STRANDED SPOUSES
“A SHELL OF AN EXISTENCE”
Teertha Gupta QC
of 4 Paper Buildings
For Dawson Cornwell
UK Immigration Rules and Policy
The probationary period
http://www.ukba.homeoffice.gov.uk/visas-immigration/partnersfamilies/citizens-settled/spouse-cp/settlement/
(Immigration Rules part 8 Para 297 onwards)
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Applying for settlement you can apply for settlement as a
husband, wife or civil partner if: you have completed a
period of 2 years in the UK, with a visa or permission to
remain here in this category; you are still the husband, wife
or civil partner of the person specified in your visa or
permission to remain; the marriage or civil partnership is
existing and genuine (not a 'marriage of convenience', for
example);
UK Immigration Rules and Policy
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you and your partner both intend to live
together permanently as husband and wife or
civil partners;you have adequate
accommodation where both of you and any
dependants can live without needing public
funds, and at least part of that accommodation
(for example, a bedroom) is for your and your
partner's sole use;both of you can support
yourselves and any dependants without needing
public funds;you do not have any unspent
convictions within the meaning of the
Rehabilitation of Offenders Act 1974; andyou
have enough knowledge of the English language
and life in the UK. (You do not need to meet this
last requirement if you are aged 65 or over.) You
can find more information about this
requirement on the Knowledge of language and
life page.
UK Immigration Rules and Policy
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Time spent outside the UK The Immigration Rules do not
say that you must have been in the UK for the entire 2
years of your visa or permission to remain.Your
application to settle here will be judged on its merits,
taking into account your reasons for travel, the length of
your absences, and whether you and your partner travelled
and lived together while you were outside the UK. If you
have spent a limited time abroad in connection with your
job, for example, this should not count against you.
However, time spent outside the UK does make a
difference to applications for British Citizenship (270 days
out of 3 years and no more than 90 in the last 12months).
R (ex Parte Quila) [2011] UKSC
45http://www.supremecourt.gov.uk/decidedcases/docs/UKSC_2011_0022_PressSummary.pdf
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Review of age decision: Following a Supreme
Court judgement immigration rules have been
laid in parliament to reinstate a minimum age of
18 for a spouse, civil partner, fiancé(e), proposed
civil partner, unmarried partner or same-sex
partner, and his/her sponsor to qualify for entry
clearance, leave to enter, leave to remain or
variation of leave on the basis of the applicant's
relationship. If you were refused a visa solely on
age grounds alone, between 27 November 2008
and October 2011 and you have not since made
a successful application, you could seek a review
of that decision.
UK Immigration Policy
If your husband or wife has more than one wife or husband,
only one will be allowed to join them in the UK.
 At first, you will be allowed to stay and work in the UK for two
years. Near the end of this time, if you are still married and
intend to continue living together, you can apply to stay
permanently in the UK.
 The UK Border Agency will deal with your application to stay
permanently in the UK. Before the end of your probationary
two years Leave to Enter (LTE) has expired you will need to
apply to the UK Border Agency for Indefinite Leave to Remain
(ILR) in the UK. When you do this you will be required to pay a
non-refundable fee and provide certain documents as specified
on the UK Border Agency website: Form SET (M) and guidance
notes. Before we can give you permission to stay in the UK
permanently, you will need to satisfy the knowledge of the
English language and life in the UK requirement.
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The probationary period
Bogus Bride Jailed Over Fake Marriage
Scam
 http://blogs.findlaw.com/solicitor/2010/01/
bogus-bride-jailed-over-fake-marriagescam.html
In recent years the UK Border Agency has
clamped down on sham marriages, with
suspected sham marriages falling from
over 3,500 in 2004 to under 400 in 2008.
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Marriage of convenience
http://news.bbc.co.uk/1/hi/uk/8446723.stm
If you are an illegal immigrant desperate to stay in the
UK, what do you do? Get married - and hope that
nobody checks up on you. The BBC has been
investigating how it is done and why the authorities are
finding it difficult to stop.
 If you want to investigate illegal immigration, you need someone
who is on the verge of being thrown out of the country.
