Immigration issues in cases involving transnational marriage abandonment / stranded spouses
Transnational marriage abandonment, also sometimes referred to as spousal stranding, is now well recognised as abusive behaviour. PD12J includes, at para. 2B, the following: “For the avoidance of doubt, it should be noted that “domestic abuse” includes, but is not limited to, forced marriage, honour based violence, dowry related abuse and transnational marriage abandonment”. Para. 3 continues: ““abandonment” refers to the practice whereby a husband, in England and Wales, deliberately abandons or “strands” his foreign national wife abroad, usually without financial resources, in order to prevent her from asserting matrimonial and/or residence rights and/or rights in relation to childcare in England and Wales. It may involve children who are either abandoned with, or separated from, their mother”.
Since 2011, there have been a series of cases concerning this issue. The first was Re S (Wardship: Stranded Spouses) [2011] 1 FLR 305 (a copy of the judgment can be found here). In that judgment, Mrs Justice Hogg commented as follows:
“[60] Sadly, this is not the first case where I have encountered allegations of deliberate separation of a child and mother by the paternal family. I know that other judges of this division have encountered similar cases and made similar findings as I have done in this judgment. To separate a mother and child in this way is emotionally harmful to the child and remains so for so long as the child is deprived of the mother. It is something which is abhorrent and unfeeling towards a child and mother. It is selfish and cruel by those who do it.”
In ZM v AM (Stranded Spouse) [2014] EWHC 2110 (Fam) (copy of the judgment linked to from the website of Dawson Cornwell Solicitors, who represented the applicant mother), Mr Justice Peter Jackson (as he then was) emphasised the exploitative element of cases of spousal stranding, as follows:
“[1] Where one party to a failing marriage has secure immigration status and the other does not, the opportunity arises for the former to exploit the latter's weakness by taking advantage of immigration controls. This case is a bad, but by no means unique, example of what has come to be known as the stranded spouse. A very young wife was lawfully brought to the United Kingdom, where she was dependent upon her husband and his family, and where she gave birth to a child who has major disabilities. Her husband made little effort to secure for her the immigration status to which she was entitled and when the marriage got into difficulties, she was then sent out of the country with no right to re-enter. The result is that she and her child have been separated for the past three years, a situation that is a wholesale breach of their right to respect for their family life under art 8 of the European Convention on Human Rights. The only way in which this breach can be remedied is by the mother regaining the ability to enter this country. The nature of the child's condition means that while his mother remains abroad there is no opportunity for any meaningful relationship between them.”
More recently, the Court of Appeal considered cases of spousal stranding in Re A (Children: Fact-Finding Appeal) [2011] 1 FLR 1175 (Family Law Week summary and judgment here).
In 2013, freemovement (website here) published an excellent post in relation to spousal stranding, identifying in particular the immigration problems that this practice can cause. The post can be read in full here. In this context, it included the following: "
“A cross jurisdictional international family law case is usually going to be out of the question in many cases. Many countries are not signatories to the Hague Convention, which facilitates swift resolution of conventional child abduction cases. The stranded spouse will often not have the resources to access the home legal system in any event. Anyway, the proper jurisdiction for dealing with the residence of a British child born in and habitually resident in the UK is, of course, the UK.
So the stranded spouse must find a means by which she can return to the UK to fight her corner and see her children. First of all, a new national passport will need to be obtained from the home country. This takes precious time and money. Next, the stranded spouse will need to obtain a replacement visa to place in that passport.
With no ready access to a British High Commission or embassy official, who are now barricaded behind impenetrable ‘commercial partners’ in most countries, this is going to be inherently difficult. Worse, though, the British immigration officials will realise that the relationship that formed the basis of the visa has permanently broken down. There is arguably no basis for the visa to be reissued because the immigration rules are no longer satisfied. The application will be refused. Even an application outside the rules or on the basis of a visit to the UK will also sometimes be refused by dogmatic officials who can see no further than the strict terms of the rules.”
The post includes an appropriately blunt conclusion:
“In two cases brought to my attention this week, though, the visa officers simply refuse to budge despite strongly worded encouragement from High Court judges in line with Re S.
The separation of these children from their mothers goes on and on while the courts prod and cajole indifferent officials. The worst case scenario is that the children will never know their mothers. And the problem is likely to become more common now that the probationary period has been extended from two years to five years.”
The same issue has been canvassed more recently by Sulema Jahangir, a partner at Dawson Cornwell, writing for Family Law Week - her article, Stranded Spouses and Immigration Control, highlights similar difficulties to those raised within the freemovement blog post.
