R SWP v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kerr |
| Judgment Date | 02 August 2022 |
| Neutral Citation | [2022] EWHC 2067 (Admin) |
| Docket Number | Case No: CO/3859/2021 |
| Court | Queen's Bench Division (Administrative Court) |
| Year | 2022 |
[2022] EWHC 2067 (Admin)
Mr Justice Kerr
Case No: CO/3859/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Eric Fripp and Ms Sandra Akinbolu, instructed by Duncan Lewis Solicitors, appeared for the Claimant
Mr Jack Anderson, instructed by Government Legal Department, appeared for the Defendant
Hearing date: 28 June 2022
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email and will be released for publication on the National Archives caselaw website. The date and time for hand-down is 10am on 2 August 2022. I direct that no official shorthand note shall be taken of this judgment and that copies of this version as handed down may be treated as authentic.
Introduction
The claimant, an Indian citizen, will be called SWP because of an anonymity order made by Mr Hugh Southey QC in December 2021, when he granted permission to apply for judicial review on one of two grounds. SWP must not be identified. Her husband, WP, came to this country from India with a “Tier 2” migrant visa, intending to apply for settlement as a Tier 2 migrant worker.
SWP and their nine year old son, Z, joined him here in London in 2017 with permission to enter as dependants of WP. SWP and Z moved out of the family's accommodation last year due to domestic violence by WP against SWP, according to her evidence. There is no evidence of any criminal legal process. SWP now lives with Z in a women's refuge in south east London.
The issue is whether it was lawful for the defendant ( the SoS) to refuse SWP the benefit of her policy called the Destitute Domestic Violence Concession ( the DDV Concession or DDVC). Broadly, it gives certain dependants of some visa holders three months to apply for leave to remain in this country if they have had to flee from domestic violence, rather than that they should be driven to remain in an abusive relationship with their spouse or partner.
SWP argues that excluding her from the scope of the DDV Concession was contrary to her right under article 14 of the European Convention on Human Rights ( ECHR), read with article 8, to enjoy equality of access to her Convention right to respect for her family life. She submits, broadly, that as a Tier 2 migrant worker, her husband has an expectation of settlement comparable to that of a refugee or an EEA national; both categories now within the DDVC.
The SoS submits that the only issue is whether SWP should have been accorded three months to apply for leave to remain as a victim of domestic violence; that the comparison with refugees and EEA nationals is invalid; that the issue is not whether SWP's application for leave to remain should succeed under the Immigration Rules; and that even if it were, SWP is, lawfully, ineligible for leave to remain as a victim of domestic violence.
The Facts
SWP is an Indian national, born there in March 1987. She qualified as a teacher and taught at an international school in India. On 6 May 2011, she married WP, also an Indian national, born in 1983. Their son, Z, was born in India on 28 February 2012. WP worked for a management and outsourcing company.
Since about 1999, the SoS has operated by concession a provision for a victim of domestic violence with limited leave to remain ( LTR) as the spouse or partner of a person present and settled in the UK, to be granted indefinite leave to remain ( ILR), where the relationship has broken down due to domestic violence. The “present and settled” spouse or partner had to be ordinarily resident here, with no time restriction.
The concession became rule 289A of the Immigration Rules, in 2002. I need not set out the text. A difficulty arose with its operation: to escape from an abusive relationship, domestic violence victims needed a place of refuge, which they were often unable to afford, not being allowed any recourse to public funds. In response, the SoS introduced the temporary “Sojourner project”, in 2011 and 2012, providing limited interim funding for places of refuge.
That regime was replaced entirely from 9 July 2012, when the new Appendix FM to the Immigration Rules entered into force. It included a section on domestic abuse victims, Section DVILR: Indefinite leave to remain (settlement) as a victim of domestic violence. Within Section DVILR came Section E-DVILR: Eligibility for indefinite leave to remain as a victim of domestic abuse; and Section D-DVILR: Decision on application for indefinite leave to remain as a victim of domestic abuse.
