The Court of Appeal has re-affirmed that the domestic violence provisions in the immigration rules are restricted to certain categories of partners and is not open to partners of Points Based System dependants, even if they have in fact suffered domestic abuse. The case is SWP v Secretary of State for the Home Department [2023] EWCA Civ 439.

This sad case concerned an Indian national who came to the UK as a dependant of her Tier 2 migrant husband. SWP had fled the family home with her son and sought refuge at an emergency shelter for victims of domestic abuse. She had various qualifications in the education sector and had experience in teaching. However, SWP was unable to obtain sponsorship as a primary school teacher because such roles had been taken off the Shortage Occupation List in 2020. Instead, she made an application under the Destitute Domestic Violence Concession.

The concession gives certain applicants a 3-month period of leave to remain in the UK and enables them to access certain public funds and support. It acts essentially as a springboard to help applicants eventually apply for Indefinite Leave to Remain under section DVILR of Appendix FM of the Immigration Rules. The Home Office refused her application on the basis that her husband’s status as a Tier 2 migrant was not one of the types specified which qualified her to be granted leave.

Since the possibility of obtaining indefinite leave to remain under section DVILR was introduced, there are two exceptions to the principle that an applicant’s spouse must be a British Citizen or settled person:

• Firstly, where the applicant is a partner of a person with refugee status. This was in compliance with the Scottish case of A v Secretary of State for the Home Department [2016] CSIH 38;

• Secondly, for partners of an EEA National granted pre-settled status following the implementation of the Withdrawal Agreement;

Although it was agreed that SWP had been treated differently from the categories above, her main argument was that the difference in treatment was not objectively justifiable under Article 14 as read with Article 8.

The Home Office’s rationale behind the domestic violence concession was that those who came to the UK as a partner of a person a temporary work or study visa have no legitimate expectation of being able to live here permanently. Whereas, other categories of partners e.g. spouses of settled persons and refugees, would have such a legitimate expectation. Indeed, persons such as refugees were here, by definition, out of necessity and not out of choice.

For Article 14 to apply, the court noted there must be a difference in the treatment of persons in analogous situations. The only realistic comparison which could be made was between the partner of a person with pre-settled status and the status of SWP as the partner a points based system migrant.

The argument advanced was that once it was accepted that the provisions of the domestic violence concessions are not confined to persons who have citizenship or settled status, there is no proper basis for distinguishing the status of a partner of a Tier 2 migrant. The Court of Appeal noted that unlike a person with pre-settled status, a Tier 2/Skilled Worker migrant might have issues with their sponsor becoming insolvent, losing sponsorship, or getting in trouble with the police and courts.

This was an area where a wide margin of judgement should be afforded to the government because it concerned general economic and social strategy matters. The provisions of the EU Settlement Scheme were strictly required to be implemented as a matter of international law under the Withdrawal Agreement, but this situation was “unique”.

The Court also rejected an analogy with the High Court’s decision in AM v Secretary of State for the Home Department [2022] EWHC 2591 (Admin) which found that the lack of route for victims of transnational marriage abandonment was unlawful. They said the policy issues in terms of applicants having an expectation to a right of settlement and the Home Office’s wish to protect such victims of abuse, were the same and did not take SWP any further.

This is a classic example of how an inflexible approach in applying the immigration rules can leads to a very stark decision to refuse a destitute mother and her son from staying in the UK. In some ways, this case is a not million miles away from the example of someone who earns just below the £18,600 threshold and therefore does not satisfy the financial requirement to sponsor their partner. In both cases, there is a distinctive line which is set down by the immigration rules and underpinned by government policy (some of which might be based on shaky or questionable conclusions).

As the Court noted, the formulation of the immigration rules and the policy underpinning them raised difficult, sensitive and polycentric issues. Such policy challenges are important in challenging fundamentally incompatible rules, but in cases where the Home Office have a wide margin of discretion challenges are very difficult. This case raises considerable concern about the welfare of migrants who, in the meantime, have to endure the stress and burden of litigation whilst living in uncertainty.