In our previous post, we have discussed the requirements for Indefinite Leave to Remain (ILR) for victims of domestic abuse. The route was introduced to provide a safety net for victims with insecure immigration status who, upon reporting abuse, face the threat of detention and potential removal to their home countries, which could be particularly devastating if they have children. The ILR provides a way for migrant victims to escape their abusive partners and build a new life in the UK, free from the threat of removal.
Despite the noble intentions, the reality is that this scheme has an extremely limited reach. Unfortunately, the current requirements for this route have been criticised for excluding certain groups of victims.
In this post, we will delve deeper into examining the issue of one particular group, namely the victims of the so-called ‘transnational marriage abandonment’.
Transnational marriage abandonment (TMA) is recognised as a form of domestic violence. It occurs when a person deliberately abandons their migrant spouse abroad, generally in their country of origin, with the aim of preventing their partner from returning to the UK and seeking support as a victim of domestic abuse. This is often the case when the victim’s leave in the UK has expired or if the abuser has informed the Home Office of the relationship’s breakdown, resulting in the curtailment of their visa.
What is more, the abandoned partner who lost their matrimonial or residence rights in the UK is often left without any financial resources or rights to support and protection. Many victims are also left vulnerable to further violence, exploitation, destitution and social stigma from their home country’s communities.
Unfortunately, the current immigration law rules fall behind in addressing this hideous phenomenon, leaving the victims in an extremely difficult position to return to the UK. As you would recall, the only solution for abused spouses is to apply for Indefinite Leave to Remain (ILR) for victims of domestic violence. However, the first eligibility criterion for such an application is that the victim must be physically present in the UK when applying. This makes the ILR route unavailable to abandoned spouses who are stranded abroad, as they cannot return to the UK to make an application.
The ruling in the case of Re S (A Child)[2010] EWHC 1669 (Fam) established guidelines for the family court issuing orders for the stranded spouses to return to the UK to participate in family law proceedings. However, even with court orders, the grant of visas for abandoned spouses is not always guaranteed, as such requests rely solely on the discretion of the Entry Clearance Officers. The only option for many affected spouses remains to apply for Discretionary Leave outside of the Immigration Rules. We encourage you to read our recent post on applying for a Leave Outside the Rules, which delves into both the benefits and drawbacks of these applications.
The recent High Court ruling in AM v SSHD [2022] EWHC 2591 (Admin) has finally brought some good news in addressing the transnational marriage abandonment phenomenon. The case involved a Pakistani woman who arrived in the UK in 2017 to be with her British husband and gave birth to a British daughter the following year. During their relationship, AM endured domestic abuse in different forms, including financial, physical, emotional, and sexual abuse. In 2021, AM’s abusive spouse abandoned her in Pakistan without any travel documents and separated her from her two-year-old child.
The Court held that the lack of route in the Immigration Rules for victims of TMA was in breach of the European Convention on Human Rights, as the stranded spouses are discriminated against as not being in the UK.
The ruling now has lifted the mandatory requirement for applicants to be physically present in the UK to make an application for Indefinite Leave to Remain (ILR). This means that you will now be able to submit an application for ILR as a victim of domestic abuse regardless of your location, whether you are in the UK or abroad.
However, due to the ruling being very new, there is still no clear process for making this application from outside the UK. The Home Office has yet to take any meaningful steps to address the High Court’s judgment, such as changing the current rules and updating their guidance, as well as creating a concession to allow TMA victims to get to a position of safety before they are able to apply for indefinite leave.
Given the Home Office’s reputation for being slow in its processes, it is likely to take some time for them to implement these changes.
Until the Home Office implements the necessary changes, the victims of TMA should use the High Court judgment in the AM case as the basis for requesting their immediate return to the UK.
Through this week and last week’s blog posts, we explored the impact that immigration law has on the lives of foreign national spouses of British citizens who are victims of domestic abuse in the UK. While the law can provide a much-needed source of comfort in challenging times, it can also complicate the already difficult and uncertain situation of the victims.
An immigration adviser can be a valuable resource in this process, helping you to navigate the complexities of the Immigration Rules and developing the most appropriate plan of action for your individual circumstances.
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