How to apply for entry clearance for Victims of Transnational Marriage Abandonment?

Since 31 January 2024, victims of transnational marriage abandonment can apply for a visa to return to the UK. This follows the landmark case of R on the application of AM -v- Secretary of State for the Home Department 2022.

Transitional marriage abandonment refers to the practice where a sponsor or their family abandons the partner abroad, often without financial support, to prevent their return to the UK. This may also involve children, who could be either abandoned with or separated from the partner. It is a coercive and controlling act that leaves the partner isolated, vulnerable, and unable to escape.

Southall Black sisters were on the forefront of the fight for the rights of these migrant victims of domestic abuse and argued that when these women are abandoned abroad it amounts to an extreme form of psychological abuse, and it denies the women access to justice in the UK and amounts to a gross violation of human rights.

Practice Direction 12J of the Family Proceedings Rules 2010 confirms that transnational marriage abandonment is a form of domestic abuse. Until recently immigration law lagged behind family jurisdiction in its response to this phenomenon and women in this position found it very difficult to return to the UK.  Stranded spouses have no recourse to returning to the UK because victims of domestic violence had to be in the UK in order to make an application under Section DVILR of Appendix FM.  In other words, the Rules have created a loophole where abusers can prevent their spouses from exercising their right to apply for indefinite leave to remain as a victim of domestic violence.

In the case of AM -v- Secretary of State, a Pakistani national was married to a British citizen and she suffered severe financial, physical, emotional and sexual abuse at the hands of her husband for years whilst she was in the UK.  One day he forced her to travel to Pakistan with her two-year-old daughter and whilst in Pakistan he took her travel document away and came to the UK with their daughter.  Had she been in the UK she could have applied for indefinite leave to remain as a victim of domestic violence relying on section DVILR indefinite leave to remain (settlement as victim of domestic violence) but as we said above she could not have done it from abroad, therefore she applied for leave outside the Rules and asked to be granted indefinite leave to enter on the basis that she was a victim of domestic abuse.  The Home Office only granted her leave to enter outside the Rules for six months with no recourse to public funds and she challenged that decision.  The decision came in front of the Administrative Court and the Home Office granted her indefinite leave to remain. The Court found that victim of transnational marriage abandonment is an analogous situation to victims of domestic abuse in the UK and they have the expectation of settlement in the UK and suffer the same form of domestic abuse.

Judge Lieven found that the lack of provision in the Rules for victims of transnational marriage abandonment was very great and not proportionate to the interference with their Article 8 rights and therefore she concluded that the differential treatment between victims of spousal abandonment inside and outside the UK is not justified and therefore in breach of Article 14 of the Human Rights Act 1998.  The Home Office did not appeal the Judgment and had to remedy the breach.  Now victims in this position can make an application under the new rule.

The rules for victims of transnational marriage abandonments can be found in Appendix Victims of Domestic Violence that are very similar to the rules for victims of domestic abuse in the UK, although the guidance confirms that the standard of proof that victims of transnational marriage abandonment must meet is the reasonable degree of likelihood while victims of domestic abuse in a country must meet the higher balance of probability standard.

What are the requirements for the application to succeed?

• 1. An application must not fall for refusal under general grants of refusal which are found at Part 9 of the Immigration Rules.
  2. Regardless of whether they are inside or out, in order to be able to succeed, the last grant of leave must be on the basis of the relationship to someone who is a British national or has indefinite leave to be in the UK or is an EA national and has lived under the EU settlement scheme or is refugee. Those who have leave on the basis of a relationship to someone who is not settled such as a relationship with a student, will not be able to use this rule.
  3. The Applicant must show that the relationship broke down due to domestic abuse. The abuser does not necessarily need to be the partner, it could be another family member, as long as the abuse is the thing that led to the breakdown of the relationship.
  4. The requirement of abandonment outside the UK. This requirement is self-explanatory because victims of transnational marriage abandonment must have been abandoned outside the UK.
  5. Tuberculosis (TB) test. An applicant who has been abandoned in a country on the list of tuberculosis or have been there for six months or more will need to take a TB test.

What application form does one need to complete?

Applications are submitted online for return to the UK and if the Applicant is destitute and unable to pay the fee for the application, the Applicant can show that they do not have the means to pay the fees, they will be granted a fee waiver.  If the caseworker is not satisfied that the Applicant is eligible for a fee waiver, they should make additional enquiries.  Applicants will have to attend biometrics at the visa application centre and the guidance confirms that the Home Office can excuse Applicants from this requirement relying on the separate biometric guidance.

The Applicant will have to provide evidence of identity. If an Applicant cannot provide, for example, a valid passport, the application might be rejected as invalid but there is a discretionary element to it.  The caseworkers have discretion to waive this requirement and then ask the Applicant not to submit proof of identity in some circumstances, for example when they have good reasons beyond their control why they cannot provide proof of their identity.  The Home Office in any event should have had a record of their identity and the caseworkers should consult the relevant Home Office records to make a decision and an application.  In practice, lots of victims of transnational marriage abandonments will not have the passport or biometric residence permit because their abusers will often take them away.  If obtaining a new passport is impossible, that should be explained, and the Applicant may use an alternative form of evidence such as national identity or birth certificate.

What evidence is necessary to submit with the application?

There is no mandatory evidence to be submitted, however, we would suggest

• That the Applicant provide a statement outlining:
  1. When and how the relationship started when she relocated to the UK
  2. The history of the domestic abuse in the UK, by whom and in what form and when they travelled abroad
  3. What was their understanding for the purpose and length of travel
  4. What happens once she was abroad, with whom she stayed, when did she realise that she was abandoned and what prevents her from returning to the UK.
  5. If she has children, whether the children are with her or have been separated from her and what difficulty she experienced abroad.
  6. If there has been a delay in making the application, an explanation as to the reason for the delay should be provided and confirm that the relationship ended and ended due to domestic abuse.
• Details of financial circumstances will be relevant if a fee waiver application is being made.
• If there are family proceedings in the UK such as wardship proceedings for the children or previous criminal proceedings or injunctions, this evidence will be helpful and should be provided.
• Before submitting any Family Court Orders one must make sure that she has permissions to do so and should get in touch with a family lawyer to find out whether permission can be obtained from the court and whether the documents can be disclosed.
• If there are other independent evidence of abuse such as text messages or approaching charities in the UK, that should be provided as well.

Grants of status

Successful Applicants will be granted indefinite leave to enter the UK and would be issued a visa valid for three months during which time they should travel to the UK and apply for E-visas.  The new Rules do not cater for victims of domestic violence who last leave was not in the relevant categories, a partner or those who left the UK of their own volition.  These will continue relying on caseworker discretion hoping to be granted leave outside the Rules.  There is no right of appeal against refusals.