A Reclaimer against THE SECRETARY of STATE for THE HOME DEPARTMENT Respondent
| Jurisdiction | Scotland |
| Judge | Lord Philip |
| Judgment Date | 27 May 2016 |
| Neutral Citation | [2016] CSIH 38 |
| Date | 27 May 2016 |
| Published date | 27 May 2016 |
| Court | Court of Session (Inner House) |
| Docket Number | No 45 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2016] CSIH 38
P1025/14
Lady Paton
Lady Dorrian
Lord Drummond Young
OPINION OF THE COURT
delivered by LADY DORRIAN
in the Reclaiming Motion
by
A
Reclaimer;
against
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent:
Reclaimer: Dean of Faculty, Ms Irvine; Drummond Miller LLP
Respondent: Webster; Office of the Advocate General
27 May 2016
Background
[1] The petitioner is a Ugandan national. On 1 July 2009 the petitioner’s husband, also a Ugandan national, was granted refugee status in the UK on the grounds of fear of persecution for reasons of political opinion, and granted 5 years leave to remain until 30 June 2014. His current immigration status is unknown, although the petitioner believes him to have applied for, and been granted, indefinite leave to remain in the UK (“ILR”).
[2] The petitioner’s husband having been granted leave to remain in the UK as a refugee, she applied for a visa for herself and four of their children to join him. Leave which may be granted under such a visa reflects that of a type and for a period equivalent to that granted to the refugee himself. On 22 July 2010, a family reunion visa was granted for the petitioner and her three youngest children, with leave to remain until 30 June 2014. The family were reunited in Glasgow in late 2010.
[3] The petitioner and her husband separated on 6 November 2011, following an assault on her by him which had been the culmination of a series of verbal and physical abuse. She remained in Glasgow, where her three children are in full-time education, at school or university. The petitioner has enrolled at college and avers that since moving to Glasgow she has made a number of close friends, several of whom supported her during the domestic abuse suffered by her.
[4] In November 2011 the petitioner claimed asylum and humanitarian protection based upon imputed political opinion as a result of her husband’s political activities, and threat from his family in Uganda as a result of her having left him. Her claims were refused on 26 April 2012, but she was granted discretionary leave to remain on the basis of family life until 25 April 2015. The decision letter accepted that she was a victim of domestic violence.
[5] On 20 January 2014, the petitioner applied for ILR as a victim of domestic abuse. That application was refused on 17 February 2014. It was considered that the petitioner failed to meet the requirements of the immigration rules for a grant of leave to remain as a victim of domestic violence, on the basis she was not the spouse of a British citizen or an individual settled in the UK. However, on the basis of their private and family life, the petitioner and her children were granted further discretionary leave to remain, until 16 February 2017.
[6] In her petition for judicial review, the petitioner sought reduction of the decision of 17 February 2014 and declarator that the relevant section of the Immigration Rules (E-DVILR1.2) was ultra vires of the Secretary of State, in that in excluding from its scope spouses or former spouses of refugees, it unlawfully discriminated directly against such spouses, in violation of articles 14 and 8 of the ECHR, contrary to section 6 of the HRA 1998. The rule was also indirectly discriminatory against women who were the spouses or former spouses of refugees, on the basis that women were more likely to be the victims of domestic violence.
The Immigration Rules
[7] The spouse (or partner) of someone who has been granted refugee status in the UK may apply for leave to remain in, or enter, the UK as a partner. They may do so under the family reunion scheme, as did the reclaimer, or they may do so under separate rules which provide for a grant of limited or indefinite leave to remain as a partner under Appendix FM of the rules.
Family Reunion Visa
[8] As noted in rule 339R, the family reunion scheme is contained in rules 352A to 352FJ of the Immigration Rules. The important point to note for present purposes is that the permission is granted to the spouse or dependent children in terms of different paragraphs of the scheme. So far as a spouse is concerned, the leave granted is referred to as leave to enter or remain as the spouse or civil partner of the refugee. The leave will be granted for the same duration as the leave granted to the refugee. The respondent had averred that the reclaimer “has never held limited leave to remain in the United Kingdom as a spouse or partner of any kind”. That averment was not insisted upon in argument. It had been made at a time when her exact status had not been clear, and it was accepted that the leave granted to her under the family reunion scheme was leave as the spouse of a refugee.
