In a decision of 27 May 2016, the Inner House of the Court of Session held that excluding the spouses of refugees from the so-called ‘domestic violence concession’ (DVC) in Section DVILR of the Immigration Rules discriminates against such spouses in violation of Article 14 of the European Convention of Human Rights. The case is A v Secretary of State for the Home Department [2016] CSIH 38.

Although an application for leave to appeal the decision of the Inner House to the Supreme Court has been lodged by the Secretary of State, it is hoped that the challenge will eventually result in a change to the Immigration Rules so as to afford the spouses of refugees who have suffered domestic violence the same protection as is afforded the spouses of British citizens and persons settled in the United Kingdom (i.e. with a grant of indefinite leave to remain, or ILR).

In the meantime, while applications for ILR can be submitted on behalf of individuals who would otherwise meet the requirements of Section DVILR with reference to this decision, plainly as matters stand the most that can be asked for is that a decision in relation to the application is not issued until such time as a final decision in relation to the case (whether on the application for leave or otherwise) has been handed down.

Context

The context of the decision is important. In 1998, it was recognised by the then Labour government that foreign national spouses who suffered domestic violence during the so-called ‘probationary period’ of leave were in an invidious position: either they left the relationship and faced removal on the basis that the relationship was no longer subsisting, or they stayed in an abusive relationship until at least such time as they were themselves entitled to apply for ILR. Some people did in fact choose the latter course, and were, moreover, advised to do so in order to protect their immigration position; for some, it was not so much about remaining in the UK as avoiding returning to their country of origin, on the basis that it would be unsafe for them to do so precisely because of the fact of the relationship having broken down and the allegation of domestic violence having been made.

Against that background, in 1999 a concession was introduced, outside the Immigration Rules, from the requirement inside the Rules for the spouse to have completed the full probationary period of leave (then 12 months) before being eligible to apply for ILR. By virtue of the concession (i.e. the DVC), an applicant required instead of proving a genuine and subsisting relationship to evidence domestic abuse. The DVC originally imposed stringent evidential requirements on applicants seeking to take advantage of its terms; either an injunction; a conviction; or a police caution was required. In 2002, however, the evidential requirements were relaxed at the same time as the DVC was incorporated into the Rules (in Part 8) themselves. The current version of the DVC is contained in Appendix FM, although Part 8 remains subject to transitional provisions.

In 2005 and in a parallel development to the incorporation of the DVC, the government announced a ‘Five year strategy for asylum and immigration’ (Cm 6472) which aligned the leave granted to refugees and the spouses of refugees to the limited leave granted to other, temporary migrants. Previously, refugees and their spouses were granted ILR automatically on their status being recognised, with the result that it had never before been necessary for the spouse of a refugee to rely on the DVC: there simply was no probationary period to complete, and once refugee status had been granted, the spouse of a refugee who suffered domestic violence would, everything else being equal, be free to leave the abusive relationship. The effect of the 2005 changes, therefore, was to place spouses of refugees in the same invidious position as all other foreign national spouses whose relationship had broken down during the probationary period. The terms of the DVC, however, being limited to the spouses of British citizens and persons settled here, were such as to prevent them from being able to rely on the protection to such persons that the DVC was, in general, intended to provide.

Mrs A

Mrs A, the petitioner (claimant) in this case, was a Ugandan national who had joined her husband in the United Kingdom on his having been recognised as a refugee and having been granted 5 years limited leave to remain. The couple separated after a series of incidents which culminated in an assault for which the husband was convicted of a domestic violence-related offence. Mrs A subsequently claimed asylum, and whilst her application was rejected, she and her children were granted discretionary leave to remain in the United Kingdom on the basis of their family life here. Importantly, domestic violence was accepted by the Secretary of State for the Home Department (Secretary of State) as having taken place and it was further acknowledged that Mrs A would be “of adverse interest” to her husband’s family if she were required to return to Uganda.

In 2014, an application was made by Mrs A for ILR under Section DVILR of Appendix FM (i.e. the DVC), but that application was refused on the basis that she was not the spouse of a British citizen or settled person and so did not satisfy the eligibility criteria in Section E-DVILR.1.2.. Mrs A raised proceedings for judicial review against that decision, seeking its reduction as well as a declaratory order (in Scotland, ‘declarator’) that the rule under which the application had been refused (the version of Section E-DVILR.1.2. of Appendix FM then in force) was ultra vires the Secretary of State as being incompatible with the rights of Mrs A under Article 14 when read with Article 8 ECHR. Specifically, it was argued on behalf of Mrs A that the exclusion of spouses of refugees from the scope of the DVC was unlawful on the basis that it discriminated against them on grounds of ‘other status’ contrary to Article 14 ECHR, as well as indirectly on the grounds of sex, as women and particularly migrant women are disproportionately affected by domestic violence.

