R AM v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lieven DBE |
| Judgment Date | 14 October 2022 |
| Neutral Citation | [2022] EWHC 2591 (Admin) |
| Docket Number | Case No: CO/3501/21 |
| Court | King's Bench Division (Administrative Court) |
[2022] EWHC 2591 (Admin)
Mrs Justice Lieven
Case No: CO/3501/21
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Rebecca Chapman (instructed by Islington Law Centre) for the Claimant
Mr James Fletcher (instructed by Government Legal Department) for the Defendant
Hearing dates: 12 July 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on 14 October 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives
This is an application for judicial review of one part of the Immigration Rules contained in Appendix FM, specifically the Domestic Violence Indefinite Leave to Remain (“DVILR”) section of the Rules.
The Claimant is a citizen of Pakistan. She has been a victim of domestic violence which culminated in what is described as transnational marriage abandonment (“ TMA”), leading to her being stranded in Pakistan and separated from her 2 year old British child for 8 months. It is the absence of provision in the DVILR for such cases which is the matter challenged in this case.
The Claimant was represented by Ms Rebecca Chapman and the Defendant was represented by Mr James Fletcher.
The Facts
The Claimant is a national of Pakistan born in 1991. In 2017 she married IM, a British citizen, and she arrived in the UK in December 2017 on a spousal visa valid until August 2020. In December 2018 she gave birth to a daughter, X.
The Claimant says she has been subject to severe financial, physical, emotional and sexual domestic abuse. On 3 December 2021 Mrs Justice Theis sitting in the Family Division of the High Court made findings of very serious domestic abuse against the Father. What is set out below is the Claimant's account of what happened to her. None of her evidence is disputed by the Defendant.
The violence inflicted by IM on his wife resulted in severe and long-lasting physical harm including the removal of one of her ovaries, and a diagnosis of achalasia type 2, which resulted in a weight loss of over 30 kilos.
In September 2020, having been hospitalised, the Claimant disclosed to her medical professionals, the police, social services, and the organisation Hestia the abuse she had been subjected to by her husband. Her case was heard at a Multi-Agency Risk Assessment Conference (“MARAC”) as it was regarded as a high risk case.
In December 2020, IM effectively forced the Claimant to travel to Pakistan, ostensibly on a holiday to resolve their marital difficulties. The Claimant initially refused and disclosed to social services her fears that she would be abandoned in Pakistan. However, IM threatened to harm the Claimant's family in Pakistan if she refused to travel, leaving her with no choice but to agree. IM reassured social services that the family would return to the UK by March 2021.
On 9 January 2021, the family travelled to Pakistan. IM went to stay with his family, while the Claimant and her daughter stayed with the Claimant's parents. Between 10 and 15 January 2021, the Claimant's husband picked X up daily for a period of 2 hours. On 15 January 2021 IM did not return X back to the Claimant, who then did not see her daughter until they were reunited in the UK on 26 September 2021.
The Claimant sought help from UK based organisations to return to the UK and be reunited with her daughter. She also received death threats from her brother-in-law, as a result of which she was forced to start moving between her parents' house and an aunt's house to avoid her husband's family knowing her exact whereabouts at any given time. On 15 February 2021, the Claimant was informed by the police that her husband had been detected at Heathrow Airport with X.
On 5 March 2021, the Claimant, relying on advice from a member of staff of the British Embassy in Pakistan and the Visa Application Centre in Karachi, applied for a replacement Biometric Residence Permit. On 10 March 2021, the application was refused on the basis that she did not have valid leave to return when she left the United Kingdom. The Claimant then instructed Islington Law Centre on 18 March 2021, which on 12 April 2021 submitted an urgent and detailed application for a fee waiver for the Claimant, enclosing evidence of her finances, the domestic abuse she was a victim of in the UK and her abandonment in Pakistan and separation from her daughter. They also informed the Defendant that the Claimant would need to be in the UK by 1 July 2021 to attend Family Court proceedings, and that the Secretary of State should facilitate and expedite her return to the UK.
The Defendant failed to respond or to grant a fee waiver. Consequently, the Claimant's solicitors applied for and were granted emergency funding by the Legal Aid Agency on 16 June 2021. An urgent application for judicial review of the delay in deciding the application for a fee waiver was lodged with the Upper Tribunal on 17 June 2021 and later the same day Upper Tribunal Judge Allen ordered that the Defendant reach a decision by 4pm on 24 June 2021. In a decision dated 22 June 2021, the Defendant granted the application for a fee waiver.
