In the recent decision of ZM v AM [2014] EWHC 2110 (Fam) the court recognised that immigration status, or lack thereof, can be used to wrongly control a spouse and directed that the judgment in that case be disclosed to the UK Border Agency.
Background
In ZM v AM the mother’s immigration status was dependent on the father: she initially had a spouse’s visa, and some time after that expired, she acquired another two years' leave to remain, this however expired in May 2011. The couple had a nine year old son with serious disabilities. Following the breakdown of the parties’ marriage the father had unilaterally obtained a residence order in respect of the parties’ child, somehow avoiding the mother participating in the proceedings (which was a matter of concern in itself). The mother was then said to have been tricked by her husband into returning to Pakistan, he had said to his wife that her mother was ill, and that the whole family had to travel. The mother travelled to Pakistan in July 2011, without having any immigration status; thus she was sent without any right to re-enter the United Kingdom. The mother was separated from her son and unable to attend court for the wardship proceedings in this jurisdiction (which she had commenced) due to her not being able to obtain entry clearance to come back to England; fortunately she was able to give evidence via a video link.
Judgment
The court found the mother to be an honest witness and accepted her account. The judge rejected the father’s evidence. The court made an order for:
While the mother remained in Pakistan there was to be voluntary indirect contact between the mother and her son, arranged by the school through the medium of Skype to enable re-introductions. The father was to be kept informed about this contact but his consent was not required.
Once the mother returns to England, the matter is to be restored for directions. At that point, consideration will be given to:
The judgment was ordered to be released to the Home Office, to assist the mother with an application to re-enter the UK and the applications she would need to make thereafter to regularise her status.
All too common?
In the family courts we often come across cases whereby one party uses their immigration status to control the other party with a less secure status. The nature of immigration law is that those who do not have status in this country often obtain their status via their relationship, be it personal or professional, with another individual or legal entity with the power to sponsor them. Cases arise where the party with secure immigration status may use their position to abuse, control or bully the party who is, in essence, wholly dependent on that status. Typically we come across such oppression in cases of forced marriage, but it is not only in this arena that it occurs, and often clear-cut immigration rules may result in difficulties in achieving what we may deem a just or moral outcome for the victims.
Residence test
We do not know how this mother’s case was funded. Legal aid for wardship proceedings for women in her position is still currently available. The government has proposed the introduction of a ’residence test‘ for legal aid to prevent individuals who cannot prove 12 months lawful residence in the UK from accessing civil legal aid. However the Public Law Project successfully applied for judicial review of the decision to enact the residence test by secondary legislation and the test was held to be unlawful by the High Court, in a judgment handed down on 15 July 2014. The Ministry of Justice has indicated it intends to appeal the decision, but for now at least there is no residence test.
Parties, including children, in a ZM v AM scenario, will be left unable to access civil legal aid if the residence test is enacted and thus without a remedy unless they are able to afford to pay solicitors privately, or act in person: a chilling thought.
Jenny Moore is a solicitor at Freemans.
Twitter: @LittleLawyerWC1
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