Working to Support Stranded Spouses: Sulema Jahangir
by Sulema Jahangir on 8 May 2017
B.A. Law 2000-2003
Working in international family law, I have been privileged to help many stranded mothers to re-unite with their children. It is not just tremendously rewarding work but it has opened up a new vista for me, where I regularly engage with the judiciary, vulnerable clients, social workers, schools, immigration officers and a score of women’s aid and children organisations that knit our society together. I have a mixed case-load but many of the cases where I believe I have made a real difference are legally aided or even pro bono. To me legal aid does not only mean access to justice for the vulnerable but it also ensures that the law caters to new challenges and engages the conscience of both the judiciary and practitioners. All of my reported cases have sprung form legal aid or pro bono work. It is therefore unfortunate that legal aid has been cut so drastically in England over recent years.
In 2003 after graduating in law I moved to London and worked at magic circle law firm, Freshfields Bruckhaus Deringer, as a trainee and then an associate. It was an intensely busy period of my life and I wanted a change. In 2009 I moved to Pakistan for 2 years where I mainly worked on pro bono family and criminal cases for underprivileged women and children. The work was tough and emotionally charged but the injustice convinced me that this is an area I felt most connected to in the law. In 2012 I returned to England and started working at the family law firm Dawson Cornwel, in Central London. One area of law where my contribution has been most valuable are cases of stranded spouses, relocation of children and honour based violence.
I believe that the case of stranded spouses is most ignored by policy makers often on the pretext of immigration policy. Clearly, the recent referendum on Brexit shows that immigration is one of the most important issues facing the British public and immigration rules have become tighter. A possibly unintended consequence is that there are now many British families, often mothers and 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 his spouse for a visa. Current immigration rules allow a spouse to remain in the United Kingdom on such a visa for a period of two years before s/he 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, tightening immigration restrictions provide an opportunity to exploit their foreign national wives.
The exploitation takes many forms, usually encompassing violence, domestic servitude and abandonment. 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. According to her she jumped from the frying pan into the fire. 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 but in the majority of cases, victims who are supposed to benefit from this rule do not know about it or are too afraid to seek help.
Consider the case of Nazia who is a foreign national but is the mother of a British child. 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. The last time Nazia saw Adam was when he was one year old and she was still breast-feeding him.
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 drawing imaginary pictures of "her mother" in school. Another woman, Tasleem, has five children in England who are living without her. 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. There are hundreds of similar stories that largely go unreported. 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 stranded spouses relate to Pakistan, 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. 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) 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 and requested immigration authorities to assist the mother and child to return to England but such requests are usually unheeded and almost invariably their visas are rejected. In fact, since the case of Re: S immigration controls have become tighter. Visas are routinely denied despite requests for assistance set out in High Court orders.
Family courts are tasked with investigating the welfare of affected children and this remains their paramount concern. The court also notes that both the mother’s and child’s Article 6 and 8 rights under the ECHR are engaged. 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 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. The concern is that the mothers 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. It is high time that the premise of this rule should be challenged. 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, adding to the cost of the State.
Family courts are increasingly wary of interfering in the immigration domain. In the case of Akhtar v Ayoub where a mother was stranded in Pakistan while her five British children were residing with their father in England, Mr. Justice Holman expressed sympathy for the mother's position but also his inability to do anything further. He had already sent several requests to the immigration authorities to assist the mother to return but she was unable to get a visa.
It remains to be seen whether immigration control will ever resolve the plight of stranded mothers and their children. The primary motivation for curbing immigration remains the economic welfare of the United Kingdom, but where this is separating young children from their mothers, policy makers must be made to acknowledge that such decision is not only counter-productive but also cruel.
The names of the women and children referred to in this article have been changed.