High Court Considers Domestic Violence Victims Abandoned Abroad

• Jurisdiction: European Union
• Law Firm: Richmond Chambers Immigration Barristers
• Subject Matter: Immigration, General Immigration
• Author: Mr Thomas Hill
• Published date: 03 January 2023

In the recent case of R (AM) v SSHD [2022] EWHC 2591 (Admin), the High Court addressed an underpublicized form of domestic abuse, known to campaigners as 'transnational marriage abandonment'.

The case involved a Pakistani woman resident in the UK, who had been left stranded in Pakistan and separated from her two-year-old child after being abandoned on what was supposedly a family holiday by her abusive husband. Handing down judgment, Mrs Justice Lieven held that the provisions in the Immigration Rules concerning indefinite leave to remain ("ILR") for victims of domestic violence are unlawful under the Human Rights Act insofar as they discriminate against victims outside the UK.

This blog post considers the background to the case, the court's reasoning, and the implications of the decision.

The DVILR Provisions and Transnational Marriage Abandonment

Appendix FM to the Immigration Rules allows the spouses and long-term partners of British nationals, settled persons, and various other kinds of UK residents to join or remain with their partner in the UK.

If a relationship breaks down, a person holding leave as a partner may find their leave cut short. Unfortunately, this can incentivize people to stay in relationships they might otherwise want to leave. Section DVILR ("Domestic Violence Indefinite Leave to Remain") of Appendix FM is designed to prevent this from happening in cases of domestic abuse. It provides - broadly - that if an applicant is in the UK; held leave as a partner under Appendix FM; and their relationship has broken down due to domestic abuse, then (subject to making a valid application and meeting suitability requirements), they are entitled to ILR. My colleague has written a two-part guide (see Part 1 and Part 2) to making an application on this basis.

The DVILR rules envisage a situation in which the victim of abuse is already in the UK. As a result, they do not account for cases of "transnational marriage abandonment" ("TMA"). This is where the abusive partner (in practice always the husband) compels or deceives his wife into leaving the UK, before returning without her. The victim's immigration status may prevent her return - for example, if her leave has expired, or if the abuser has it curtailed by reporting the breakdown of the relationship to the Home Office.

The Claimant's evidence surrounding this practice included testimony from Southall Black Sisters, who reported handling a significant number of such cases. Summarising, Lieven J explained, "The perpetrator's position as a British...