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Stranded Spouses and Immigration Control

Sulema Jahangir, solicitor with Dawson Cornwell, explains the plight of wives and mothers who are stranded in foreign countries, often separated from their children, and unable to return to England because of immigration restrictions.

Sulema Jahagir, solicitor, Dawson Cornwell

Sulema Jahagir, solicitor, Dawson Cornwell

The case of the stranded spouse is increasingly blurring the lines between family law and immigration policy.

Recent surveys reveal that the British public's stance has hardened towards immigration.  Immigration rules have become tighter. A possibly unintended consequence is that there are now many British families, often mothers and sometimes young British children, abandoned in foreign countries who are unable to return to England because of immigration control.

Where a British national wants to marry a foreigner who is not from the European Union, the British national will need to sponsor the entrant on a spouse visa. Current immigration rules allow a spouse to remain in the United Kingdom on such a visa for a period of two years before that person can apply to settle in the UK indefinitely. At the time when an application for settlement is made it must be proven that the marriage between the British national and the foreign spouse still exists. For some British husbands the tightening immigration restrictions provide an opportunity to end a marriage without recourse to the British courts. There are many instances in which such a husband will take his wife abroad after the spouse visa has expired (often returning to her family, ostensibly for a holiday) and abandon her there. The husband controls her immigration status so that she is unable to renew her spouse visa in time or to apply for indefinite leave to remain in the UK as a British resident.

Alternatively, within this jurisdiction a foreign national wife may become an over-stayer because the husband deliberately refuses to support a visa extension. As a consequence of their vulnerable immigration status, such wives may be forced to tolerate domestic violence, often extreme, and other abuse for fear of being deported from the United Kingdom and forcibly separated from their children. In one case, a wife after being subjected to violence over a number of years ultimately fled to the police who sent her to Yarl's Wood Immigration Removal Centre from where she was finally deported to Pakistan after spending some weeks in detention.1  Although immigration rules allow a spouse who is a victim of domestic violence to make an application for indefinite leave to remain in the UK if she is able to prove domestic violence, in the overwhelming majority of cases, victims who are supposed to benefit from this rule do not know about it and are not informed about it by the police or other relevant authorities. Fear of a reprisal from the husband and cultural taboos may also discourage a wife from reporting the matter to the police.

Consider the case of Nazia who is a foreign national but is the mother of a British child. Nazia married a British national and moved to England. A year later Nazia gave birth to a baby boy, Adam. Nazia's marital life deteriorated and her husband became violent to her. Just before Nazia's spouse visa was about to expire, her husband told her that they were going on a holiday to Pakistan. Once they arrived in Pakistan Nazia's husband left her at the doorstep of her parents' home and returned to England with Adam. Since then Nazia has been struggling to return to England and be reunited with her son. Nazia's application for a visa to return to England was refused. Not surprisingly her husband was not willing to sponsor her. In fact he wrote to the Home Office informing them that he had divorced Nazia in Pakistan and they should no longer entertain a visa application from her. The last time Nazia saw Adam was when he was one year old and she was still breast-feeding him. Since then she has had no contact with her son until she started proceedings in England some two years later.

Mehnaz was left in Pakistan while she was pregnant with her second child. Her elder daughter remained in England with her husband. The last time she saw her daughter, Aiza, was when she was two years old. Mehnaz's visa was rejected but she ultimately managed to return to England some years later. She learnt how Aiza missed her and was making imaginary pictures of "her mother". Another woman, Tasleem, has five children in England who are living without her. She had the youngest child with her when she was stranded in Pakistan but over time she was persuaded to send him to England because she was unable to support him. Yet another, Rubina, was stranded in Pakistan and is now residing in a homeless shelter for some years while her four children are in England. Many of these mothers are left in impecunious circumstances. Most of their valuable possessions are their dowry items including jewelry that they leave behind in England when they travel, usually, for a supposed family holiday only to realize they will never be able to return home.

