by Pragna Patel, women’s rights activist and former director of Southall Black Sisters
A landmark judgment for abandoned women
As far as outcomes of campaigns involving immigration rules are concerned, this one was relatively quick in achieving the desired result. It took only 7 years. In 2015, as the director of Southall Black Sisters (SBS), I initiated a campaign for legal reform in respect of women who are brought to the UK upon marriage by their abusive spouses and then dumped abroad when they are no longer wanted, leaving them in situations of shame, destitution and precarity. These women face considerable immigration delays and obstacles in returning to the UK to exercise their rights under family and immigration law. But this is all set to change thanks to a landmark High Court judgment given in October 2022 that makes clear that the Home Office’s failure to make provision for abandoned spouses amounts to unlawful discrimination within the meaning of Article 14 of the European Convention on Human Rights (“ECHR”), read with Article 8 (which protects the right to family life), under the Human Rights Act 1998.
You can read the judgement here: AM, R (On the Application Of) v Secretary of State for the Home Department [2022] EWHC 2591 (Admin) (14 October 2022)
Transnational Marriage Abandonment
The phenomenon known as Transnational Marriage Abandonment (TMA), or ‘stranded spouses’, is a form of violence against women that occurs in transnational spaces due to the overlapping processes of migration and marriage. It refers to the plight of married women who are deliberately left without resources in their countries of origin by their overseas partners on whom they are entirely dependent for their social and financial survival. TMA is a form of domestic abuse in itself since it always occurs in the context of other forms gender-based harm and is part of the dynamics of coercive control that women suffer at the hands of their husbands and in-laws. Sometimes women are cruelly separated from their children, while others are abandoned with their children. They are left trapped in abusive and limping marriages and in circumstances that involves a deliberate violation of their legal rights to protection, support and rehabilitation in the UK as victims of domestic abuse. The transnational nature of this problem raises specific challenges for women seeking justice, mainly because it is located across a number of jurisdictions which gives nation-states an excuse to avoid taking responsibility. Until the High Court case, the plight of abandoned women was unacknowledged in UK immigration law and policy.
“TMA is a form of domestic abuse in itself since it always occurs in the context of other forms gender-based harm and is part of the dynamics of coercive control that women suffer at the hands of their husbands and in-laws
In 2015, in the light of increasing demands from women stranded overseas, sometimes with and sometimes without their children, I sought legal expertise from barristers at Garden Court Chambers to develop legal strategies and remedies to address the problem. Garden Court Chambers agreed to facilitate a roundtable discussion on the issue that involved bringing together family and immigration law experts to explore the issue in more depth and to identify the necessary legal reforms in the areas of concern. Over the following years, these discussions formed the basis of SBS’ engagement with key judicial and government bodies as we sought to raise awareness of the issue and to bring about much-needed changes to family and immigration law and policy.
In April 2016, SBS set up a working group of family law experts and took a delegation to the then-President of the Family Division, Sir James Munby, with the aim of securing positive outcomes for abandoned women in the family courts. Between October and December 2016, members of the working group published a series of articles on TMA in the Family Law Journal to highlight this and related issues, and to make recommendations for legal reform. In May 2017, SBS was invited by Sir James Munby to deliver a presentation on TMA to senior family court judges. As a direct result of these meetings, for the first time, TMA was defined as a form of domestic abuse and included in the revised Practice Direction 12J: Child Arrangements and Contact Orders: Domestic Abuse and Harm, which came into force on 2 October 2017. This small step has led to profound changes in relation to abandoned women’s access to legal aid - and therefore justice - precisely because it is defined as a form of domestic abuse. It has also empowered family court judges to make orders seeking the return of women and children abandoned abroad.
Following this successful outcome, we turned our attention to immigration law and policy with the aim of seeking reforms that would allow abandoned women to return to the UK to exercise their rights. We argued that, but for their abandonment, the same women would be entitled to remain in the UK indefinitely under the Domestic Violence (DV) Rule if they met the relevant criteria. In the face of Home Office intransigence and indifference, a survivor of abuse and abandonment (AM) represented by Islington Law Centre and Garden Court Chambers brought a legal challenge against the Home Office.
AM’s Story
AM’s story is typical of abandonment cases. She is a Pakistani national who married a British citizen and came to the UK in 2017 on a spousal visa to join him. She was subjected to a campaign of coercive control and domestic abuse that involved severe physical, emotional, sexual and financial harm that left a long-lasting impact on her health. As part of the abuse, her husband deceived her into going to Pakistan and shortly afterwards, abandoned her and returned to the UK with their daughter who was only two years old at the time. AM could not return to the UK as her husband had retained all her travel documents. Initially, AM struggled to find help and advice in returning to the UK but eventually months later, with the help of SBS, AM instructed family and immigration solicitors in the UK so that she could return to the UK to be reunited with daughter.
Through her immigration solicitor, AM made an application for indefinite leave to remain in the UK as a victim of domestic abuse under the DV Rule but this was refused. Eventually, eight months later, she managed to obtain a six-month visa for leave to enter outside the immigration rules but with the condition that she had no recourse to public funds. Even though the Home Office subsequently granted AM indefinite leave to remain in the UK, she was keen to pursue a judicial review against the Home Office’s failure to make provision in policy for abandoned spouses despite having agreed to do so since 2016, following regular meetings with a Home Office working group that was co-ordinated by SBS.
A Far-Reaching Judgment
It was argued on AM’s behalf that the failure of the Home Office to treat abandoned women in the same way as victims of domestic abuse with spousal visas who are in the UK amounts to unlawful discrimination. Citing evidence that I provided of the issues involved and the lack of engagement by the Home Office, Mrs Justice Lieven allowed the judicial review. She agreed that the case raised issues of wider public importance and that without a remedy abandoned women and children would be left in situations of immense hardship and injustice. Delivering the all-important judgment, she found that the Home Office’s differential treatment of victims of TMA compared to victims in-country was discriminatory since the underlying purpose of the DV Rule is to protect women from domestic abuse. This means that the Home Office will now have to develop a policy to make provision for abandoned women to return to the UK.
It is a far-reaching judgment that will assist many abused women who are left stranded abroad by their perpetrators. Hopefully, it will close a gap in protection that has allowed perpetrators of domestic abuse to act with impunity.
The judgment is all the more remarkable because it is rare for a court to uphold a claim of discrimination under Article 14 against the Home Office. The fact that it was given against the background of an ultra-hostile environment immigration policy makes it even more significant because it helps to counter the despair that often engulfs those of us not used to seeing instantaneous progress in the struggle for migrant rights and justice.
The outcome represents the next stage in a campaign that began 30 years ago which led to the introduction of the DV Rule in 2002 and the DDVC in 2012. But the battle is far from over: we now turn our attention to the Home Office to ensure compliance with the judgment through the creation of a meaningful policy on TMA. We cannot and must not fail at the last hurdle.