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] EWHC 2591 (Admin).
What is transnational marriage abandonment?
Transnational marriage abandonment is the phenomenon by which a sponsor or their family member abandons their visa-holding partner abroad and takes steps to prevent their return to the UK. It is recognised as a form of domestic abuse in and of itself. In the overwhelming majority of cases, there has been a pattern of domestic abuse preceding the abandonment.
The steps that an abuser can take to prevent the victim’s return to the UK can take many forms, but include:
- taking the victim’s passport, biometric residence permit, and/or other immigration documents away from them
- contacting the Home Office to let them know that the relationship broke down, in an effort to have the Home Office cancel the victim’s visa
- leaving the UK when the victim’s visa has expired, so that the victim does not have a visa to return with
- delaying the victim’s return to the UK until their visa has expired or lapsed
- leaving the victim in destitution and without the financial means to organise a return to the UK, find assistance or pay for their journey back
In many cases, the victim will never have been in control of their immigration matters in the first place. Abusers can exploit that to deceive them about their ability to return to the UK.
Once abandoned, victims often face stigma and ostracisation in societies which blame them for the abandonment.
Requirements to be granted a visa to return to the UK
The rules for victims of transnational marriage abandonment to be granted entry clearance to the UK can be found in Appendix Victim of Domestic Abuse. They are very similar to the rules for victims of domestic abuse who are in the UK. However, the guidance confirms that the standard of proof that victims of transnational marriage abandonment must meet is the ‘reasonable degree of likelihood’. Victims of domestic abuse in the UK must meet the higher ‘balance of probabilities’ standard.
The rules for victims of domestic abuse are relatively short and seemingly straightforward. However, getting the right evidence can be trickier (we turn to that later).
Suitability
An applicant must not fall foul of the grounds for refusal which are found at Part Suitability of the Immigration Rules. They broadly relate to an applicant’s immigration and criminal history. There are some mandatory and some discretionary grounds for refusal.
There is only one mandatory ground for refusal which does not apply to victims of transnational marriage abandonment. This is found at paragraph SUI 11.4(a) and it relates to overstayers. Generally speaking, individuals who have previously overstayed their permission to be in the UK can be refused future immigration applications. They are subject to re-entry bans, which can last between one and ten years depending on the circumstances.
The guidance confirms that this does not apply to victims of domestic abuse in recognition of the fact that passport and immigration documents may be controlled by the abuser.
Similarly, when deciding whether to refuse an application on a discretionary ground, caseworkers are instructed to reflect on whether there is a link to the abuse. For example, if an applicant has NHS debt, caseworkers must consider whether it arose as a result of the abuse.
Immigration status
Regardless of whether they are inside or outside the UK, not all migrants who are victims of domestic abuse can apply for indefinite leave under the rules. This depends on their last category of leave.
Simplifying slightly, their last leave must have been on the basis of their relationship to someone with a qualifying status. Their partner must either be a British citizen, have indefinite leave in the UK or be an EEA national who has leave under the EU Settlement Scheme. It also covers refugees, and, in some cases, members of HM Armed Forces.
Those who had leave on the basis of a relationship to someone who is not settled, an EEA national or a refugee won’t qualify. This includes, for example, those in a relationship with a sponsored worker or a student. Again, this is a slight simplification, and it is important to review the rules in detail to make sure this requirement is met.
Those who were last granted leave under the migrant victims of domestic abuse concession (previously the destitute domestic violence concession) can also apply. Although this is less likely to apply to a victim of transnational marriage abandonment. This is because leave under the concession is granted to allow those whose relationship has broken down as a result of domestic abuse to access benefits. Most people granted leave under the concession will either have left the abusive household already or will leave it shortly after the grant. This means that, in most cases, they should be ‘safe’ from the abuser.
Importantly, applicants do not need to have valid leave at the time of their application. In fact, many victims of transnational marriage abandonment will not have leave, as their partner will often have made sure it expired or got cancelled. What is important is that the last leave they had was in an applicable category.
