office accepted that a threat did consitute abuse = Domestic Violence.

[VictoriaS]

But if the threats come after the applicant has moved out, it does change things.

However, the Home Office are extremely sympathetic to people in your position.


Victoria

[flyinghigh]

thanks everyone. I eventually withdrew my application and returned to my country to gain entry clearance on hsmp status. The application was staight foward and I didnt need any interviews to support my case!

I've since remarried and my husband joined me as my dependent.

[John]

flyinghigh, thanks for posting. Glad it has all worked out.

You have been rather busy in the 20 months since you opened this topic!

[flyinghigh]

lol John! Time really does fly!

[Sushil-ACCA]

SOLID bollywood strory with with new hero
and emotioanl audience

[bani]

Thanks for the update and reporting the happy outcome.

[SUPERMARIO]

I am curious about something here. If she gets the ILR, and if no longer with the original sponsor, can she apply for citizenship a year after. This assuming she has not formally divorced her husband, just no longer living together. Normally, the spouse applies for citizenship a year after ILR, but her case is a bit unique and I'd be interested in hearing what the experts have to say.

[John]

SUPERMARIO, it sounds like she is now married to a non-EEA person, hence the need for him to have a dependent visa.

Given he is not British she would need to have ILR for at least one year, before an application for Naturalisation might be possible. As she is now here on HSMP we are talking about 6 years from her return before she might be eligible.

By then the new legislation will have kicked in, and thus we would be talking about an 8 year qualifying period, reduced by 2 years, to 6 years, if voluntary work is done.