The Queen (on the application of FA (Sudan)) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Singh,Lord Justice Popplewell,Lord Justice Phillips |
| Judgment Date | 22 January 2021 |
| Neutral Citation | [2021] EWCA Civ 59 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2019/0561 |
| Date | 22 January 2021 |
[2021] EWCA Civ 59
Lord Justice Singh
Lord Justice Popplewell
and
Lord Justice Phillips
Case No: C4/2019/0561
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Murray
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Ramby de Mello and Mr Danny Bazini (instructed by Bhatia Best Solicitors) for the Appellant
Mr Gwion Lewis (instructed by The Government Legal Department) for the Respondent
Hearing date: 13 January 2021
Approved Judgment
Introduction
This is an appeal against the dismissal on 18 December 2018 by Murray J of a claim for judicial review, in which the Appellant challenged a decision by the Respondent dated 9 August 2016, to the effect that she did not qualify for leave to remain in the United Kingdom outside the Immigration Rules under a concessionary policy made in April 2012: the ‘Destitution Domestic Violence Concession’ (“the DDVC” or “the Concession”). In these proceedings the Appellant in substance challenges the lawfulness of the policy in the DDVC.
Permission to appeal to this Court was granted by Longmore LJ in an order sealed on 5 August 2019.
We are grateful for the submissions of Mr Ramby de Mello, who appeared for the Appellant with Mr Danny Bazini, and Mr Gwion Lewis, who appeared for the Respondent.
Factual Background
The Appellant, FA, was born in Sudan on 4 November 1994. She married Ashraf Mohammed Ahmed, a British Citizen, on 28 October 2011 and gave birth to their first child in Sudan on 4 August 2012.
The Appellant travelled to the Netherlands from Sudan on 12 December 2014 and later entered the UK with her husband, using a Dutch residence card, on 13 August 2015. FA resided with her husband in Birmingham from that date until January 2016, when she left the matrimonial home. FA gave birth to their second child on 21 September 2015.
On 4 August 2016, FA applied for leave outside the Immigration Rules (“LOTR”) under the DDVC. On 9 August 2016, that application was refused by the Respondent on the grounds that FA was not eligible for LOTR under the DDVC, as she did not meet the criteria set out in the DDVC. The material paragraph of the decision letter said:
“You have been found not to be eligible under the [DDVC] 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.”
On 3 November 2016, FA applied for permission to bring a claim for judicial review of that decision. This was granted by Mr Timothy Brennan QC, sitting as a deputy High Court judge, on 13 March 2017.
Thereafter the proceedings took an unusual turn in the context of judicial review. The Secretary of State applied for there to be a preliminary hearing to determine issues of fact on the date when the substantive hearing of the claim for judicial review was due to take place. On 3 July 2017, HHJ Peter Lane (as he then was), sitting as a judge of the High Court, granted that application.
The preliminary hearing was held on 11 July 2017 before Jefford J to decide three questions of fact:
(1) Did FA enter and then reside in the Netherlands, as she claimed, in or around 2014–2015?
(2) Did FA enter the United Kingdom lawfully in 2015 as the “family member” of a returning British citizen, as she claimed?
(3) Did FA reside with her husband for five years, as she claimed?
Judgment was handed down on 13 December 2017: [2017] EWHC 3194 (Admin).
In answer to the first question, Jefford J found that FA did enter and reside in the Netherlands in 2014–2015.
Jefford J declined to answer the second question as formulated because in part it raised an issue of law (that is the lawfulness of FA's entry to the UK). Jefford J dealt with the question only in so far as it raised issues of fact about the circumstances in which FA had entered the UK. She found that FA's husband visited from the UK for short periods monthly. During those visits he spent time with FA and focussed on her. Jefford J found that FA's husband was not working or studying in the Netherlands while FA lived there. She found that FA was not working but was being paid around €100 to €250 per month by her husband and he paid her rent. She had no other means of funding. Jefford J found that FA obtained the Dutch residence card from a government building and that it was not a “black-market fake of some description”. She found that FA's husband assisted her in obtaining the residence card, attending interviews as her interpreter and attending to paperwork.
In relation to the journey from the Netherlands to the UK, Jefford J found that FA did not conceal herself aboard the ferry and had her credentials checked by an officer when she boarded the ferry, but not on arrival into the UK. She found that FA did not know that she was leaving the Netherlands when she travelled to the UK and did not know where she was. It is likely that the ferry left from a port in France.
In answer to the third question, Jefford J found that FA had not resided with her husband for five years. They did not live together until they moved to the matrimonial home in Birmingham in August 2015 and FA left that residence in January 2016.
Following the judgment of Jefford J, FA applied for permission to amend the grounds of claim on 13 February 2018. This was granted by Mostyn J on 24 July 2018.
The substantive claim for judicial review was heard by Murray J on 7 November 2018 and dismissed in the judgment given on 14 December 2018.
The Concession
The relevant provisions of the DDVC and Immigration Rules were helpfully summarised by Murray J, at paras. 10–16 of his judgment, as follows:
“10. 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’.
11. 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.
12. 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.
13. 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.
14. 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).
15. 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.
16. 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.”
The background to the Concession was described by Moore-Bick LJ in R (T) v Secretary of State for the Home Department [2016] EWCA Civ 801, at para. 2, as follows:
“The DDV Concession was established outside the Immigration Rules...
To continue reading
Request your trial
-
R (on the application of SWP) v Secretary of State for the Home Department
...for indefinite leave to remain.” 36 I summarised the position in R (FA (Sudan)) v Secretary of State for the Home Department [2021] EWCA Civ 59; [2021] 4 WLR 22, at paras. 46–50 as follows: “46. The fundamental starting point is, as the judge recognised, the rationale for the policy in th......
-
The King (on the application of) DXK v The Secretary of State for the Home Department Migrant Helpline Ltd (t/a ‘Migrant Help’) (A Charity)
...considerations’: [70(v)]. v) Section 55 is a ‘process duty and does not dictate any particular outcome in a case’: R (FA) v SSHD (CA) [2021] 4 WLR 22, [71]. Academic issue? 164 I consider it is appropriate substantively to resolve Ground 5 notwithstanding it is otherwise of academic intere......
-
R SWP v Secretary of State for the Home Department
...year period. They had a strong expectation of permanent settlement. 39 In R (FA) (Sudan) v. Secretary of State for the Home Department [2021] 4 WLR 22, the Sudanese spouse of a British husband lawfully entered the UK and lived here with her husband for four months, before leaving the matri......
-
Upper Tribunal (Immigration and asylum chamber), 2021-08-03, EA/02814/2019
...for those falling within the concession, which, it is clear from the Court of Appeal’s decision in Regina (FA) v Secretary of State [2021] EWCA Civ 59, provided only a temporary respite for those on a pathway to settlement. There is no proper comparison or equivalence between the appellant’......