Although a majority of cases of a stranded spouses relate to Pakistan, they are not restricted to that country. A similar pattern emerges in India, Afghanistan, Bangladesh and other parts of the world such as Kenya and Middle Eastern countries. What is common is that the stranded spouse requires entry clearance to re-enter the United Kingdom and is abandoned in a country which is not a signatory to the Hague Convention or another bilateral treaty with England which facilitates swift resolution of conventional child abduction cases.  It is difficult for many of these mothers even to find that they have a legal recourse through British courts. They do not have the resources or in many cases even the language skills to reach out to the proper authorities in the UK. It is right for British courts to assume jurisdiction over these children who were born in England and retain their habitual residence but for this to happen these mothers have to make contact with the appropriate authorities. In almost all cases stranded mothers apply for visas to return to England to be reunited with their children but their applications are rejected outright for failing to meet the immigration rules. Often stranded spouses write letters to the British High Commission, their local authorities and even the local police but apart from expressing sympathy no one is able to give them clear direction. With the passage of time it becomes even more cumbersome to obtain public funding to start proceedings in England. Where the spouse is stranded along with the children a long delay means that the habitual residence of the children becomes more tenuous in England.2

In such cases the proper legal recourse is for the affected child to become a ward of the English court and for the case to be handled in the Family Division of the High Court. In the case of Re S (A Child) (Guidance in cases of stranded spouses) [2010] EWHC 1669 (Fam) Mrs Justice Hogg provided some useful guidance for judges and practitioners in these types of cases. She was moved by the mother's and the child's plight:

"To separate a mother and child in this way is emotionally harmful to the child and remains so for so long as the child is deprived of the mother. It is something which is abhorrent and unfeeling towards a child and mother. It is selfish and cruel by those who do it."

Mrs Justice Hogg noted that the mother in this case was unable to obtain a visa to travel to England to meet her child and to take part in the English proceedings. In her judgment she made a plea to the immigration authorities:

"I make a further plea to the ministers concerned that there should be some consideration as to what arrangements can be put in place to assist mothers to return to this country where allegations similar to those made in this case and where proceedings are in being and hearings are listed."

Since the case of Re S immigration controls have become tighter. Dogmatic officials routinely refuse stranded mothers visas even where they have started wardship proceedings in England on behalf of their children and the English courts continue to make requests to immigration authorities. In another case, N v A (Abduction from Pakistan) [2012] EWHC 3954 (Fam), that came before Mrs. Justice Hogg in 2012 a mother was denied a visa where her three year old daughter was in England. She again issued a plea to the immigration authorities:

"I was deeply upset that notwithstanding the mother's applications, two applications, to come to this jurisdiction for this hearing, to be engaged fully in this hearing, those applications were rejected.  This is not the first time that this has happened.  Two years ago, I made a request to the immigration authorities in another not dissimilar case of a wife, or mother, who had been left behind in Pakistan and a child retained or brought here, and who wanted to recover her child.  This is the second time I am protesting that arrangements have not been made to enable a young woman who is making a claim in this court of wrongful removal or wrongful abandonment, wrongful deprivation, separation, of herself from her child, to come to this country for the purpose of litigation.  If such mother cannot come to this court they cannot engage fully." 

Mrs. Justice Hogg was concerned that in this case the mother's Article 6 right to a fair trial under the European Convention of Human Rights would be jeopardized if she was unable to attend in person a court hearing which would decide the future living arrangements of her child. In the same case the judge noted that a hearing by way of video link is not as effective for the mother and is much more costly for the taxpayer. This has been noted by other judges. In the case of Akhtar v Ayoub discussed below Mr Justice Holman decided that there is no point in having a hearing by way of video link from Pakistan since they often break down and the hearing "degenerates almost into a farce". Another right that could be in potential breach is the mother's and the child's Article 8 right to family life. However these rights are not absolute and the Secretary of State is able to exercise discretion when considering individual cases.

In the majority of cases involving stranded mothers it appears that the economic interests of the United Kingdom trump the right of these mothers to return to their children in England. Many of them are refused visas to return to the UK where the authorities believe that, on the evidence available, there is a good chance that the stranded mother will not return to her original country and will become dependent upon public funds if she does not have the funds to accommodate herself. Immigration officials are bound to consider the economic well-being of the UK in such cases.

