Personal Immigration

Landmark High Court Case on Transnational Marriage Abandonment

4th November 2022 By Andrew Jones

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.

If you require advice in relation to the above, we would be happy to help. Please contact us on 020 7401 6887 or by email at contact@gryklaw.com.

No Recourse to Public Funds – What does it all mean?

24th June 2021 By wesleygryk

S.115 of the Immigration and Asylum Act 1999 states that a person will have ‘no recourse to public funds’ if they are ‘subject to immigration control’. This means they have no entitlement to most welfare benefits, including income support, universal credit, housing benefit and a range of tax credits.

People ‘subject to immigration control’ include those with limited leave to remain, and this also extends to family members. For example, spouses/partners, children, adult dependant relatives and parents of children in the UK all have this condition imposed on their leave in these cases. Additionally, this is commonly imposed on asylum seekers and those who have overstayed their visas.

Failure to comply with the No Recourse to Public Funds condition may result in:

Your current permission to stay in the UK being revoked
Refusal of your visa extension application
Refusal of future settlement applications, including Indefinite Leave to Remain (ILR) or British citizenship.

Applying for a change of conditions

Paragraph GEN.1.11A of Appendix FM provides that certain types of leave will normally be granted subject to a condition of no recourse to public funds, unless the applicant has provided the decision-maker with:

(a) satisfactory evidence that the applicant is destitute as defined in s. 95 of the Immigration and Asylum Act 1999; or

(b) satisfactory evidence that there are particularly compelling reasons relating to the welfare of a child of a parent in receipt of a very low income.

For these purposes, a person is ‘destitute’ if they do not have adequate accommodation or enough money to meet living expenses for themselves and any dependants.

When leave has been granted subject to a condition of no recourse to public funds, an application must be made to lift that condition before public funds can be accessed. The Home Office provides for two circumstances in which a person can apply for a change of conditions:

since being granted leave, your financial situation has changed and you have become destitute, or there are now particularly compelling reasons relating to the welfare of your child on account of your very low income, or there are now exceptional circumstances in your case relating to your financial circumstances; or
you were destitute, or there were particularly compelling reasons relating to the welfare of your child on account of your very low income, or there were exceptional circumstances in your financial circumstances at the time of your application, but you failed to provide evidence of this and would now like to rely on this.

You may be able to apply for this change of conditions to allow access to public funds if you have leave to remain under the 10-year parent or partner route, and where the refusal of your application for leave to remain would breach your rights under ECHR Article 8 (the right to respect for private and family life).

If you require immigration advice in relation to the issues above, we can help. Please contact us on 020 7401 6887 or by email at contact@gryklaw.com

Long residence ILR: what are the rules on absences from the UK?

15th April 2021 By Andrew Jones

Where a migrant can show that they have lived in the United Kingdom for at least a continuous, lawful 10-year period, they may be eligible for apply for indefinite leave to remain (‘ILR’).

However, one potential sticking point is whether they have been outside of the United Kingdom for too long. That is because the Immigration Rules say that for the period to be “continuous”, the applicant cannot have spent more than 18 months in total outside of the country during those 10 years, or any single absence of six months or more.

The Home Office guidance states that six months is calculated as 180 days and 18 months is calculated as 540 days. The Home Office interprets this very strictly and will only make exceptions to these limits in “compelling or compassionate circumstances”. There have been several stories in the news where applicants have been refused ILR due to their excessive absences, despite having perfectly good reasons for being outside of the country for as long as they were. Unfortunately, in the eyes of the Home Office, the reasons were not compelling enough.

Recently, the Upper Tribunal (Immigration and Asylum Chamber) looked at how the Home Office should be interpreting this rule. In particular, it looked at whether the limit is, in fact, 540 days. The Rules state that the applicant must not have been absent for 18 months – but how long is 18 months? A month is not a fixed period of time. The Home Office argued that a month should be interpreted as being 30 days long, which is how they calculated the limit as being 540 days. The Upper Tribunal disagreed and ruled that 18 months is 548 days and that the Home Office guidance was wrong.

On the face of it, this is not a big difference. However, it did make a big difference to Mrs Chang, whose appeal was being considered by the Upper Tribunal. She had been absent from the United Kingdom for 543 days during the 10-year period she was relying upon. As an illustration of how strict the Home Office is on this issue, her application was refused for that reason. Happily, after the Upper Tribunal decision, she will now be granted ILR.

We have a lot of experience making ILR applications on this basis, including advising clients on how to deal with excessive absences. If you have spent more than 10 years lawfully resident in the United Kingdom and would like advice or assistance on applying for ILR, please feel free to contact us on 020 7401 6887 or by email at contact@gryklaw.com.