I will return to those provisions. As for funding, a new concession at the heart of this case was also introduced in 2012, the DDV Concession. I do not have the text of the DDV Concession at that time; the version I have dates from 2018 and has not been updated since, though there is later guidance to Home Office staff on the subject. Mr Nick Wood, the SoS's senior policy adviser responsible for operating the DDVC, explains:
“The [DDVC] … allowed victims of abuse to apply for a change of conditions associated with their leave, to allow them to access public funds over a short period by granting 3 months leave outside the rules with recourse to public funds whilst they made their application for indefinite leave to remain under the Immigration Rules. This change of conditions meant that a victim of abuse was not precluded from accessing a refuge place due to having a condition of NRPF associated with their leave to remain but enabled them to have access to public funds pending their application for indefinite leave to remain.
….
… The domestic abuse provisions under the Immigration Rules and the concession provided only for those who are in the UK with leave as a spouse or partner of a British citizen or settled person (those who are defined as present and settled in the UK) for reasons set out above. The eligibility criteria for the DDVC were intended to mirror those who apply under the [DVILR]. That meant that the DDVC was available only to those whose spouse or partner was settled in the UK, because it was only where the spouse or partner was present or settled in the UK that a person could obtain indefinite leave to remain under the [DVILR] at that point.”
In May 2016, the Inner House of the Court of Session gave its decision in A. v. Secretary of State for the Home Department [2016] CSIH 38, holding that the DVILR violated article 14 of the ECHR, read with article 8, by excluding from its scope the spouse or partner of a refugee.
In about 2016, WP came to the UK to work and applied for LTR as a Tier 2 migrant under the points based system. He hoped to become settled in the UK. He agreed with SWP that she and their son Z would, if possible, join him here and that she would seek to qualify as and work as a teacher in this country. On 24 July 2017, SWP applied for entry clearance as the spouse of a Tier 2 migrant worker. That application was granted on 7 August 2017, up to 16 August 2018.
SWP and Z arrived in this country on 14 August 2017. SWP worked towards qualifying as a teacher in this country. However, according to her unchallenged evidence, she was experiencing severe domestic and sexual abuse and violence from her husband, as she had done previously when they were living in India. She dared not report it to the police, for fear of deportation. She had not dared report it to the authorities in India either. She describes WP as a “goon” or “hired thug” in India. The violence and threats caused SWP to fear for her life.
On 5 February 2018, the current and last version of the DDVC was published for Home Office staff. It stated as follows: that it did not apply to those whose LTR was given as the partner of a refugee or recipient of humanitarian protection who was “not settled” at the time of the application. It applied only to applicants previously granted LTR as the spouse or partner either of a British citizen or of a “settled person”.
To be eligible under the concession, the applicant's first grant of LTR under Appendix FM must have been under D-ECP.1.1 (entry clearance as a partner); or D-LTRP.1.1 or D-LTRP.1.2 (limited leave to remain as a partner); or D-DVILR.1.2 (not relevant here). It is common ground that SWP's first grant of LTR was under none of those provisions, meaning that on the face of the DDVC, she is not eligible for assistance in accordance with the DDVC.
The important point is that to be eligible, according to the text of the DDVC, the applicant must be the spouse or partner of a person who already has settled status. Those eligible are “granted 3 months leave outside the immigration rules (LOTR) with a condition code that does not restrict access to public funds”. For present purposes, “[o]nly those eligible to apply for leave under section DVILR of Appendix FM … are eligible for the DDV concession”.
Further, the applicant must:
“claim that their relationship with their spouse [or partner] has broken down as a result of domestic violence; … claim to need access to funds in order to leave the relationship; [and] … intend to apply for indefinite leave to remain as a victim of domestic violence”.
On 1 May 2018, SWP's application for LTR was again extended, on the same basis, so as to expire on 29 July 2020.
In December 2018, in response to the Court of Session's decision in A v. Secretary of State for the Home Department, the SoS amended E-DVILR so that eligibility for ILR on domestic violence grounds was extended to the spouse or partner of a refugee who has limited LTR but has not yet been granted ILR, i.e. has not yet attained settled status.
On 21 July 2020, SWP applied for a...
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R (on the application of SWP) v Secretary of State for the Home Department
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