R (on the application of SWP) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Singh,Lord Justice Baker,Lady Justice Elisabeth Laing |
| Judgment Date | 25 April 2023 |
| Neutral Citation | [2023] EWCA Civ 439 |
| Docket Number | Case No: CA-2022-001672 |
| Court | Court of Appeal (Civil Division) |
[2023] EWCA Civ 439
Lord Justice Singh
Lord Justice Baker
and
Lady Justice Elisabeth Laing
Case No: CA-2022-001672
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE KERR
Royal Courts of Justice
Strand, London, WC2A 2LL
Eric Fripp and Sandra Akinbolu (instructed by Duncan Lewis Solicitors) for the Appellant
Jack Anderson (instructed by the Treasury Solicitor) for the Respondent
Hearing date: 30 March 2023
Approved Judgment
This judgment was handed down remotely at 10 a.m. on Tuesday, 25 th April 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
The Appellant, SWP, appeals against the decision of Kerr J (“the Judge”) dated 2 August 2022, refusing her claim for judicial review of the decision of the Respondent (the Secretary of State for the Home Department) dated 6 August 2021. By that decision the Respondent refused the Appellant's application for temporary leave outside the Immigration Rules, pursuant to a policy known as the Destitute Domestic Violence Concession (“DDVC”).
In around 1999, the Secretary of State introduced by concession a provision for a victim of domestic violence with limited leave to remain (“LLR”) in the United Kingdom (“UK”) as the spouse or partner of a British citizen or a person present and settled in the UK to be granted indefinite leave to remain (“ILR”). I will refer to this as “DVILR”. In 2002, the DVILR concession was formalised in para. 289A of the Immigration Rules. A new DVILR scheme was introduced in 2012, in Appendix FM to the Immigration Rules.
The DDVC was introduced in 2012. In essence it gives dependants of some visa holders three months to apply for leave to remain in the UK, in the meantime enabling access to certain public funds and support as well as the right to work. The DDVC therefore provided a “bridge” to DVILR.
Since DVILR was introduced, two exceptions have been introduced to the principle that the applicant's spouse must be a British citizen or present and settled in the UK. First, an exception was introduced in December 2018 for the partner of a person with LLR as a refugee. This was done so as to comply with the judgment of the Inner House of the Court of Session in A v Secretary of State for the Home Department [2016] CSIH 38; [2016] SC 776. Secondly, an exception for the partner of a European Economic Area (“EEA”) national granted pre-settled status under the European Union Settlement Scheme (“EUSS”) was introduced in December 2020 in response to the fact that the UK was leaving the European Union.
The key issue in this case is whether the Judge erred in concluding that the Appellant's exclusion from the DDVC is objectively justified, under Article 14 of the European Convention on Human Rights (“ECHR”), read with Article 8, both of which are Convention rights within the meaning of the Human Rights Act 1998 (“ HRA”).
Factual Background
The Appellant is an Indian citizen.
In India she was a qualified teacher employed in an international school, with BA and B.Ed degrees and a diploma in education. In India the Appellant, her husband, and their son lived with her husband's parents.
Her husband, WP, came to the UK from India with a “Tier 2” migrant visa around mid-2016. By 2020 he had leave to remain as a Tier 2 Migrant under the Points-based System.
SWP and their nine year old son, Z, joined WP in the UK in 2017 with leave to enter as his dependants.
On 1 May 2018 SWP's application for leave to remain as the spouse of a Tier 2 migrant worker was extended to expire on 29 July 2020.
On 21 July 2020, SWP applied for a further extension of her leave to remain. This was granted on 6 October 2020 up to 12 August 2021.
In the UK the Appellant took the steps necessary for her to gain professional status as a qualified teacher in England and Wales, by passing a GCSE qualification in English and successfully completing a Postgraduate Certificate in Education, anticipating eventual settlement in the UK and therefore laying the groundwork for a teaching career in England and Wales.
To gain experience and fund her studies, the Appellant worked full-time as a teaching assistant and part-time as a customer assistant at McDonald's. Her son settled in school in the UK.
