The Queen (on the Application of FA (Sudan)) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Murray |
| Judgment Date | 14 December 2018 |
| Neutral Citation | [2018] EWHC 3475 (Admin) |
| Docket Number | Case No: CO/5603/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 December 2018 |
[2018] EWHC 3475 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Murray
Case No: CO/5603/2016
Mr Ramby de Mello (instructed by Bhatia Best Limited) for the Claimant
Mr Gwion Lewis (instructed by the Government Legal Department) for the Defendant
Hearing date: 7 November 2018
Judgment Approved
The claimant (“FA”) seeks to challenge by way of judicial review the decision dated 9 August 2016 (“the Decision”) of the defendant, the Secretary of State for the Home Department, finding FA to be ineligible for the benefit of his policy known as the destitution domestic violence (DDV) concession (“the DDV Concession”).
Although in her original claim she did not appear to do so, FA apparently now accepts that she is not eligible for the DDV Concession as it was formulated at the time of the Decision. She maintains, however, that she should have been and should be eligible and that the failure of the Secretary of State to extend the DDV Concession to cover her case:
i) contravenes article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) read in conjunction with article 8 of the Convention;
ii) contravenes article 18 of the Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime [2012] OJ L315/57 (“the EU Victim Rights' Directive”) taken together with article 24 (The rights of the child) of the Charter of Fundamental Rights of the European Union [2012] OJ C326/391 (“the EU Charter”); and
iii) contravenes section 55 of the Borders, Citizenship and Immigration Act 2009 (“the 2009 Borders Act”), which requires the Secretary of State to ensure that, in discharging any function in relation to immigration, asylum or nationality, he has regard to the need to safeguard and promote the welfare of children who are in the United Kingdom.
Background
FA is a national of Sudan, who was born on 4 November 1994. By her own account, she was married to Mr Ashraf Mohammed Ahmed, who is a British citizen, on 28 October 2011, when she was 16 years old. The marriage took place in Sudan. FA then had a son, who was born in Sudan on 4 August 2012.
She applied for a UK entry clearance family visit visa, but this was refused by the Secretary of State on 11 September 2013. I note that the Decision wrongly records that the visa was issued on that date and was valid until 11 March 2014, but evidence subsequently produced by the Secretary of State in June 2017 shows that the visa was, in fact, refused. Nothing turns on this.
FA travelled directly from Sudan to the Netherlands on 12 December 2014 on a Schengen visa, which she had obtained with the assistance of her husband while still in Sudan. She lived in a small village in the Netherlands, although she cannot identify it, as the local language was unfamiliar to her when she lived there. Her husband was living then in the UK, but he came to visit her in the Netherlands once a month, each time for a short period of two to four days. When he visited her, he would give her between €100 and €250 in cash. She did not have a credit card, but she did have a card that could be loaded with an amount. The cash she received from her husband was the only money that she had while she was in the Netherlands. She did not receive any state benefits there.
On 13 August 2015 Mr Ahmed collected FA and took her to the UK. According to her evidence, she initially thought that he had collected her for a shopping trip, but they eventually boarded a ferry. She said that to get on the ferry, she had to show her Dutch residence card, her Sudanese passport and her marriage certificate. When they arrived in the UK, they were not asked for any papers.
Following her arrival in the UK, FA lived with her husband in Birmingham. Her daughter was born there on 21 September 2015. Both of her children are British citizens, and they live with her now.
FA fled the family home in January 2016 as a result of domestic violence suffered at the hands of her husband. She sought public assistance. With the help of Birmingham Social Services, on 4 August 2016 she also applied for leave to remain outside the rules (“LOTR”) on the basis of the DDV Concession.
On 9 August 2016, the Secretary of State made the Decision, rejecting her application on the basis that she was not eligible for the DDV Concession as she had not entered the United Kingdom under one of the routes for which the DDV Concession was established. The letter, which was signed by the Domestic Violence Duty Officer, is quite short. I set out the body of it in full:
“Our records show you were issued with United Kingdom Entry Clearance family visit visa on 11 September 2013 valid to 11 March 2014.
