The defendant, AM, was represented by Rebecca Chapman of Garden Court Chambers, instructed by Nath Gbikpi and Roopa Tanna of Islington Law Centre.
In R on the application of AM v SSHD [2022] EWHC 2591 (Admin) Lieven J held that victims of transnational marriage abandonment are in an analogous position to victims of domestic abuse in the United Kingdom. However, while victims of domestic abuse in the United Kingdom can, provided they meet other requirements, apply for indefinite leave to remain; victims of transnational marriage abandonment abroad did not have this option. On this basis, Lieven J concluded that the failure by the SSHD to make provision for this cohort within the Immigration Rules and policy guidance unlawfully discriminated against them and was a disproportionate interference with their article 8 rights.
Background: victims of transnational marriage abandonment and the domestic abuse rules
Transnational marriage abandonment occurs when a person deliberately abandons their partner abroad, generally in their country of origin, with the aim of preventing their partner from returning to the UK. It typically follows a pattern of domestic abuse and controlling behaviour, and is, in and of itself, domestic abuse.
The Immigration Rules recognise that spouses whose leave to remain in the UK is based on their relationship with their British or settled partner are at risk of remaining in an abusive relationship for fear of losing their right to stay in the country. This is why, in 1999, provisions were introduced to allow migrant domestic abuse victims to apply for indefinite leave in the UK [ILR] if their relationship broke down as a result of domestic abuse.
Unfortunately, the Rules are written such that an application for ILR on the basis of domestic abuse must be submitted from within the UK. This meant that the overwhelming majority of victims of transnational marriage abandonment were prevented from benefitting from the Rules and were, in effect, left stranded abroad.
The case of AM
AM’s case is a textbook case of transnational marriage abandonment. AM, a national of Pakistan, married a British citizen and arrived in the UK on a spousal visa. She subsequently gave birth to a daughter, who was also a British citizen. In the UK, AM was subjected to severe financial, physical, emotional and sexual domestic abuse which resulted in long-lasting harm to her health.
AM was then deceived and effectively forced by her husband to travel to Pakistan, where she and her daughter went to stay with her family, and her husband had contact with their daughter for 2 hours daily. 6 days after their arrival, AM’s husband failed to return her daughter to AM and, unbeknown to her, took their daughter back to the United Kingdom, where he was detected by police, AM having reported her daughter’s abduction. AM’s daughter was just 2 years old at the time.
AM was unable to travel back to the UK alone as her husband had confiscated her travel documents. After a failed application for a replacement BRP, AM instructed solicitors at Islington Law Centre, who made an urgent application for a fee waiver. No response was received so an urgent application for judicial review was made and granted in respect of the delay in processing the fee waiver application.
An application for AM to be issued with Indefinite Leave to Enter on the basis of domestic abuse was then made. AM was issued with a visa for 6 months leave to enter outside the Rules with no recourse to public funds. AM returned to the UK and was ultimately reunited with her daughter, albeit this was delayed due to the fact she initially had no accommodation and no recourse to public funds. In total, AM was separated from her 2-year old daughter for over 8 months.
Findings of the Administrative Court
The extant judicial review was of the Entry Clearance Officer’s decision to grant AM only 6 months leave to enter, with no recourse to public funds.
The SSHD subsequently granted AM 30 months leave to remain and then, following the grant of permission to apply for judicial review, she was granted ILR. Consequently, the D’s position was that the claim was academic.
Lieven J held that in light of the judgment in R v Secretary of State for the Home Department ex p Salem [1999] 1 AC 450 and subsequent jurisprudence, the claim was not academic because it involved challenges to the D’s failure to introduce provisions for victims of transnational marriage abandonment. Lieven J found that there was wider significance to these issues and it would be in the public interest to continue, including because: (i) leaving the issues unresolved would involve considerable risk of injustice and hardship to the victims and their children; (ii) of the context of gender-related harm and abuse; (iii) the level of detriment caused to the women concerned and often their children; (iv) the impact on their article 8 rights and (v) the D’s section 55 duty.
Lieven J went on to allow the judicial review on the basis that the failure to make provision for victims of transnational marriage abandonment is unlawful because it discriminates against them on the basis of their location abroad, and that the discrimination has no legitimate aim nor is it proportionate to the interference with the victims’ article 8 rights.
What is next?
The legal team representing AM are still waiting for the approved Order by the Court. They will keep practitioners updated as to developments. They can already confirm, however, that the SSHD does not intend to challenge these findings and therefore she will need to remedy her breach and introduce provisions for victims of transnational marriage abandonment to be treated like their counterparts in the UK, including being able to apply for indefinite leave on the basis of the abuse they suffered.