Appendix FM
[9] The provisions for limited or indefinite leave to remain contained within this appendix apply not only to the partners of refugees but to the foreign partners of British Citizens or persons settled in the UK. For the purposes of Appendix FM a “partner” is defined as a spouse, civil partner, fiancée or proposed civil partner, or someone who has been living with the applicant in a relationship akin to marriage or civil partnership, unless a different meaning of partner applies elsewhere in the appendix. Section GEN.1.1 of the Appendix notes that the purpose of its provisions is to create a route to settled status for non‑nationals seeking to enter or remain in the UK on the basis of their family life with a person who is a British Citizen, is settled in the UK, or is in the UK with limited leave as a refugee or a person granted humanitarian protection. A spouse or partner of someone within the latter categories may apply for permission to enter or remain in the UK as a partner. Provided that the other relevant conditions are satisfied, a qualifying person may be eligible for leave to remain which may be indefinite (ILR) or for a limited period. An applicant who meets the requirements will be granted limited leave to remain for a specified period, and subject to certain financial conditions, will be eligible to apply for settlement after a continuous period of at least 60 months with such leave. “Settlement” in these circumstances means ILR as a partner. In the most general terms, a person who, through this route, has obtained limited leave to remain as a partner and has completed a continuous period of at least 60 months with that leave, will be granted indefinite leave to remain.
Victims of domestic violence
[10] Generally, for a grant of ILR as a partner, the relationship must still be subsisting. However, specific provision is made for the grant of ILR to victims of domestic violence, notwithstanding that they had separated from their spouse. The provisions have since been amended but at the time of the decision in this case essential eligibility requirements, so far as relevant to the current proceedings, were that the last grant of limited leave must have been as a partner of a British Citizen or a person settled in the UK, and that evidence was produced to show that during that last period of limited leave the relationship broke down permanently as a result of domestic violence. Where all the relevant requirements were met the applicant would be granted indefinite leave to remain as a victim of domestic violence.
[11] The domestic violence provisions were first introduced into the rules in 2002. Prior to that, the Secretary of State had from 1999 operated a concession in relation to victims of domestic violence. At both dates, the phrase “a British Citizen or a person settled in the UK” would have included reference to a refugee, since, until 2005, an individual whose refugee status was recognised by the UK government was immediately given ILR, thus becoming “a person settled in the UK”. The foreign spouse of a British Citizen or a person settled in the UK would initially be granted leave to enter for a probationary period before they would be entitled to apply for ILR. This was initially 12 months, appeared to increase to 24 months and is now 5 years. At the end of the probationary period, the spouse could apply for settlement (ILR). If, for whatever reason, the marriage broke down during that probationary period, settlement would normally be refused, since the fundamental reason for admission in the first place – to continue or commence family life – no longer existed. However, it was recognised that this put the victim of domestic violence in an invidious position. As the Parliamentary Under-Secretary of State for the Home Department put it when the issue was debated in the House of Commons (Hansard, 24 June 1998, vol 314, cols 1023-30):
“When the overseas spouse becomes the victim of domestic violence during her first year here, she faces the prospect either of staying within that violent relationship or of being refused settlement if she escapes from it, because the marriage would then be no longer subsisting.”
He went on to say:
“Paragraph 35 of the Select Committee report sets out the problem graphically. It says: Some black and ethnic minority women may be particularly inhibited from reporting domestic violence because of the provisions of immigration legislation. In essence, a spouse of a person who is present and settled in the United Kingdom is admitted to this country for an initial period of 12 months. During that period, she or he may not have any recourse to public funds, and, if the marriage breaks down, is liable to deportation. If a woman with this immigration status is the victim of domestic violence, as the Southall Black Sisters told us, she is likely to be fearful of using either the criminal or civil justice system because she realises that she is at risk of being required to leave the country, and believes that the authorities will take action against her. Consequently, her choice is stark—she must risk her physical safety or risk deportation, and she will not...
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