I must now turn to the domestic abuse which the Appellant has suffered. Like the Judge, I must stress that these allegations have not been the subject of criminal proceedings, so this Court must proceed on the assumption that they are true but must not be taken to have found that they have been proved as a matter of fact. This is especially important as the Appellant's husband is not a party to these proceedings.
The Appellant's husband was a violent and abusive partner, both in India, where his parents supported and participated in abuse of the Appellant, and in the UK.
The Appellant had felt unable to seek assistance from the authorities in India. In the UK, her husband specifically threatened that if she left him, she would be deported from the UK because her immigration status was dependent upon his.
At one point, the Appellant told her doctor of the domestic abuse she suffered after seeking assistance and was offered advice but decided to remain in the relationship and held back from reporting abuse to the authorities.
In July 2021, the Appellant's husband attempted to suffocate her whilst sexually abusing her. She believed he intended to kill her. The incident was interrupted by their son who, alarmed by sounds of distress, rushed into the room.
Shortly thereafter the Appellant left the matrimonial home, along with her son, with assistance from a Women's Help Centre. She was accommodated, with her son, in an emergency shelter for victims of domestic violence. There, anticipating the need to address her immigration situation as the end of her leave to remain approached, she explored the possibility of work sponsorship as a primary school teacher but learned that primary school teachers had been taken off the shortage occupation list in 2020 and therefore she could not find a relevant sponsor. She was assisted to make an application under the DDVC on 21 July 2021.
The Respondent refused the Appellant's application, upon which her son was named as a dependant, on 6 August 2021, on the basis that her husband's leave to remain was not one of the types specified in the DDVC and DVILR.
On 5 November 2021 the claim for judicial review was lodged with the High Court. The substantive hearing took place before the Judge on 28 June 2022. He gave judgment, dismissing the claim, on 2 August 2022.
The Judge noted at paras. 30–31 that:
“30. SWP is now living in difficult circumstances because she is neither able to work nor have recourse to public funds. She does receive minimal support of £77 for food and other basic necessities, despite her “nil recourse” status. That is all that stands between her and destitution at present, unless she were to leave this country. Z is being provided with education at school. SWP wishes to teach and is currently doing volunteer work full-time at Z's school
31. She is very reluctant to return to WP but says she would consider this as a last resort, for her son's sake, rather than return to India where, she says, she would be unable to provide Z with a good education, as it is too expensive. She hopes that this judicial review will enable her to obtain access to state benefits and, eventually, that she will be able to settle here with Z independently of WP and work as a teacher.”
The Judgment of the High Court
It was common ground between the parties that:
(1) The issue fell within the ambit of Article 8 of the ECHR so as to engage Article 14.
(2) The Appellant's immigration status was an “other status” for the purposes of Article 14. However, it is not a core or “suspect” status.
(3) There was a difference in treatment on the ground of that other status.
The Judge noted, at para. 46, that the claim did not expressly put in issue the legality of the DVILR, since the decision challenged was that dated 6 August 2021, refusing temporary leave to SWP under the DDVC. The Judge, however, found at para. 49 that there was “an implicit” assertion that the DVILR is discriminatory.
At para. 52, the Judge noted that the main focus of the argument before him related to the comparison between the expectations of settlement of, on the one hand, Tier 2 migrant workers said to be on a path to settlement and, on the other, refugees and EEA nationals on a path to settlement.
At para. 66, the Judge rejected any suggested analogy with a British citizen or settled person. At paras. 67–69 he also rejected a suggested analogy between a Tier 2 worker and a refugee.
At paras. 73–74 the Judge was prepared to proceed on the assumption that there was a sufficiently close analogy between the Tier 2 worker and the EEA national with pre-settled status.
He therefore turned to the crucial issue in the case which was that of justification, at paras. 75–83. He concluded that the difference in treatment between a Tier 2 worker and an EEA national under the EUSS scheme was objectively justified. For that reason he dismissed the claim for judicial review.
It is that conclusion on justification which is the subject of challenge in the present appeal.
Relevant policies
The relevant provisions of the Immigration Rules, in Appendix FM, have been amended to include the partner of a person with refugee leave; or a person in the UK with limited leave under Appendix EU, that is...
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