The situation becomes even more difficult for stranded spouses who have not been separated from their children. For example, consider the case of Maria who was stranded in Pakistan with her 10 month old son who was a British national and habitually resident in Britain. Maria and her son are destitute. He has been suffering from various illnesses since they have been stranded in Pakistan but Maria cannot afford treatment for him. She started proceedings in England but her visa was refused.  The entry clearance officer believed that Maria would not return to her home country once she was allowed to visit England. Maria appealed this decision on the basis of her Article 6 and 8 rights under the European Convention of Human Rights but the Immigration Tribunal rejected her appeal. The judge believed that Maria could exercise her right to a fair hearing by way of video link and, unlike a majority of other cases, since Maria was not separated from her child, her Article 8 right was not engaged. 

Family courts are tasked with investigating the welfare of affected children and this remains their paramount concern. For immigration authorities, concerns are very different. Where a mother wants to return to England she must find a sponsor and show that she has ties to her country of nationality so that the Home Office can be sure that she will not remain in the UK beyond the duration of her 6-month visa. In almost all cases the Home Office is of the view that the presence of British children will mean that the mother will not return to her country of nationality. Her ties will be stronger in the country where her children are residing. To most people that is a logical and reasonable conclusion. Yet immigration policy is heading another way.  The concern of immigration officials is that once these mothers return to England they may make an application to remain in England on the basis of their British children and thereby dilute the economic welfare of the United Kingdom. In the case of stranded spouses the premise of this rule remains to be challenged by policymakers. Studies confirm that where children are separated from their mothers at a young age they have a higher risk of showing aggression, becoming truant from school and eventually becoming delinquents.

Family courts are increasingly wary of interfering in the immigration domain. In a more recent case of Akhtar v Ayoub [2013] EWHC 3840 (Fam) where a mother was stranded in Pakistan while her five British children were residing with their father in England, Mr. Justice Holman held that:

"This court may, as it now has done several times by the earlier orders that I have mentioned in this case, express requests and opinions to the Secretary of State. No doubt the Secretary of State must give appropriate regard to those requests and opinions, for if she simply ignored them she would not be taking into account all relevant matters. But it is extremely important that this court does not go, or appear to go, further and trespass into the powers, duties and discretions of the Secretary of State in immigration matters. So the position that now obtains is that, notwithstanding those earlier orders of this court and the opinions and requests contained in them, the Secretary of State appears currently to have reached a firm decision not to permit the mother to enter the United Kingdom."

He expressed sympathy for the mother's position but also his inability to do anything further:

"I have very considerable sympathy with the position of the mother, who is now separated from all her children. It cannot be a desirable situation for the children to be thus separated from their mother, whether or not on a daily basis they should be living with her or with their father. But I have to say that it seems to me that this wardship has now become futile and, indeed, potentially abusive of the proper boundaries between this court and the Secretary of State in immigration matters."

It remains to be seen whether immigration control will ever resolve the plight of stranded mothers and their children. The predicament of stranded mothers and their children can be encapsulated in the case of Ayesha Hussain. Ayesha last saw her children eight years ago when her husband's family abandoned her in Pakistan and abducted the children back to England. She has been unable to obtain a visa or funding to start proceedings for the return of her children and years have slipped by. She has now learnt that her children are living on their own; they have become truant from school and caught in nefarious activities. Is it not foreseeable that Ayesha's children will wonder why their mother was missing from their lives? When answering that question they will have to swallow a bitter pill that not only did their father forcibly separate them from their mother but also that their own government's policy denied their mother the right to return to them despite her persistent efforts.

The names of the women and children referred to in this article have been changed.

1 This was mentioned in the case of NN v ZZ & Ors [2013] EWHC 2261 (Fam).
2 For a discussion of delay, nationality and habitual residence see: In the Matter of A (Children) (AP) [2013] UKSC 60 where an appeal was made by the mother against the court's refusal to make a child a ward of court on the grounds that he had never been in the jurisdiction. The appeal was allowed.