Breakdown of relationship due to domestic abuse
The applicant’s relationship with their partner must have broken down as a result of domestic abuse. The abuser does not necessarily need to be the partner; it could be another family member, as long as it is the abuse that led to the breakdown of the relationship. It is indeed not uncommon for in-laws to be complicit in a victim’s abandonment abroad (see the example of Asmara above).
The Home Office guidance also contains a definition of domestic abuse and importantly confirms that transnational marriage abandonment is in and of itself a form of domestic abuse. This means that where it is the abandonment which marks the end of a relationship, this requirement is automatically met.
Abandonment outside the UK
Come across victims of domestic abuse who were abandoned in the UK. They were unaware of their rights and ability to apply for indefinite leave to remain, felt they had no choice but to return to their home country. On a strict reading of the rules, this category of victims is excluded, because they are outside of the UK but were abandoned while in the UK. They may, however, be able to apply and ask to be granted leave outside of the rules on a discretionary basis.
Tuberculosis test
Applicants who have been abandoned in a country on this list, and who have been there for six months or more, will need to take a TB test. This is unless the decision maker agrees to waive the requirement on the basis that ‘the applicant is unable to obtain a certificate, and it is reasonable to waive the requirement on the specific facts of the case’.
In practice, relevant applicants should do everything in their power to take a tuberculosis test and, only if that proves impossible, should they ask for the requirement to be waived, setting out in detail why they were unable to take one.
Practicalities of the application: form, fees and biometrics
Applications are submitted online, completing the form return to the UK.
One of the questions that the form will ask applicants is whether they are ‘destitute and unable to pay the fee’ for the application. The fee in question is an extortionate £3,226, meaning many applicants will indeed not be able to pay for it.
Unlike other fee waiver applications, the test is destitution rather than affordability. However, in my experience, applicants who can show that they simply do not have the means to pay the fee are granted a fee waiver. The caseworker will get on with making a decision on the actual visa application.
If the caseworker is not satisfied that the applicant is eligible for a fee waiver, they should make additional enquiries. If, even after further evidence has been received, the caseworker still does not think the applicant is eligible, they should give the applicant ten working days to pay the fee. If the fee is not paid within those ten working days, then the application is deemed invalid.
Once applicants have submitted their form, whether or not they have paid the fee, they must usually go and provide biometrics (fingerprints and a photograph) at a visa application centre.
The guidance confirms that the Home Office can excuse applicants from this requirement, relying on their separate biometric reuse guidance and the unable to travel to a visa application centre to enrol biometrics guidance. In my experience, though, the guidance is interpreted extremely restrictively by the Home Office, who very rarely will allow an applicant not to enrol their biometrics. Again, applicants should do everything in their power to attend a visa application centre if at all possible.
Evidence
Evidence of identity
The rules ask that applicants submit evidence of their identity. This is a validity requirement, meaning an application could be rejected as invalid if it is not produced. Indeed, the rules are written in a way that is confusing as it suggests that an applicant must provide a passport or other document establishing their identity and nationality. However, the rules also go on to say that an application which does not meet all the validity requirements may be rejected as invalid, introducing a discretionary element.
The fact that caseworkers have discretion to waive this requirement is also confirmed in the guidance, which states that discretion can be exercised if paragraph 34(5)(c) of the rules is met. This paragraph allows an applicant not to submit proof of identity in different circumstances, including when they have a good reason beyond their control why they cannot provide proof of their identity.
The guidance also reminds caseworkers that applicants under this route will have previously been granted a form of permission from the Home Office as a partner, meaning the Home Office should have a record of their identity. It goes on to instruct caseworkers that ‘wherever an applicant is unable to provide proof of identity, you can further consult relevant Home Office records to make a decision on an application’.
In practice, a lot of victims of transnational marriage abandonment may not have access to their passport or proof of status because the abusers will often have taken them away. However, wherever possible, they should be advised to try obtaining a new passport. This is to meet this requirement in a straightforward manner, if possible, but also because it will make practicalities easier. These include attending a visa application centre to enrol their biometric information and being issued a visa vignette on their passport.
