By Jessie Yang
In the most recent landmark ruling on 14 October 2022, Mrs. Justice Lieven of the High Court held that victims of transnational marriage abandonment are unlawfully discriminated against because they are outside of the United Kingdom. Such discrimination was held to be unlawful and disproportionately interferes with those victims’ rights under Article 8 of the European Convention on Human Rights (ECHR).
What are the old rules?
Before looking into the background of the case, it is important to understand the previous Domestic Violence Indefinite Leave to Remain immigration rules (DVLR).
Section DVILR of the Immigration Rules, Appendix FM allows for victims of domestic abuse who have moved to live in the UK as a Partner under Appendix FM, to apply for Indefinite Leave to Remain. However, the mandatory requirement is that the applicant must be present in the UK to make the application.
Further, there is no provision to apply for Indefinite Leave to enter on the same basis. Such rules have led many legal practitioners seeking alternative routes for their clients for re-entry and to remain in the UK ‘outside of the rules.’
Background of the case
Moving onto the case, the applicant, AM, is a Pakistani national. She married a British citizen and arrived in the United Kingdom on a spousal visa in December 2017. She subsequently gave birth to a daughter in the UK, who was also a British citizen.
During the time that AM was residing in the UK, she was subjected to severe physical, emotional, financial, and sexual abuse. In January 2021, AM was deceived by her husband to travel back to Pakistan, where she was abandoned, following which her husband abducted their daughter and unbeknown to her, brought her back to the UK.
AM was unable to return to the UK as her husband had confiscated her travel documents. After an unsuccessful application for a replacement Biometric Residence Permit, AM then instructed solicitors at Islington Law Center, who then submitted an urgent application for a fee waiver. As no response was received, an urgent application for judicial review was subsequently made and granted by the Secretary of State for the Home Department (SSHD) in respect of the delay in processing the fee waiver application.
AM’s solicitors then assisted AM to apply for Indefinite Leave to Remain to enter the UK as the victim of domestic violence. AM was issued with a visa for 6 months outside of the Rules. AM challenged the decision to grant her only six months. The initial decision was subsequently quashed, and AM obtained 30 months’ Leave to Remain instead.
AM was also given permission to apply for judicial review, Indefinite Leave to Remain (ILR). However, SSHD then contended that the judicial review was academic as AM had now been granted Indefinite Leave to Remain. AM pursued the claim nonetheless, as there was wider significance to these issues, and it would be in the public interest to continue the claim.
The applicant’s argument
The applicant claimed that the case had not become academic once she had been granted ILR. The applicant submitted two main grounds of claim:
1. The Domestic Violence Indefinite Leave to Remain (DVILR) provisions are unlawful because they are contrary to the underlying purpose of this part of the Immigration Rules.
2. The DVILR provisions unlawfully discriminate against victims of transnational marriage abandonment.
Findings of the High Court
The Court judge, Lieven J, dismissed Ground 1 but allowed Ground 2. In justifying its decision to dismiss Ground 1, the Court held that the fact that the SSHD has chosen to give protection to victims of domestic abuse who are in the UK does not mean that a failure to give such protection in all respects is deemed unlawful. Accordingly, the SSHD is not obliged to make provision for all victims such as AM and in all circumstances.
In justifying its decision to allow AM’s claim under Ground 2, the Court declared that the failure to make provision for victims of transnational marriage abandonment is unlawful because it discriminates against them on the basis of their location overseas. Such discrimination has no legitimate aim and disproportionately interferes with the victims’ rights under Art. 8 of the ECHR.
Our comments
Moving forward, this is a significant decision in relation to those who have been victims of transnational marriage abandonment. By uplifting the mandatory requirement that such victims (who are on a spouse visa) must be present in the UK to make an application for Indefinite Leave to Remain, they will now be permitted to make such an application, regardless of the location they are in. Further, such victims who are living abroad could now apply to enter the UK (despite the expiry of their visa) based on the new Domestic Violence immigration rules.
As a result of this ruling, the Home Office now has the positive obligation to introduce provisions to allow victims of transnational marriage abandonment to be treated like other victims of domestic violence who are present in the UK. AM v HHSD is therefore a ground-breaking and very welcome decision from the High Court.
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