 We turned to Jaspal, an Indian student who is in the UK entirely
legally. For our investigation, he posed as an illegal immigrant
who had arrived in this country in the back of a lorry.
 As a supposed illegal, he had a toehold in the West and was
looking for any way to stay on. We sent Jaspal, fitted out with a
secret camera, to search for a bride and a sham marriage.
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Marriage of inconvenience
Factual background
 [5] The fact-finding process concluded with a judgment
handed down on 10 October 2008 and it is, therefore,
necessary to do no more in this judgment than to record the
principal findings of fact that were made in order to set the
discussion of the procedural issues in the correct context.
 [6] TS was born on 8 January 2004. His mother, HS, was born
in India but came over to England in June 2003 following her
marriage to TS’s father, KS, in India in January of that year. KS
and his family had entered the UK some years before from their
home in Afghanistan. In the course of the proceedings the
mother made a number of serious allegations about the manner
in which she was treated by KS and his family, with whom the
young couple lived, once she arrived in England.
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Marriage of inconvenience
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The allegations, which included physical
violence, deprivation of food and
confinement to the family home, were
found by the court to be largely proved.
In addition the court found, as the mother
had alleged, that, following TS’s birth, the
paternal family kept her apart from her
baby for much of the time so that TS’s
primary carer became the paternal
grandmother.
A Marriage of inconvenience
Re T (Wardship: Impact of Police Intelligence)
[2009] EWHC 2440 (Fam)
[2010] 1 FLR 1048
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[7] In mid-April 2004 the mother travelled on her
own (and without TS) to India. The father followed her
there a short time later. The court has now found that
the father engineered the mother’s trip to India and
once she was there attempted to seise her return ticket
and passport in the hope that she would be ‘stranded’ in
India and separated from her son. In the event the
mother did not give up her travel documents and, in
due course, she returned to England whereupon she
removed TS from the care of his paternal grandparents.
Marriage of inconvenience
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[8] In due course, following the father’s return to
England, the mother and father set up home with
TS and enjoyed a period of a month or so of
relative domestic peace; or so the mother thought.
In fact, as the court has now found, the father was
already plotting to abduct TS and remove him to
India. On 10 July 2004 the father removed TS (aged
6months) from the mother’s care on the pretext of
taking him for a short visit to his parents. Instead
the father, his parents and TS boarded a crosschannel ferry and thereafter travelled to
Amsterdam before flying to India.
Marriage of inconvenience
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The paternal family and TS remained in
India for over 2 years before returning to
England in August 2006. During his time in
India the father issued divorce
proceedings in the Indian court and made
a number of attempts to have the mother
deported from England back to India in
order, as the court has now found, to
permit him to return to England with TS
and thereby continue to keep TS apart
from his mother in the long term.
Marriage of inconvenience
P v P [2006] EWHC 2410 (Fam)
 [2007] 2 FLR 439 Family Division Macur J
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The parents were both from Nepal; their first child was
born there. When the elder child was a few years old,
the father travelled to the UK on a student visa. He
established a home in the UK and was joined first by
the mother, and some years later by the elder child,
who had, in the meantime, been cared for in Nepal by
the paternal grandmother.The younger child was born
in the UK, but was taken to Nepal before his first
birthday, and left in the care of the paternal
grandmother for a number of years. During a visit by
the mother to the younger child in Nepal, the father
arranged for the younger child to be sent to the UK,
without the mother’s prior knowledge or consent.
Marriage of inconvenience
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The father had taken steps to
deprive the mother of her passport,
so that she would be unable to
follow the child. In the meantime,
the father and the two children were
granted indefinite leave to remain in
the UK. Before returning to the UK
the mother needed to obtain a
duplicate passport and the
necessary entry visa, but eventually
she managed to travel back to the
UK.
Other examples
Other examples (unreported):
Black J. (as was)- 2005 EWHC 1291 (Preston County
Court) Pakistan
Kirkwood J- 2006 EWHC 1267 (India)
Wood J- 17th May 2007(India-, entered 2004-2 babies
born in 2005 stranded 2006 Doncaster divorce
petition 2007)
Hedley J-2007 EWHC 2869 (Pakistan) passport
retrieved by Tipstaff but letter written to Home
Office)
Sikh, Muslim Hindu cases- not a religious matter of
a defined group.