As such - it is apparent that immigration issues in this context were being raised in cases and commented upon in 2011, 2013 and 2015.
In fact, practitioners will know that immigration difficulties for stranded spouses (almost invariably mothers) arise in every single case.
It is heartening to learn, therefore, that a judicial review has been brought against the Home Office in relation to this issue. The JR was decided by Mrs Justice Lieven following a hearing on 12 July 2022. Judgment was handed down on 14 October 2022, and can be found on Bailii here. The issue was covered in the national press, e.g. in the Guardian on 25 October 2022 - article here.
The facts make for grim, but sadly familiar reading. The claimant (who is the mother of a two year old child who is a British Citizen) is a Pakistani national. The father of the child, IM, is a British Citizen. They married in 2017 and in December 2017, the mother travelled to England on a spousal visa which was valid to August 2020. She gave birth to their child, X, in December 2018.
The mother alleged that she had been the victim of severe financial, physical, emotional and sexual abuse. Her allegations were tried in the High Court by Mrs Justice Theis, who found that the father had subjected to the mother to very serious abuse. The judgment records the detailed allegations that the mother made against the father at paras. 5 - 7. In September 2020, following an incident which caused the mother to be hospitalised, the mother disclosed the treatment that she had been subjected to to medical professionals, the police, social services and an organisation named Hestia. A MARAC meeting was conducted.
Notwithstanding the involvement of the authorities in this way, the father was able to coerce the mother into travelling to Pakistan. The mother had refused and told social services that she feared she would be abandoned, but the father made threats towards the mother’s family. The father assured social workers that the family would return to the UK by March 2021.
In fact, the father removed the child from the mother’s care, and then returned with her to the UK. The mother was left in Pakistan. She sought help from organisations in the UK and from the British Embassy in Pakistan. The difficulties that she encountered are set out at paras. 11 - 13 of the judgment, as follows:
“11. On 5 March 2021, the Claimant, relying on advice from a member of staff of the British Embassy in Pakistan and the Visa Application Centre in Karachi, applied for a replacement Biometric Residence Permit. On 10 March 2021, the application was refused on the basis that she did not have valid leave to return when she left the United Kingdom. The Claimant then instructed Islington Law Centre on 18 March 2021, which on 12 April 2021 submitted an urgent and detailed application for a fee waiver for the Claimant, enclosing evidence of her finances, the domestic abuse she was a victim of in the UK and her abandonment in Pakistan and separation from her daughter. They also informed the Defendant that the Claimant would need to be in the UK by 1 July 2021 to attend Family Court proceedings, and that the Secretary of State should facilitate and expedite her return to the UK.
12. The Defendant failed to respond or to grant a fee waiver. Consequently, the Claimant's solicitors applied for and were granted emergency funding by the Legal Aid Agency on 16 June 2021. An urgent application for judicial review of the delay in deciding the application for a fee waiver was lodged with the Upper Tribunal on 17 June 2021 and later the same day Upper Tribunal Judge Allen ordered that the Defendant reach a decision by 4pm on 24 June 2021. In a decision dated 22 June 2021, the Defendant granted the application for a fee waiver.
13. Thereafter, on 30 June 2021, the Claimant's solicitors made representations on her behalf in support of an application for Indefinite Leave to Enter on the basis of domestic abuse. No decision was received, but on 30 July 2021 the Claimant was issued with a visa for 6 months leave to enter outside the Rules, with no recourse to public funds.”
The mother was then able to re-enter the UK. On 2 August 2021, the Family Court made an order requiring that the child be returned to her mother’s care. The mother re-entered the UK on 20 August 2021. Unfortunately, the mother had no accommodation. In due course, Southall Black Sisters were able to provide accommodation for her. Accordingly, on 26 September 2021 the child was returned to the mother. They had been separated for around 9 months.
It is unnecessary to record that it is obviously intolerable and contrary to a child’s welfare to be separated from their parent for 9 months in that way. It is, however, also important to note that in some stranded spouse cases the separation is for far longer, and reunification is therefore more difficult to achieve. Southall Black Sisters provided evidence in support of the mother’s JR in this case, which is set out by the judge at paras. 29 - 34. That evidence included that the average period for which mother’s are excluded from the UK following spousal stranding is, in SBS’s experience, three years. The exclusion of women in this situation can extend beyond the commencement of legal proceedings in England which are intended to bring about their reunification with their child. At para. 32, the judgment records the following:
“Both SBS and Ms Gbikpi, the Claimant's solicitor from Islington Law Centre, say that a frequent problem is that even where a Family Division Judge in the High Court, who is considering Children Act 1989 proceedings, requests the Home Office to allow the woman into the UK to engage in legal proceedings, the Entry Clearance Officers frequently refuse them leave to enter. There can then be a protracted struggle to obtain entry clearance. These kind of difficulties are set out by reference to specific case examples by Ms Gbikpi and Ms Jahangir of Dawson Cornwall (a solicitors firm that specialises in international family law cases).”
