In the recent case of R (SWP) v Secretary of State for the Home Department [2022] EWHC 2067 (Admin), the Court of Appeal re-affirmed that the domestic violence provision contained within Appendix FM of the Immigration Rules were restricted to certain categories of partners only, and that the dependent partner of a Points Based System worker is not one of those categories, even if they have experienced domestic violence.
This case involved an Indian national who arrived in the UK as a dependent of her husband, a Tier 2 migrant worker in 2017, with her son. In 2021, following years of domestic abuse, she was forced to escape her family home with her son and seek sanctuary at an emergency shelter for domestic abuse victims. She sought to vary her immigration status in the UK, by attempting to receive sponsorship as a primary school teacher. However, following reforms implemented in 2020, she was unable to do so.
As a result of which, she applied for the Destitute Domestic Violence Concession, which if successful, gives applicants 3-months leave to remain, in which they will be eligible to obtain certain public funds and support. The purpose of this is that typically migrants who enter the UK in order to work or join family, a condition of their stay is that they are unable to access public funds. This concession therefore allows them temporary reprieve. The understanding is that with the additional support, an applicant would then be able to apply for indefinite leave to remain as a victim of domestic violence.
The introduction of settlement based on being the victim of domestic violence was initially introduced for the dependent migrant partners of those who were either British or who held indefinite leave to remain. The Home Office’s reasoning for the domestic violence concession was that partners of those on temporary employment or study visas had no genuine expectation of being able to reside in the UK permanently, whereas spouses of settled people do.
The relevant rules of which are:
*Section E-DVILR: Eligibility for indefinite leave to remain as a victim of domestic abuse:
E-DVILR.1.2. The applicant’s first grant of limited leave under this Appendix must have been as a partner (other than a fiancé(e) or proposed civil partner) of a British Citizen, a person present and settled in the UK, a person with refugee leave, or a person in the UK with limited leave under Appendix EU in accordance with paragraph GEN.1.3.(d), under paragraph D-ECP.1.1., D-LTRP.1.1., or D-LTRP.1.2. of this Appendix, or as a partner of a refugee granted under Appendix Family Reunion (Protection), and any subsequent grant of limited leave must have been:
(a) granted as a partner (other than a fiancé(e) or proposed civil partner) of a British Citizen, a person present and settled in the UK, a person with refugee leave, or a person in the UK with limited leave under Appendix EU in accordance with paragraph GEN.1.3.(d), under paragraph D-ECP.1.1., D-LTRP.1.1. or D-LTRP.1.2. of this Appendix; or
(b) granted to enable access to public funds pending an application under DVILR and the preceding grant of leave was granted as a partner (other than a fiancé(e) or proposed civil partner) of a British Citizen, a person present and settled in the UK, a person with refugee leave, or a person in the UK with limited leave under Appendix EU in accordance with paragraph GEN.1.3.(d), under paragraph D-ECP.1.1., DLTRP.1.1. or D-LTRP.1.2. of this Appendix; or
(c) granted under paragraph D-DVILR.1.2.
E-DVILR.1.3. The applicant must provide evidence that during the last period of limited leave as a partner of a British Citizen, a person present and settled in the UK, a person with refugee leave, or a person in the UK with limited leave under Appendix EU in accordance with paragraph GEN.1.3.(d), under paragraph D-ECP.1.1., DLTRP.1.1 or D-LTRP.1.2 of this Appendix, or during their only period of permission under Appendix Family Reunion (Protection), the applicant’s relationship with their partner broke down permanently as a result of domestic abuse.
Since the introduction of this category, two exceptions to the principle have developed, widening the eligible categories:
- The applicant is a partner of a person with refugee status. (A v Secretary of State for the Home Department [2016]CSIH 38)
- The applicant is a partner of an EEA National granted pre-settled status following the implementation of the Withdrawal Agreement
Unfortunately, in the case of R (SWP) v Secretary of State for the Home Department [2022] EWHC 2067 (Admin), the Home Office denied her application, claiming that her husband’s status as a Tier 2 migrant excluded her from qualifying.
In the appeal, the Appellant argued that the unfair treatment of excluding some visa routes, whilst allowing others, was not objectively reasonable under Article 14 as read with Article 8. Unfortunately, the judge dismissed her appeal, noting that a Tier 2/Skilled Worker migrant might encounter issues with their sponsorship which would prohibit them from remaining in the UK. Such examples given included the sponsor being insolvent; they might lose their sponsorship; or get in trouble with the police and courts. The Court of Appeal therefore upheld the Home Office’s rationale behind the concession.
This case demonstrates how a rigid approach to immigration regulations can result in severe outcomes for vulnerable individuals, raising issues about the welfare of migrants who must deal with the stress and burden of court and litigation while living in uncertainty. Although challenging policy is vital in opposing those that are incompatible, the Home Office’s discretion is one which is difficult to defeat.
If you are a migrant in the UK and are experiencing or have just left your partner due to domestic violence and believe that you may be eligible to apply for indefinite leave to remain as a result, please get in touch with our experienced immigration team. Contact us today for more information at 0208 995 3556 or info@descartessolicitors.co.uk.
By : Jenny Comani