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Aqila
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http://www.independent.co.uk/news/uk/homenews/abandoned-in-pakistan-by-her-britishhusband-2005613.html
20.6.10
Abandoned in Pakistan by her British
husband
A woman fights to be reunited with her son
after alleging that her in-laws drugged her
and dumped her back at her parents' home
By Nina Lakhani
Aqila
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Mrs Justice Hogg urged immigration
authorities to allow Aqila into the
UK before mid-July in order to
attend her son's welfare hearing.The
child is living with his father,
paternal grandparents and aunts in
the North of England.These
relatives bullied and abused Aqila
from the minute she arrived in
Britain in October 2008, the Family
Division of the High Court was told
last Friday.
The final word
Aqila to media:
 “Please let me have my child back and
then our lives can begin again."
Independent on Sunday
 “ It’s been three months and 15 days
since I saw my baby. I’m inconsolable. I
don’t want to bring ill to my in-laws. I’m
just fighting for my child. When we’re
reunited, I’ll feel alive again.” Grazia
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Aqila
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http://www.independent.co.uk/news/uk/home-news/judgepresses-for-abandoned-mothers-return-to-her-baby2011732.html
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The Home Office will come under pressure this week
to reunite a British baby boy with his mother after the
High Court ruled that she had been stranded
deliberately in Pakistan by her husband and in-laws who
wanted to keep her son. As The Independent on Sunday
reported last week, Aqila, 20, was drugged and forcibly
taken to Pakistan in March when her prematurely born
son was less than two months old. She was dumped
outside her parents' home with her suitcases but no
passport or visa by her British husband, who had tired
of her after two years of marriage.
Aquila
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“Three similar cases have come forward
to Aqila's solicitor, Anne-Marie
Hutchinson from Dawson Cornwall, since
last week's report in the IoS. Ms
Hutchinson's nine current cases involve
women from Iraq and the Congo, as well
as the Asian subcontinent.”
Prevention- The Indian perspective
Problems relating
to NRI Marriages
Dos and Don’ts
“Dos and Don’ts”
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Insist on a registered marriage along with the religious marriage to
be solemnized in India with adequate proof like photographs etc.
Insist on keeping in touch with the bride even after the marriage on
phone and e-mail and through local friends and relatives and get
alert if at any point there is any reluctance or difficulty in this.
Equip the woman with knowledge of the laws of the foreign
country and the rights she enjoys there, especially against any
form of abuse or neglect, including domestic violence and if she
can get residence permit and other protections as a victim of
domestic violence or abuse.
Inform people you trust if you face domestic violence in any form physical, emotional, financial, and sexual. Keep a log of all acts of
violence you face.
“Dos and Don’ts”
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Have a bank account in your exclusive name near your residence
that you can use in case of any emergency.
Keep a list of contact details of neighbors, friends, relatives,
husband’s employer, police, ambulance, and the Indian embassy
or high commission, if abroad.
Leave photocopies of all important documents including your
passport, visa, bank and property documents, marriage certificate
and other essential papers and phone numbers with parents or
other trustworthy people in India or abroad. In case they are
lost/forcibly taken away/mutilated/destroyed by or at the instance
of spouse or in-laws, the copies will come in handy; if possible,
keep a scanned soft copy with you and any person you trust so that
the same can be retrieved if necessary.
“Dos and Don’ts”
Do not remain quiet, if faced with
desertion or any other cruelty by
 husband and/or in-laws whether in India
or abroad. Approach the
 authorities.
