Immigration Solicitors Breaking News- High Court Case Offers Hope to Holders of Spouse Visas Abandoned Overseas
If you came to the UK on a spouse visa with the expectation that you would spend the rest of your days in the UK with your spouse and your children, imagine your horror if you are abandoned overseas with no right to re-enter the UK on your spouse visa. That is what is called transnational marriage abandonment and UK immigration solicitors and family lawyers have long called for the practice to be declared unlawful.
In a landmark court case concerning transnational marriage abandonment, the judge held that a spouse was unlawfully discriminated against. This decision will help others in a similar position.
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For advice on spouse visas or indefinite leave to remain call the expert London immigration lawyers at OTS Solicitors on 0203 959 9123 or contact us online.
What is transnational marriage abandonment?
Transnational marriage abandonment is the abhorrent practice of a British citizen or person with settled status in the UK marrying a non-British partner who enters the UK on a spouse visa. The visa holder is then deliberately abandoned overseas by their British husband or wife. In some cases, the abandoned spouse not only loses their home and new way of life but more importantly contact with their children.
Typically, an abandoned spouse is a woman who is returned to her home country of Bangladesh, India, or Pakistan. However, transnational marriage abandonment can take place with men being abandoned in Nigeria or other countries, having been left overseas by their British wives.
If you are in the UK on a spouse visa and your relationship breaks down because of domestic violence you can apply to the Home Office for indefinite leave to remain using a concession for victims of domestic violence. This concession enables you to apply for ILR even though you may not meet the normal 5-year residence requirement for an ILR application.
Many spouse visa holders do not realise that the ILR domestic violence concession is not limited to physical harm. An applicant can use the concession if they have been subjected to any type of domestic abuse, such as emotional or psychological abuse or financial control, or coercive and controlling behaviour.
If you leave the UK and you are abandoned overseas by your husband or wife then under the immigration rules, you cannot use the Home Office concession for victims of domestic abuse to apply for their spouse visa to be converted to indefinite leave to remain status.
In many cases of transnational marriage abandonment, the victim has thought that they are returning to their home country for a holiday only to be abandoned overseas without their passport or other documents. Cynics would say that it is a case of a problem dumped to avoid protracted UK child custody and contact proceedings or a bitter divorce financial settlement case if the abandoned spouse is unable to exert their rights from where they have been left and they cannot return to the UK because they do not have their passport or travel paperwork or a right of UK re-entry or the means to fund a court case.
The case of AM v Secretary of State for the Home Department
The 2022 high court case of AM v Secretary of State for the Home Department involved the case of a woman abandoned in Pakistan by her British husband and separated from her daughter aged 2. She has won her high court case but by the date of the court hearing, the Home Office had already granted AM indefinite leave to remain so her court win is a victory for other victims of transnational marriage abandonment.
The case of AM concerned a wife and mother who entered the UK on a spouse visa and a year later she gave birth to her daughter. Just over 2 years after the child’s birth the mother was abandoned in Pakistan with her husband leaving her without travel paperwork and returning to the UK with the child. It took AM around 8 months to get back to the UK, during which time the mother did not see her daughter.
If AM had been in the UK at the time her husband removed her daughter from her care, she could have pursued a range of legal remedies from domestic violence injunction applications to a child arrangement order application for custody of her child, a divorce financial settlement and, of course, made an application for indefinite leave to remain using the domestic violence concession. She could not make an indefinite leave to remain from Pakistan because the immigration rules say that to use the domestic violence concession the ILR application must be made from within the UK.
AM was able to return to the UK by applying for UK entry clearance under the leave outside of the rules. She asked for indefinite leave to remain based on the history of domestic violence within the relationship culminating in her abandonment overseas by her controlling husband. As AM was initially only granted 6 months of entry clearance, she brought the court proceedings. By the date of the court hearing AM had been granted indefinite leave to remain by the Home Office but the court was still asked to make findings.
The court found that:
- There is a considerable risk of injustice and hardship to the victims of transnational marriage abandonment and their children without court findings being made
- Victims of transnational marriage abandonment are in a similar position to spouses who have experienced domestic abuse whilst married and living in the UK on a spouse visa, the only difference being their geographic location
- The different immigration treatment between victims of transnational marriage abandonment that takes place in the UK or overseas is not justified. As the difference in treatment is not justified there is a breach of Article 14 and the Human Rights Act
Help for victims of transnational marriage abandonment
Spouse Visa Solicitors recognise that the case of AM v Secretary of State for the Home Department will be of tremendous benefit to other victims of transnational marriage abandonment who are in limbo pending the Home Office reviewing and changing the immigration rules.
If you or a family member or friend is a victim of domestic violence in your marriage whilst you are in the UK then Spouse Visa Solicitors can help you with an application for indefinite leave to remain using the domestic violence concession. At OTS Solicitors we combine specialist immigration and family law expertise. Our family lawyers can help you with divorce proceedings as well as child custody applications and getting a fair financial settlement. If you or a relative or friend has been sent overseas in a case of transnational marriage abandonment it is important to put in an application to return to the UK and secure indefinite leave to remain as soon as possible, citing the case of Re AM in support of the application to return to the UK. This application can be made whether the spouse visa holder had children with their partner or not.
If you need help with your spouse visa or an application for indefinite leave to remain using the domestic violence concession our friendly and supportive Spouse Visa Solicitors and family lawyers can help you and your family.
UK Online and London-Based Immigration Solicitors and Spouse Visa Solicitors
For advice on spouse visas and indefinite leave to remain applications call the immigration lawyers at OTS Solicitors on 0203 959 9123 or contact us online.
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