If obtaining a new passport is impossible, this should be explained. In those cases, applicants should be asked if they have any other evidence, such as a national identity card or a birth certificate, which they can submit as evidence of their identity. Again, if that is also not possible, this should be explained in detail in the application.
Evidence of domestic abuse, including abandonment
There is no mandatory evidence to be submitted to prove the domestic abuse or abandonment. A caseworker must, however, accept that the relationship broke down as a result of domestic abuse, and some evidence must be submitted for that to happen. A list of the type of evidence that can be submitted is set out in the guidance.
The standard of proof to be met for victims of transnational marriage abandonment is relatively low, being the ‘reasonable degree of likelihood’. As explained in the guidance, caseworkers ‘do not need to be ‘certain,’ ‘convinced,’ or even ‘satisfied’ of the truth of the account as that sets too high a standard of proof. It is enough that it can be ‘accepted.’
In principle, as set out above, if the abandonment marked the end of a relationship, then evidence of the abandonment would be sufficient. If, however, there is evidence of further domestic abuse available, it is a good idea to submit that too. This helps bolster the application.
Less commonly, applicants may also have started, or attempted to start, criminal law proceedings, or at least contacted the police in the UK about the abandonment.
It is helpful to obtain evidence of any proceedings, and to work closely with any family or criminal lawyers involved. With family law proceedings, there may be helpful court orders or documents, including court orders asking for the applicant’s return to the UK to be facilitated so that they may participate in the proceedings. This would always be very helpful to submit.
Sometimes, family law courts will also have held fact finding hearings and may well have made a finding that the applicant was a victim of transnational marriage abandonment. This would obviously be incredibly helpful to submit.
Before submitting any family court orders, though, it is important to make sure you have permission to do so. For example, you may want to check with the family lawyer whether you have that permission and ask them to request the court that any order specifically provides for disclosure.
If the police have been involved, it is helpful to get records of that. The first and easier step – to get confirmation, or at least to know how best to obtain those records – is to contact the specific team that dealt with the case.
Evidence that supports the assertion that the applicant was abandoned or is abroad against their will
It is common for clients to have taken steps that strongly indicate they were abroad against their will. They may have sent messages to their abuser asking their whereabouts or questioning when they will be able to return to the UK. They may have contacted charities, lawyers or other professionals asking for assistance to return, or even the British embassy or consulate, or the Home Office. They might have applied for a new passport even though their previous one would still have been valid. Any evidence like this is helpful to submit.
In addition, there may be evidence that the applicant thought they would go back to the UK shortly after the travel. For example, there may be a return ticket, correspondence with children’s school about how long the children would be out or correspondence with friends or family members about the length of the trip. Equally, the applicant may not have any of that evidence, because they may have been isolated or not made part of documents such as tickets. However, it is worth asking the applicant and submitting it if available.
Lastly, the fact that an applicant may be living in dire circumstances would also strongly indicate that they are abroad against their will. Applicants who, for example, are living in a refuge or other temporary accommodation may want to submit evidence of that.
Evidence of separation from children, if relevant
An applicant who was a primary carer and then separated from their children strongly indicates they were abandoned against their will. Any evidence of the separation would be helpful, such as evidence of telephone contact. As mentioned above, applicants in those circumstances should also be advised to obtain family law advice, as they may be able to initiate proceedings that would facilitate their return to the UK.
Evidence of previous abuse
If the abandonment marked the end of a relationship, then evidence of the abandonment would be sufficient. However, in most cases, the abandonment follows a previous pattern of abuse. Any evidence of that abuse, if available, would always be helpful and further support the application. This can include evidence of police or court involvement, evidence from medical professionals or evidence from refuges and domestic abuse organisations.
The more supporting evidence is submitted at the start, the more likely it is that an application will be granted without back and forth. With that said, caseworkers are instructed to contact the applicants to ask for further evidence when not enough has been submitted.
Letters by organisations assisting victims of domestic abuse
If the applicant has been in touch with organisations, especially those specialised in assisting victims of domestic abuse, before or after their abandonment, it would be helpful to get a detailed letter from them. This should set out what the organisation does, how and when they came in contact with the applicant. Ideally, it would explain that they have assessed the applicant to have been a victim of domestic abuse or transnational marriage abandonment, and on what basis they have come to that conclusion.
