Last week, I received a refusal on a visa application for a client, married to a British citizen, who was a victim of domestic abuse in the UK. The domestic abuse culminated in her being abandoned abroad. We call this phenomenon “transnational marriage abandonment”. Southall Black Sisters describe it as
the deliberate removal of vulnerable migrant women from the protections of this country by their husbands and in-laws who discard them abroad as if they were disposable commodities. It is an extreme form of psychological abuse since it denies women access to justice in the UK. It amounts to a gross violation of dignity and human rights.
Transnational marriage abandonment was recently recognised as a form of domestic abuse in the Family Procedure Rules 2010.
My client, as many others, had been told by her husband and in-laws that they would go to her country for a 3-month holiday. Once there, her spouse took her and her British citizen child’s passports and left. They were effectively stranded abroad with no means of returning to the UK.
We applied for a visa for my client asking that she is granted indefinite leave to enter as a victim of domestic abuse. The application was refused.
What are the provisions for victims of domestic violence, and why do we need them?
The Immigration Rules make provision for partners of British or settled citizens to apply for indefinite leave to remain if they are in the UK on the basis of their relationship, and the relationship breaks down as a result of domestic abuse.
Provisions for migrant domestic abuse victims were first introduced in 1999, following campaigning by Southall Black Sisters. When the issue was debated in the House of Commons back in June 1998, the then Parliamentary Under-Secretary of State for the Home Department stated
when the overseas spouse becomes the victim of domestic violence during her first year here, she faces the prospect either of staying within that violent relationship or of being refused settlement if she escapes from it, because the marriage would then no longer be subsisting
The idea was that those migrants whose right to reside in the UK depended on their relationship with their British or settled spouse should be allowed to remain in the UK even after the relationship broke down, if the reason for the breakdown was domestic violence. If not, they would be faced with the impossible choice of staying in an abusive relationship to be able to remain in the UK on the one hand; or leaving the UK on the other hand.
Why do the rules not work for victims of transnational marriage abandonment?
Unfortunately, one of the requirements to be granted indefinite leave to remain as a victim of domestic abuse is to be in the UK at the time of the application. This means that victims of transnational marriage abandonment, who have been recognised as victims of domestic abuse, cannot make use of these provisions.
There is no rational reason not to allow victims of domestic abuse to apply for indefinite leave from abroad. When the provisions were first introduced, the Home Office accepted that individuals who came to the UK as partners, with an expectation to settle in the UK, should be allowed to stay even if their relationship breaks down because of domestic violence. Domestic abuse victims who are stranded abroad had the same expectations.
Once it is accepted that transnational marriage abandonment is a form of domestic abuse, the requirement to be in the UK at the time of application creates a fundamentally flawed system which prevents victims of domestic abuse to apply for indefinite leave on the grounds that…they are victims of domestic abuse!
Not being able to return to the UK also often prevents these persons from initiating, let alone engaging effectively with, family and criminal law proceedings. They may be prevented from seeing their children; claiming financial maintenance; or bringing their perpetrator to justice. On return to their country, they may be stigmatised and discriminated against for having been abandoned. An excellent study by the University of Lincoln on this topic highlighted how:
In the case of transnational marriages, abandonment is embedded within a pattern of domestic violence and coercive control exercised over the woman. Additionally, by strategically abandoning their wives in their home country and then filing for divorce in foreign courts, transnationally mobile South Asian migrant men make it almost impossible for their wives to participate in legal proceedings. These actions by husbands deprive women of their financial rights such as an equitable settlement upon divorce, child custody and recovery of dowry. The impact of abandonment also creates contexts for further forms of violence against women due to the stigma associated with divorce, women’s vulnerability within natal families and issues related to inheritance and residence arrangements within the natal home after divorce. This research shows that beyond the various processes of control and individual acts of harm that lead to and outlast the act of abandonment in transnational marriages, abandonment itself constitutes a form of violence against women. It is rooted in and results in gendered devaluation of women and is enabled by gender-blind transnational formal-legal frameworks, which construct abandoned women as an inferior class of citizens and as a category of women who can be abused and exploited with impunity.
Not allowing victims to return to the UK perpetuates this cycle of abuse, preventing them from access to justice and reparation, effectively cooperating with the abuser and allowing British citizens who have sponsored their foreign spouses to come to the UK to abuse of their position of power and be perpetrators of domestic violence with impunity.
What can the Home Office do?
Credit where credit’s due, some sympathetic Home Office caseworkers have assisted us in bringing stranded spouses back to the UK by allowing us to make applications outside of the rules. Typically, our clients would be granted visas valid for 1 month, 3 months or 6 months and, once in the UK, we would apply for indefinite leave to remain relying on the domestic abuse provisions. Those applications have generally been successful.
This is, however, a fundamentally unfair system, where only those few privileged persons who manage to get hold of legal representatives who manage to get hold of sympathetic caseworkers have a chance to return to the UK. Anyone familiar with the current immigration system will know that only a handful of people will fall in this category.
Even then, the recent refusal of my client’s application shows that relying on the discretion of sympathetic caseworkers does not always work.
There is, however, a very simple solution: amending the one sentence in the rule that requires victims of domestic abuse to be in the UK. This will open up provisions which already exist to protect victims of transnational marriage abandonment, and will show that the Home Office and British government are serious about their commitment to protecting victims of domestic abuse.