Thereafter, on 30 June 2021, the Claimant's solicitors made representations on her behalf in support of an application for Indefinite Leave to Enter on the basis of domestic abuse. No decision was received, but on 30 July 2021 the Claimant was issued with a visa for 6 months leave to enter outside the Rules, with no recourse to public funds.
The Claimant re-entered the UK on 20 August 2021. An interim Order was made by the Family Court on 2 August 2021 that X be returned to her mother's care. However, the fact that she had no recourse to public funds and no accommodation, precluded this from taking place until Sunday 26 September 2021 when Southall Black Sisters provided the Claimant and X with accommodation.
On 1 September 2021, the Claimant's solicitors sent the Defendant a pre-action protocol letter challenging the decision to only grant a limited visa for 6 months leave to enter with no recourse to public funds.
On 24 September the Family Court (Mrs Justice Theis) ordered that IM return X to the Claimant's care.
On 9 November the Defendant granted the Claimant 30 months further leave to remain. On 24 June 2022 the Defendant granted the Claimant Indefinite Leave to Remain (“ILR”).
In the light of the fact that the Claimant has now lawfully returned to the UK and has been granted ILR, the Defendant submits that the claim is academic and the Court should dismiss on that basis. I will return to that issue in my conclusions below.
The Grounds
The Claimant advances five Grounds:
a. That the DVILR provisions are unlawful because they are contrary to the underlying purpose of this part of the Immigration Rules;
b. That the DVILR unlawfully discriminate against victims of transnational marriage abandonment;
c. That the failure to grant Indefinite Leave to Enter is unlawful as being contrary to the Defendant's Leave Outside the Rules policy;
d. That the failure to grant Indefinite Leave to Enter is contrary to s.55 of the Borders, Citizenship and Immigration Act 2009;
e. That the failure to grant Indefinite Leave to Enter is contrary to Article 8 of the European Convention of Human Rights (“ECHR”).
The Relevant Law
The provisions relating to victims of domestic abuse who are present in the UK are set out in Section DVILR of Appendix FM of the Immigration Rules, which provides:
“Victim of domestic abuse
Section DVILR: Indefinite leave to remain (settlement) as a victim of domestic abuse
DVILR.1.1. The requirements to be met for indefinite leave to remain in the UK as a victim of domestic abuse are that—
(a) the applicant must be in the UK;
(b) the applicant must have made a valid application for indefinite leave to remain as a victim of domestic abuse;
(c) the applicant must not fall for refusal under any of the grounds in Section S-ILR: Suitability-indefinite leave to remain; and
(d) the applicant must meet all of the requirements of Section E-DVILR: Eligibility for indefinite leave to remain as a victim of domestic abuse.
Section E-DVILR: Eligibility for indefinite leave to remain as a victim of domestic abuse
E-DVILR.1.1. To meet the eligibility requirements for indefinite leave to remain as a victim of domestic abuse all of the requirements of paragraphs E-DVILR.1.2. and 1.3. must be met.
E-DVILR.1.2. The applicant's first grant of limited leave under this Appendix must have been as a partner (other than a fiancé(e) or proposed civil partner) of a British Citizen, a person present and settled in the UK, a person with refugee leave, or a person in the UK with limited leave under Appendix EU in accordance with paragraph GEN.1.3.(d), under paragraph D-ECP.1.1., D-LTRP.1.1., or D-LTRP.1.2. of this Appendix, or as a partner of a refugee granted under paragraph 352A, and any subsequent grant of limited leave must have been:
(a) granted as a partner (other than a fiancé(e) or proposed civil partner) of a British Citizen, a person present and settled in the UK, a person with refugee leave, or a person in the UK with limited leave under Appendix EU in accordance with paragraph GEN.1.3.(d), under paragraph D-ECP.1.1., D-LTRP.1.1. or D-LTRP.1.2. of this Appendix; or
(b) granted to enable access to public funds pending an application under DVILR and the preceding grant of leave was granted as a partner (other than a fiancé(e) or proposed civil partner) of a British Citizen, a person present and settled in the UK, a person with refugee leave, or a person in the UK with limited leave under Appendix EU in accordance with paragraph...
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