You have been found not to be eligible under the Domestic Violence Concession (DDV) as you did not enter the United Kingdom or were not given leave to remain in the United Kingdom as a spouse, civil partner, unmarried or same sex partner of a British Citizen or someone present and settled in the UK.
This letter is not an immigration decision for the purpose of section 82(1) of the Nationality, Immigration and Asylum Act 2002. There is no right of appeal against this.
You may wish to seek advice or seek alternative means of support. A list of providers is attached with this letter.”
The DDV Concession
At the time of the Decision, the DDV Concession was set out in a Home Department policy document entitled “Victims of domestic violence”. Version 13 of that document, which was published on 29 May 2015, was the relevant version at the time of the Decision and remained in effect until 4 February 2018. The DDV Concession was set out at pages 44 to 48 of that document, where it is referred to as the “destitution domestic violence (DDV) concession”.
The current version of the policy is now published by the Home Office, separately from its other guidance on victims of domestic violence, in a document entitled “Destitute [sic] domestic violence (DDV) concession – version 1.0”, which was published for Home Office staff on 5 February 2018. The key provisions remain essentially the same.
The DDV Concession is a policy operated by the Home Office outside of the Immigration Rules to allow eligible applicants, who intend to make an application for settlement under the domestic violence rules, to be granted LOTR and permitting them to access public funds and vital services. This gives the applicant access to temporary accommodation such as a refuge in order to leave her or his abusive partner and to submit a settlement application under the domestic violence rules. A successful applicant for LOTR under the DDV Concession does not have to meet the habitual residence test she or he would otherwise have to meet with other types of leave under criteria set by the Department of Work and Pensions.
If a successful applicant for LOTR under the DDV Concession fails to submit her or his application for settlement under the domestic violence rules within three months of the grant of LOTR under the DDV Concession, then the applicant becomes an overstayer and becomes subject to removal from the United Kingdom. The DDV Concession stipulates that within 28 days of an applicant's LOTR lapsing the applicant's case should be referred for enforcement action.
In order to be eligible for the DDV Concession, the applicant must satisfy all of the following conditions:
i) the applicant must previously have been granted leave to enter or remain as the spouse, civil partner or unmarried or same-sex partner of a British citizen, a settled person or a member of HM Forces who has served for at least four years;
ii) the applicant's relationship with her (or his) spouse, civil partner, unmarried or same-sex partner must have broken down as a result of domestic violence;
iii) the applicant must claim to be destitute and not to have access to funds; and
iv) the applicant must intend to apply for indefinite leave to remain as a victim of domestic violence under one of the following provisions of the Immigration Rules:
a) paragraph 289A;
b) paragraph 40 of Appendix Armed Forces; or
c) section DVILR of Appendix FM (Family Members).
Paragraph 289A sets out requirements that must be met by a person who is a victim of domestic violence and who is seeking indefinite leave to remain in the UK. It forms part of part 8 of the Immigration Rules, which is concerned with family members. Section DVILR of Appendix FM (Family Members) provides an alternative set of requirements to be met by a person who is a victim of domestic violence and who is seeking indefinite leave to remain in the UK.
It is common ground that FA satisfies criteria (ii) and (iii) set out at [14] above, but not criteria (i) or (iv). In relation to criterion (iv), she cannot have the requisite intention, because she does not satisfy the pre-conditions to applying under any of the routes mentioned in (iv). It follows, therefore, that FA is ineligible for the DDV Concession on its terms.
FA's case, set out in the Amended Grounds of Review, appears to be that it should be sufficient for purposes of the DDV Concession that she entered the UK lawfully as the spouse of a British citizen and that she suffered domestic violence at his hands. She argues, in the alternative, that the Decision should be quashed on the human rights grounds to which I have already referred.
Procedural history
The procedural history of this claim is relevant. On or about 2 November 2016 FA issued her application for permission to apply for judicial review of the...
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The Queen (on the application of FA (Sudan)) v Secretary of State for the Home Department
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