Also known as "transnational marriage abandonment", stranded spouse cases are those where an individual deliberately abandons or “strands” their foreign national spouse abroad, whilst simultaneously removing their spouse's travel documents to prevent them returning to their matrimonial country of residence. The stranded spouse is left without the ability to return to the UK or, in many instances, to be reunited with their children.
Transnational marriage abandonment cases are complex due to the combined family law and immigration implications involved. Under current immigration rules in the UK, for a non-British spouse to be brought to the UK it must be under a spouse of British citizen visa. They must then reside in the UK for the next two years before they can apply to remain here indefinitely.
In a "typical" stranded spouse scenario, the couple may travel abroad together with their children, under the guise of a family holiday, or to visit relatives. The British citizen will then return to UK with the children, abandoning their spouse abroad and removing their travel documents to prevent them following their family back home to the UK. After two years of constrained international travel due to the COVID-19 pandemic, the current easing of international travel restrictions now means there is a real risk of the number of these cases rising, as the number of these so called "holidays" increase.
Family law implications
The case of the stranded spouse is not a new phenomenon for the Family Court in England and Wales. Recognised as a form of domestic abuse within family proceedings, the aim of such practices is often to prevent the stranded spouse from asserting matrimonial and/or residence rights and/or rights in relation to their children in England and Wales. A stranded spouse could be left with little to no financial support, or the language or technical skills to engage with authorities in the UK.
Cases can be particularly distressing and complex where they involve children. The British spouse may initiate proceedings in England for divorce, financial and child proceedings against the stranded spouse– even if the stranded spouse cannot travel to England. They may assert that the spouse left overseas has abandoned the marriage and their children.
What can be done?
Where a spouse has been stranded overseas and the children of the couple have returned to the UK with the British citizen, an application for wardship can be made to the High Court. A child will become a ward as soon as the application is made, meaning the Court will have ultimate legal guardianship over the children. Any person "with a genuine interest in relation to the child" can apply for wardship, and once an order is made by the court confirming the wardship, it will only expire if the child reaches 18 or the court discharges the wardship.
Guidance from the Family Court recommends that at an early stage in such proceedings, the Court should consider whether there should be an urgent fact-finding hearing to investigate and ascertain the circumstances in which the parent came to be stranded abroad.
Immigration implications
Immigration law lags behind the family jurisdiction in its protection of stranded spouses.
To be eligible for the spouse of British citizen visa, among other criteria an applicant must prove that their relationship with the British citizen is "genuine and subsisting". If granted, the visa is for a period of two years and nine months and needs to be renewed before that period comes to an end order to remain in the UK.
When a spouse is abandoned abroad, they are often left with no passport, visa, or any other means to re-enter the UK. Furthermore, once divorce proceedings are issued, their spousal visa is at risk of being revoked if the Home Office is notified by the British national or any other third party that the marriage is no longer subsisting.
In such cases, if the spouse is able to obtain a new passport, they may attempt to apply for a new visa in order to re-enter the UK. The problem for such individuals is that there may be no suitable straightforward UK visa option for them if the spousal visa route is no longer available. The options for this vary depending on the spouse's immigration status, however in many cases there is no straightforward application that can be made.
The immigration system has created a loophole which allows this domestic abuse to operate where the spouse is stranded abroad. Whilst the Immigration Rules recognise that spouses of British citizens or settled persons who are victims of domestic abuse should be allowed to apply for indefinite leave to remain, this is only possible if the applicant is present in the UK at the time of submitting their application. This lack of availability outside of the UK of this immigration safeguard prejudices stranded spouses who are unable to re-enter the UK due to their missing documentation or invalid spouse visas.
The harm caused by delay
Delay in these cases being heard is not in the welfare interests of the children involved, nor the spouse who is separated from their children for long periods of time. This issue was raised by Mrs Justice Hogg in the case of Re S (A Child) (Guidance in cases of stranded spouses) [2010] EWHC 1669 (Fam), where she stated "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."
The significant delays in the current Court system have significant implications for cases of stranded spouses. Whilst the Family Court is well versed in cases of transnational marriage abandonment, the complex nature of these cases is at odds with a court system overrun with backlogs and delays. Worsened by the Covid-19 pandemic, the HM Courts & Tribunal Service have reported it may take three years to return to pre-pandemic levels.
From an immigration perspective, the longer the abandoned spouse has to wait for a replacement visa, the more likely the Home Office will be notified that they no longer meet the requirements of a spousal visa and thus should not be issued the means to return to the UK.
A way forward?
Stranded spouse cases are a particularly devastating and pernicious form of domestic abuse – one that lacks a straightforward path to protection and remedies. Calls for greater awareness from the legal profession have been made in the hope of bringing about a more nuanced and effective strategy to deal with them.
With a new Prime Minister due in the next few months – and both candidates speaking about the need for protection of women and young people from abuse – there is the chance for a fresh new focus if the calls for change are answered.
If you would like more information or support on these issues, please speak to our Family or Immigration teams who have expertise in these multifaceted areas of law as well as connections to therapists and other experts.