Migrants who are in the United Kingdom as the partner of a British citizen can apply for indefinite leave to remain if that relationship breaks down permanently because of domestic abuse.
However, if that migrant is outside of the United Kingdom, they cannot apply for indefinite leave. That is because the wording of the Rules makes clear that the application can only be made from inside the United Kingdom.
This becomes a particular problem for migrants (usually women) who are victims of transnational marriage abandonment. This is a phenomenon whereby an abusive partner deliberately removes their partner from the United Kingdom, often by deception, and then leaves them stranded abroad. Common features of transnational marriage abandonment include taking away the woman’s visa and travel documents and the abusive partner contacting the Home Office to declare that the relationship has ended so that the woman’s visa is curtailed. These women have no recourse under the Immigration Rules to return to the United Kingdom, whereas if they were still in the United Kingdom, they would be eligible for indefinite leave to remain. This is the case even though transnational marriage abandonment has been recognised in the Family Courts as a form of domestic violence.
Nath Gbikpi set out this issue in further detail in an earlier blog.
On 14 October 2022, the High Court found that by treating victims of domestic violence differently depending on whether or not they are in the United Kingdom, victims of transnational marriage abandonment are being unlawfully discriminated against. The Home Office will now have to introduce new Rules and guidance to ensure that victims of transnational marriage abandonment are treated the same as victims of domestic violence who are in the United Kingdom. This should mean that they will be able to apply for indefinite leave to enter.
In the meantime, however, many women will have been excluded from indefinite leave on the basis of this discriminatory treatment. Some may have returned to the United Kingdom on different visas. It remains to be seen whether the Home Office will allow them to apply for indefinite leave to remain, too.
Our Diana Baxter wrote a detailed analysis on this issue on Lexis Nexis.
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