On 9 November, the Home Office granted to the mother 30 months further leave to remain. On 24 June 2022, she was granted ILR.
The JR claim
The mother sought judicial review of the decisions taken by the Home Office in the course of her attempts to re-enter the UK on five grounds, which were as follows:
“a) That the DVILR provisions are unlawful because they are contrary to the underlying purpose of this part of the Immigration Rules;
b) That the DVILR unlawfully discriminate against victims of transnational marriage abandonment;
c) That the failure to grant Indefinite Leave to Enter is unlawful as being contrary to the Defendant's Leave Outside the Rules policy;
d) That the failure to grant Indefinite Leave to Enter is contrary to s.55 of the Borders, Citizenship and Immigration Act 2009;
e) That the failure to grant Indefinite Leave to Enter is contrary to Article 8 of the European Convention of Human Rights ("ECHR").”
At para. 20 of the judgment, the judge sets out the criteria for grant of ILR on the basis of domestic abuse. Part of the criteria require the applicant to be in the UK. Of course, no victim of spousal stranding can meet that criteria. Accordingly, it was argued that the DVILR (At Appendix FM of the Immigration Rules) effectively excluded such victims from obtaining relief. The judge summarised the position at para. 21, as follows:
“The effect of these provisions is that if the applicant was the partner of a UK citizen or a person with settled status; is present in the UK; and is the victim of domestic abuse, then they will (subject to the other criteria) be entitled to indefinite leave to remain. It is the Claimant's case that at least one reason for the apparent growth in TMA is an attempt by the perpetrators to evade the effect of the DVILR, because if the victim is not present in the UK they cannot take advantage of these provisions. The effect is to leave the abandoned spouse overseas with no legal right to return to the UK.”
The judge considered the first two grounds to be important and requiring of determination, notwithstanding that the mother had been permitted to renter the UK. The judge considered the final three grounds to be academic, and so did not determine them.
Ground 1 - determination
The judge deals with Ground 1 at para 47 onwards. Ultimately, that ground was dismissed and so no further summary is required.
Ground 2 - determination
The mother’s argument is set out at para 58, as follows:
“Ms Chapman submits that the failure to make provision in the Immigration Rules for victims of TMA is in breach of Article 14 read with Article 8 of the European Convention on Human Rights ("ECHR") under the Human Rights Act 1998. She says that women who are the victims of spousal abandonment are given the protection of the DVILR if they are present in the UK when they are abandoned, but if they are tricked or persuaded by their abusive partners to travel to a third country (usually the country of origin) then they have no protection. She submits this is unlawful discrimination lacking in any rational justification.”
The judge held as follows:
“78. The women in these cases are the victims of a very serious form of domestic abuse, often involving serious physical and psychological harm. In many if not most cases they will either have been separated from their children or it will be impossible for their children to return to the UK, even where they are UK citizens, without leaving their mothers. The impact on the Article 8 family rights of the victims is therefore very great. The Defendant does not argue that such women should not ultimately be admitted to the UK or are an inappropriate call on UK resources.
79. In my view the justification advanced is therefore not proportionate to the interference with Article 8 rights, and the differential treatment between victims of spousal abandonment inside and outside the UK is not justified and therefore is in breach of Article 14 and of the Human Rights Act 1998.”
Conclusion
The issues that arose in this case are significant. It is a source of endless frustration for those that practice in stranded spouse cases that however quickly the Family Court moves, and whatever determinations they reach about what is best for the children, the efforts of judge’s to restore a child to the care of their stranded parent can be frustrated, whether temporarily or permanently, by the Home Office refusing the mother permission to re-enter the UK or by the decision taking so long that the courts decision cannot ultimately be put into effect.
The least that can be hoped is that this judgment can be relied upon by applicants for leave to enter following a stranding, to improve their chances of having a swift decision taken on their application, and their chances of the application being successful. It would, however, be more useful to people in that situation for the rules to be amended to include victims of transnational marriage abandonment within the DVILR. The ultimate outcome of this JR is not yet known. The judgment concludes by recording that the judge would invite further submissions on the form of order.