Evidence for the fee waiver
Applicants who are also applying for a fee waiver must prove that they are unable to pay the Home Office fee. The evidence set out in the guidance is similar to the one for other fee waiver applications, including evidence of income and outgoings, evidence of savings and assets, and evidence of accommodation. However, the guidance contains some helpful points that relate specifically to victims of domestic abuse and transnational marriage abandonment, including:
- The fact that victims of domestic abuse may not be able to submit as much evidence as others for fee waiver applications, including if they were not in control of their finances or, for victims of transnational marriage abandonment, if they cannot access their accounts from abroad.
- The fact that victims of transnational marriage abandonment may not feel safe to ask the people they are living with to provide evidence of their finances. For example, this could be because they may not be able to disclose their intention of applying for a visa to return to the UK.
As with other fee waiver applications, it is important to provide whatever evidence is available of the applicant’s financial circumstances, but also to explain anything that is ‘unusual’ or missing. For example, if an applicant believes they have a bank account in the UK but is unable to access it from abroad, they should explain why that is the case.
Helpfully, the guidance also confirms that the assessment should take into account the fact that the applicant will need to meet the costs of returning to the UK. Therefore, if the applicant has some savings but those will only be sufficient to cover the costs of returning to the UK, that should be set out. They should argue that the money should not be used to pay the Home Office fees.
Grants and refusals
Successful applicants will be granted indefinite leave to enter the UK. In practice, they are sent an email confirming the decision and instructed to create a UKVI account if they don’t yet have one. They will then have access to an e-visa confirming their status in the UK.
Applicants who do not meet the rules may still be granted indefinite leave outside the rules where there are circumstances justifying the exercise of discretion in their favour. The guidance provides examples of when this may happen, for example applicants whose last grant of leave was not as a partner for reasons related to the abuse. Their examples are not, however, exhaustive, and applicants can argue that they should be granted outside of the rules for different reasons.
Those who are refused altogether have a right of administrative review. This is not a great remedy, as it is limited to where there has been a caseworker error (rather than, for example, a disagreement over the facts). It does not give applicants the opportunity to give oral evidence, and it is generally difficult to submit new evidence.
Children
Dependent children can apply alongside or after the victim of transnational marriage abandonment. Even if they apply at the same time, they will need to submit their separate application form. Children must meet the relationship, care, age and independent life requirements of the separate Appendix Children of the Rules.
The care requirement usually involves confirmation of ‘suitable arrangements for the child’s care and accommodation in the UK’. However, the guidance confirms that not having clear confirmation or evidence of those will not be a ground for refusal. In particular, the guidance on domestic abuse states ‘victims of transnational marriage abandonment can return to the UK and avail themselves of accommodation and support that is available to them and their children as victims of domestic abuse’. It also refers to the Appendix Children guidance, which, in turn, states:
For applications where the parent is applying from overseas as a Victim of Domestic Abuse, the arrangements for where the parent and child or children will be staying in the UK may not be easily evidenced. If the parent plans to stay with a relative or friend, or to be accommodated with the help of a charity, or in other credible accommodation, you should not refuse the application under the Care requirement unless you have concerns about risk to the child’s well-being, beyond not having a firm plan.
Access to public funds
As mentioned above, successful applicants are granted indefinite leave to enter. Having indefinite leave means that you have permission to claim benefits. However, there are some additional tests to meet to be granted some benefits, which are applicable to all regardless of immigration status.
Ongoing issues with the rules
For years, victims of transnational marriage abandonment have had to submit applications outside of the rules, with mixed results. Many will now finally be able to return to the UK.
They are not, however, without their issues. Some of these issues are particular to them, and some affect all victims of domestic abuse.
The rules still do not cater for some victims of domestic abuse. This includes victims whose last leave was not in a relevant category, victims who left the UK of their own volition (although in most cases they did so as a direct result of the abuse they were victims of), and children who wish to apply independently of their parent. These individuals continue to rely on caseworkers’ discretion, hoping to be granted leave outside of the rules.