First instance

At first instance, the Lord Ordinary (Lord Philip) ([2015] CSOH 62, reported at [2015] SLT 407) accepted that there was relevant discrimination against Mrs A within the meaning of Article 14 ECHR but refused the petition on the basis that it had been justified by the state. In so holding, Lord Philip accepted the Secretary of State’s argument that a refugee could be equiperated with a student or economic migrant and accordingly ought to hold no expectation of stay in the United Kingdom. Particular reliance was placed by the Lord Ordinary on the decision of the European Court of Human Rights in Rodrigues da Silva v Netherlands, a case concerning illegal entry.

Decision of 27 May 2016

In its decision overturning the Lord Ordinary’s decision, the Inner House began by emphatically rejecting the Secretary of State’s equiparation of the position of refugees with other, temporary migrants, stating that:

“…The status of refugee … is declaratory.  Once it has been determined to exist the state has no discretion, in terms of its international and humanitarian obligations, but must grant asylum.  …  Once refugee status is acknowledged, international obligations require the state to facilitate assimilation and naturalisation, again a situation quite different from that of a worker or student. A refugee is not in this country as a matter of choice or selection in the way that a student or worker may be: they have been admitted to the country because they have a well-founded fear of persecution in their own country. The idea that the spouse of such a person might be any less likely “from the outset to loosen or cut their ties with their country of origin” seems to us to be fanciful.  Such an approach ignores several aspects of the reality of the position of a refugee.”

In reaching its decision, the Inner House relied on (amongst other factors) statistical information which showed that 95% of settlement applications submitted by refugees were granted; and also the fact that, although refugee status may be lost, or a refugee expelled, the grounds upon which either might occur were significantly limited, not simply as a matter of domestic law, but as a matter of international law under the Refugee Convention. The court noted that:

“Proceeding to settlement at the end of the 5 year period is very much the rule, rather than the exception. These considerations in our view indicate that the position of a refugee is in no way to be equiparated with that of a student or worker, and the spouse of a refugee corresponds much more closely to the spouse of a British Citizen or person settled in the UK”.

Thus, insofar as the Lord Ordinary accepted that a refugee could be equiparated with someone in the UK on a work or study visa, and considered that the spouse of a refugee was not entitled to have any reasonable expectation of proceeding to have a future life and permanent home in the United Kingdom, the Inner House considered him to have misdirected himself in law.

Two further issues arose in the course of the appeal. The first was as to the status of the refugee in terms of whether it could properly be described as “precarious”. Despite an argument being put forward by the Secretary of State to the effect that the refugee has a “certainty of uncertainty” in relation to his or her future in the United Kingdom, the Inner House considered the mere fact that a refugee’s status might come under review at the end of the five year period not to equate with precariousness per se; as noted above, of the two categories of person with whom the refugee might be compared, it was not the category which might properly be described as precarious (such as the illegal entrant who was the subject of the decision in Da Silva on which the Lord Ordinary had relied), but the British citizen or person who is settled here. The second issue which arose was in relation to the ‘test’ for justification under Article 14, and, more particularly, the stage at which the so-called “manifestly without reasonable foundation” test ought to be applied (at every stage, or stopping short of proportionality), but ultimately the court did not consider it necessary to determine this question on the basis that, even applying the high threshold test of “manifestly without reasonable foundation”, the measure in question was not able to be justified.

Ultimately, the most important factor in the court’s decision to reject the Secretary of State’s argument as to justification appears to have been the fact that the exclusion of the spouses of refugees from the DVC was an oversight, the court referring in this regard to the change in 2005 regarding the duration of the initial grant of leave to a refugee. Largely on that basis, the Inner House concluded that the line had been drawn by the Secretary of State effectively by oversight, with the justification advanced in respect of that line being described as “weak to the extent of being unjustifiable”.

Although the reclaiming motion was allowed and the decision of the Secretary of State reduced, the court declined to grant the declarator sought on the basis that it was not considered necessary, in what is assumed to be a reference to the fact that the rule in question has been amended since the proceedings were raised. Whether further proceedings are required in that regard, and whether this case proceeds any further, remains to be seen.

Sarah Crawford, instructing solicitor, Legal Services Agency and Lesley Irvine, junior counsel for the petitioner and reclaimer, Axiom Advocates. The recently appointed Lord Advocate, James Wolffe QC, acted as senior counsel in the appeal.