Reporting domestic abuse when immigration issues exist

It has recently been reported in national news that every police force in England and Wales has reported migrants who are domestic abuse victims to immigration enforcement. It was also reported that a fear of deportation can stop victims coming forward and that this has been outlined by the Domestic Abuse Commissioner for England and Wales, Nicole Jacobs, who has written to the Home Secretary requesting that this practice is ended.

In contrast, the issue of domestic abuse is one that is often dealt with in the family law courts and there are many cases where there is a link between domestic abuse and the immigration vulnerability of a person, typically referred to as ‘stranded spouse’ cases.

The situation

In family law, the term ‘stranded spouse’ is now covered under the terminology of transitional marriage abandonment, which is recognised as a form of domestic abuse. The Family Procedure Rules, namely Practice Direction 12J, Rule 3, states:

‘For the purpose of this Practice Direction “the 2021 Act” means the Domestic Abuse Act 2021; “abandonment” refers to the practice whereby a husband, in England and Wales, deliberately abandons or “strands” his foreign national wife abroad, usually without financial resources, in order to prevent her from asserting matrimonial and/or residence rights and/or rights in relation to childcare in England and Wales. It may involve children who are either abandoned with, or separated from, their mother’.

Rule 2B of Practice Direction 12J emphasises that such acts are a form of domestic abuse. Historically, abandonment was referred to as a ‘stranded spouse’. There can be a number of examples of what can constitute abandonment, but in the family law context, one often recited definition is found in ZM v AM [2014] EWHC 2210 (Fam). In this case, it was stated in paragraph 1 that:

“Where one party to a failing marriage has secure immigration status and the other does not, the opportunity arises for the former to exploit the latter’s weakness by taking advantage of immigration controls. This case is a bad, but by no means unique, example of what has come to be known as the stranded spouse. A very young wife was lawfully brought to the United Kingdom, where she was dependent upon her husband and his family, and where she gave birth to a child who has major disabilities. Her husband made little effort to secure for her the immigration status to which she was entitled and when the marriage got into difficulties, she was then sent out of the country with no right to re-enter. The result is that she and her child have been separated for the past three years, a situation that is a wholesale breach of their right to respect for their family life under Article 8 of the European Convention on Human Rights. The only way in which this breach can be remedied is by the mother regaining the ability to enter this country. The nature of the child’s condition means that while his mother remains abroad there is no opportunity for any meaningful relationship between them”.