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Stranded spouses: a convenient form of child abduction


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Child abduction is a criminal offence. It requires covert departure from the UK to another country, and from the abductor’s point of view preferably one that is not in Europe, not a signatory to the Hague Convention and that does not have a bilateral agreement with the UK. The incredibly extensive powers available to the High Court include ‘port stop’ orders for prevention of undetected departure or entry and obtaining various records of the abductor and family members from third parties in order to locate the missing child. All this is intended to and does make child abduction very difficult and very risky.

Some parents, though, have cottoned on to the use of a loophole in immigration laws that allow a very effective form of child abduction without any of the inconvenience. All the cases I have seen or heard of have involved a female foreign spouse. Unlike in forced marriage cases or conventional child abductions, Government officials turn a blind eye. And recent immigration law changes exacerbate the situation for victims, who are not just the stranded spouses but also the children.

When a foreign spouse enters the UK, he or she is now granted five years of permission to stay, which can be upgraded to permanent settlement (‘Indefinite Leave to Remain’) at the end of that period. The initial grant of entry, often called the probationary period, used to be two years until July 2012. Children may well be born during that period. Any such children will be born British citizens.

A de facto or proxy abduction can occur where the foreign spouse is taken to her home country to visit relatives or on holiday. Her passport, which includes the visa allowing re-entry to the UK, is taken away and she is left behind when the rest of the family return to the UK.

In the case of Re S (A Child) (Guidance in cases of stranded spouses) [2010] EWHC 1669 (Fam) Mrs Justice Hogg  described the practice as

…a chillingly callous way of behaving towards a young and new mother and towards a very young newborn baby… It is something which is abhorrent and unfeeling towards a child and mother. It is selfish and cruel by those who do it.

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.

In Re S this is exactly what happened and Hogg J recorded her plea to immigration officials and to Ministers to make proper future arrangements for the return to the UK of a mother caught in this situation. She also issued very useful guidance on how judges and lawyers might handle such cases in future.

An affected child should be made a Ward of Court (see old post on wardship) and the case handled in the Family Division of the High Court. Powerful Tipstaff Orders should be made to assist in locating and returning the child. The immigration authorities should be engaged, as far as possible, and expert immigration advice should be considered. An order should be considered requiring the foreign parent to attend in person in the UK and the immigration authorities invited to assist.

Even then, obdurate immigration officials can and do still refuse to facilitate return.

There are further remedies that can be pursued. An mandatory order for return can be sought as interim relief in a judicial review claim or potentially as part of the family proceedings. If a visa application gets as far as being formally refused it can form the basis of the judicial review. The human rights of the stranded spouse and the best interests of the children can be pleaded.

The UK-based parent can be summoned to court and sanctions pursued, including contempt of court. Nevertheless, the UK-based parent cannot issue a new passport or visa. An immigration official must do that.

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.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.


11 Responses

  1. Excellent article, but where you write ‘When a foreign spouse enters the UK, he or she is now granted five years of permission to stay’ they are not granted 5 years of permission to stay, they are granted 2 and a half and then they have to extend it again to get another 2 and a half. Maybe I am being over the top but thought there was no harm in commenting. I really appreciate the work you do with the Free movement blog.

  2. “while the courts prod and cajole indifferent officials”. Sorry to be dense, but how did it come to pass that no court can make an order binding ECOs to act in such situations?

    The problem could be easily solved by a willing government making appropriate changes to the rules. I don’t know why this hasn’t happened, it is something different from debates about levels of immigration.

    1. That is an option I’m currently exploring with the family lawyers in one of the two cases I mentioned. It isn’t straightforward, though, as getting a judicial review of the refusal of the visa is hard given the court fees and funding and the difficulty taking instructions, and also it doesn’t make sense to create parallel proceedings in the Administrative Court of the High Court, it would be better to stay in the Family Division. But Family Division judges are paranoid about interfering in immigration functions, based on some very different and distinguishable cases.

      An appeal to the immigration tribunal would take too long and the tribunal has no real teeth for enforcement either.

    1. Thanks. I just don’t know, I’m sorry. I don’t think anyone keeps track. There are a few family lawyers who act in these sorts of cases who must handle a fair few every year. Certainly the judgment I mentioned in the post refers to it being a known problem with judges. And presumably the few who are able to get help in the UK through the family courts are atypical – many probably never manage to deal with the situation.

  3. On a similar note, I’m often left wondering whether a ‘forgotten’ expiry date on limited leave as a spouse has been used to make a foreign national spouse more vulnerable and thus easier to abuse at home. I know it’s been a feature in some specialist DV cases dealt with by collagues.

    It’s a wider issue where government policy on limited leave is leaving people open to all kinds of abuse.

    1. That is undoubtedly a real problem, and it was raised even back when Blunkett increased the probationary period from one year to two. That was when the domestic violence concession was incorporated into the rules.

  4. Very timely article Colin just had such a case in the family courts only my client managed to come back to the UK despite being told the UKBA had cancelled her return flight and she no longer has a valid visa and they would financially support her in her country of origin. I had no idea this happening so often. Real cause for concern.

  5. I’m afraid that I’ve heard that this kind of move is used to get points on social housing lists, so you can become a landlord. You apply for a 2 bedroom council flat on the basis of your and your spouse and baby’s needs. Then you get rid of the spouse and baby and end up with a 2 bedroom flat which you can sub-let and eventually buy (and sell….)

  6. I also come across many clients who are living in a limbo as their partner has not supported their ILR applications or some in their extension application. The cause for concern in these cases are that there is often an element of abuse, clients are vulnerable and have no family for support. This whole 5 year provision has increased the risk of abuse as foreign spouses often feel they must put up with this abuse until they obtain ILR, which has now been dragged out. Sadly, in many cases the abuse only subsides when the foreign national obtains ILR status and they often stay in that relationship in this hope.

  7. The destitute domestic violence concession is available for migrant spouses provided they can provide the appropriate evidence that the marriage broke down as a consequence of domestic violence. The concession is only available to spousal visa holders however. Whilst the DDVC has the possibility of being viewed a silver lining approach unfortunately many immigrant women experiencing domestic abuse have difficulty accessing the concession as they are unaware of its existence and for various reasons are unable to express the gravity of their situation to the relevant authorities. Additionally the new minimum income rules mean that migrant woman may enter the UK without their children.