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Lack of route for victims of transnational marriage abandonment is unlawful, High Court finds￼
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There is no good reason to treat victims of transnational marriage abandonment differently from victims of domestic abuse in the UK. So found Lieven J in the case of R on the application of AM v Secretary of State for the Home Department  EWHC 2591 (Admin).
Avid readers of Free Movement, and anyone who has spoken to me about immigration law for more than 10 minutes, would have heard of transnational marriage abandonment. More details can be found in this blog post but, in summary, it is the phenomenon by which a person deliberately abandons their partner abroad and takes steps to prevent their return to the UK. It often follows a history of domestic abuse and is the ultimate form of controlling behaviour.
AM was a textbook case of transnational marriage abandonment. She was a Pakistani national married to a British citizen. She suffered severe financial, physical, emotional and sexual abuse at the hands of her husband for years while in the UK on a spouse visa. One day, her husband effectively forced her to travel to Pakistan along with their then 2-year-old daughter. Once in Pakistan, he took her travel documents away from her and, unbeknown to her, came back to the UK with their daughter. It took AM 8 long months to see her daughter again.
Had she been in the UK, AM would have been able to apply for indefinite leave to remain as a victim of domestic abuse, relying on Section DVILR: Indefinite leave to remain (settlement) as a victim of domestic abuse, in Appendix FM. However, she couldn’t do so from abroad. One of the requirements of the DVILR rules is to be in the UK at the time of application.
AM therefore applied for leave outside of the rules and asked to be granted indefinite leave to enter on the basis that she was a victim of domestic abuse. The Home Office only granted her leave outside of the rules valid for 6 months, with no recourse to public funds. AM challenged the decision.
The challenge to the rules for settlement as a victim of domestic abuse
By the time the case came in front of the Administrative Court, AM was back in the UK, and the Home Office had granted her indefinite leave. They argued that, as AM’s status had been solved, the case was academic. Lieven J disagreed on the basis of the evidence presented to her regarding the phenomenon of transnational marriage abandonment, finding that:
“There is […] considerable risk of injustice and hardship both to the women concerned, and their children, if this issue is not determined. There may also be a cohort of women who never do get the correct advice and are therefore hidden from any statistics as to the breadth of the problem.”
Moving on to the challenges to the rules, Lieven J found that victims of transnational marriage abandonment are in an analogous situation to victims of domestic abuse in the UK. They have the same expectation of settlement in the UK and suffered the same form of domestic abuse. The sole difference is that the former are abroad while the latter are in the UK.
To the question of whether, given their analogous situation, there was a legitimate aim in treating the two cohorts differently, Lieven J went as far as to find that:
“There does not appear to be an “aim” in not making Rules, it is simply that the Defendant has not addressed her mind to the issue or has not yet formulated the proposed Review. […] at some point, a rational justification must be advanced.”
Lastly, Lieven J found that the impact of a lack of provision in the rules for victims of transnational marriage abandonment was “very great”, and not proportionate to the interference with their Article 8 rights. On that basis, she concluded that:
“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.”
What does this mean for victims of transnational marriage abandonment?
The Home Office has confirmed that they do not intend to appeal the judgment. As the Judge found that they are in breach of the Human Rights Act, they will need to remedy that breach.
In practice, as the finding is that there is no justification to treat victims abroad and in-country differently, I believe the Home Office will need to do two things. First, amend the Rules to include victims of transnational marriage abandonment and allow them to apply for indefinite leave. Secondly, potentially create a concession similar to the destitute domestic violence concession, allowing victims of transnational marriage abandonment to get to a position of safety before they are able to apply for indefinite leave.
We know all too well that the Home Office is not the speediest of departments, and so it is likely it will take some time for them to implement the changes. Lieven J consistently referred to the fact that the Home Office has been “considering” the situation of victims of transnational marriage abandonment for a long time, pointing out that a number of organisations have been raising the issue since 2016. But there has been “no progress in either setting up a formal review or any other active step to removing the differential treatment in the Rules”. In the meantime, practitioners supporting victims of transnational marriage abandonment stranded abroad should rely on the judgment to argue for their immediate return to the UK.