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From: Report on “problems relating to NRI Marriages “
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by National Commission for Women and
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“Marriages to Overseas Indians”
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published by Ministry of Overseas Indian Affairs,
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Government of India New Delhi
The Courts of England and Wales Aqila’s case:
Re S (Wardship) Guidance in Cases of
Stranded Spouses [2011] 1 FLR 319
[2011] 1 FLR 319
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case management issues that need to be addresses
by the court at an early stage in proceedings, where
it is being alleged that a parent has been left
stranded abroad by the other parent so as to
ensure that the ‘stranded spouse’s’ and indeed the
other parties’ Article 6 and 8 ECHR rights are
upheld: to ensure that there is a fair trial of the
factual allegations and to reunite children with both
parents pending a judicial welfare based
determination on the child’s future residence and
contact (and potentially leave to remove).
Re S
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The best vehicle for these type of proceedings is
wardship proceedings and because of the
international element and the experience of the
Family Division Judges in dealing with these type of
cases and child abduction matters, they should be
determined in the High Court, until practice and
procedure has become well known in other courts.
Consider transferral of divorce proceedings which
throw up an illogical scenario of a mother walking
out on her young children and internationally
relocating. (a non-Hague version of R V R Stuart
White J transferring cases of suspected child
abduction up).
Re S
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First hearing: A Tipstaff Passport order should be
considered (amended where necessary) to include
that the tipstaff shall search for and seize the
mother’s passport where it is alleged that the
father has taken it.
There should be a Court request for disclosure
from the Home Office in form EX660 at the ex
parte stage to ascertain the spouse’s immigration
status so that s/he can immediately make
arrangements to obtain an expedited visa / transfer
an existing valid visa to a new passport. Additionally
letters may have been written by the sponsor and
an extant visa may still be in existence.
The Courts of England and Wales
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Recitals in directions orders which will assist
with obtaining a visa e.g. (a) mother must
attend hearing (b) court indicating that
mother needs to be here to determine
issues (c) court expressing view that
mother’s evidence best given in person in
this jurisdiction.
Consider semi-anonymised publicity in the
media to highlight the parent’s circumstances
with the Home Office, to assist in the
granting of a visa if all else fails.
The Courts of England and Wales
The court should consider inviting the UK based family to assist
with funding flight costs and if they refuse consider order for
costs after fact finding.
 Invite British High Commission and FCO to assist.
 Consider the need for a s.37 report on the child’s current
circumstances.
 Consider separate representation of the child at an early stage
via an invitation to CAFCASS High Court Team to decide
whether it wishes to represent the child, albeit not necessarily
attending at the fact finding process but assisting the court with
any interim care and control issues when they arise and to
conduct safeguarding checks.
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The Courts of England and Wales
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Consider disclosure of the papers/any interlocutor
e.g. fact finding judgments to the Home Office, the
local authority and local and foreign police.
Consider directions which may assist the mother
upon her return to the jurisdiction as mothers will
frequently have no support network in this country,
their only family being their husbands and in-laws.
Accommodation, consider applications for
maintenance.
Once mother/father has returned, restore matter
for urgent directions and consideration of interim
contact which should take place immediately
facilitated by CAFCASS if available and necessary.
The Courts of England and Wales
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The matter should be listed for a discrete
fact finding hearing (having considered and
distinguished the President’s recent
guidance in Split hearings- please see
attached) as a matter of urgency on issue
of the circumstances as to how the
parent and the child have been separated
internationally with disclosure of
judgment to CAFCASS
THE PRESIDENT’S GUIDANCE IN RELATION TO SPLIT HEARINGS
May 2010
Judges and magistrates should always remember that a
fact finding hearing is a working tool designed to assist
them to decide the case. Thus a fact finding hearing
should only be ordered if the court takes the view that
the case cannot properly be decided without such a
hearing.
 7.
Even when the court comes to the conclusion that
a fact finding hearing is necessary, it by no means
follows that such a hearing needs to be separate from
the substantive hearing. In nearly every case, the
court’s findings of fact inform its conclusions. In my
judgment it will be a rare case in which a separate fact
finding hearing is necessary.
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Just an English Phenomenon?
Wherever the probationary spousal visa
system exists and wherever international
arranged marriages exist there must be a
risk of spousal stranding.
 Be alive to it. ‘Gone home’ is illogical.
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Stranded Spouses
Teertha Gupta QC
©
TG@4PB.COM
In association with Dawson Cornwell
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