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A v Secretary of State for the Home Department [2016] CSIH 38

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A v Secretary of State for the Home Department [2016] CSIH 38

21 June 2016

The petitioner and reclaimer was a Uganda national who had come to the United Kingdom in 2010 to join her husband, also a Ugandan national and who had been granted refugee status here. The couple separated in 2011 as a result of the husband’s domestic violence. The petitioner initially clai med asylum but her claim was refused and she was instead granted discretionary leave to remain in the United Kingdom. In the decision letter refusing the claim the Home Office accepted that the petitioner had been the victim of domestic violence and also that she would be of adverse interest to her husband’s family as a result of the allegations if she were required to return. In 2014, the petitioner submitted an application for leave to remain as a victim of domestic violence under the so-called ‘domestic violence concession’ (DVC) in Appendix FM of the Immigration Rules. The application was refused on the basis that she failed to meet the eligibility requirements, not being the spouse of a British citizen or an individual settled in the United Kingdom. The petitioner raised proceedings for judicial review seeking reduction of that decision and declarator that the rule under which the application had been refused (Section E-DVILR.1.2. of Appendix FM) was ultra vires the Secretary of State as being incompatible with her rights under Article 14 when read with Article 8 of the European Convention on Human Rights.

The petition was refused by the Lord Ordinary (Lord Philip) at first instance ([2015] CSOH 62, reported at [2015] SLT 407) on the basis that the discrimination which he accepted as having been made out was justified. The petitioner reclaimed. The grounds of appeal were, inter alia, that the Lord Ordinary had erred as to the test for justification under Article 14 of the Convention by adopting a rationality standard of review and applying the high threshold “manifestly without reasonable foundation” test to both stages of the justification analysis (proportionality instead being a question of law for the court); and had also erred as to the status of the refugee both in law and in fact. It was further argued that there was no rational connection as between the DVC and the stated aim of the measure as contained in the affidavit on which reliance was being placed by the Secretary of State. The Advocate General for Scotland on behalf of the Secretary of State argued in response that, inter alia, the “manifestly without reasonable foundation” applied to both stages of the justification analysis in light of the respect which required to be given to the policy choices made by government; and, under particular reference to the affidavit, that neither a refugee nor the spouse of a refugee could have any reasonable expectation that their future would lie in the United Kingdom, the Immigration Rules distinguishing between those joining partners who had a right to live permanently in the UK, and partners who had no such right, with those in the former category potentially having loosened or severed ties with their country of origin in the expectation of living permanently in the United Kingdom, a consideration which did not apply to those in the latter category (including refugees) who could have no such expectation, and who would be aware that they might have to leave.

The Inner House in rejecting the latter argument stated as follows:

“[66] The aim of the measure in question is said to be that the spouses of those settled in the UK should be treated differently from the spouses of those without that status. The rationale for doing so is that the former are likely to have a reasonable expectation of settlement in the UK, and thus to have cut or loosened their ties with their country of origin in that expectation, whereas the spouses of the latter could have no such expectation, and would be less likely to cut or loosen those ties. In asserting that rationale, the respondent equiparates the position of refugees with those granted work or study leave. We do not accept, as a matter of fact, that this is a sound equiparation. A person admitted to the country as a student or for work is very clearly someone admitted on a limited and temporary basis, entirely at the discretion of the state. The status of refugee, as has been pointed out, 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. The worker or student enters the country by choice; the refugee out of necessity. The circumstances in which refugee status may be lost are extremely limited, and can in no reasonable way be compared to the situation applying to a worker or student. 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. Accordingly, whilst we accept that it is not reasonable for the spouses of students or workers to have any reasonable expectation of having their future and a permanent home in the UK, and that such spouses are less likely to cut or loosen their ties with their country of origin than the spouses of British Citizens or persons with settled status, we cannot accept that this applies equally to the spouses of refugees.  One can readily see that the spouse of a worker or student can have no reasonable expectation of having their future life or a permanent home in the UK, and that they would not be expected to cut or loosen their ties with their country of origin. The same cannot be said of the spouse of a refugee.  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.”

The court thereafter referred, inter alia, to statistical information which showed that 95% of settlement applications submitted by refugees were granted; and to the fact that although refugee status may be lost, or a refugee expelled, the grounds upon which either might occur are significantly limited, not simply as a matter of domestic law, but as a matter of international law under the Refugee Convention. The court continued: “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 … 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 UK, we consider that he misdirected himself."

Having accepted that the Lord Ordinary was in error in that regard, a key factor in the court’s decision to thereafter reject the Secretary of State’s argument as to justification was the fact that the exclusion of the spouses of refugees from the DVC appeared to have been an oversight, the court referring in this regard to the change in policy regarding the duration of the initial grant of refugee leave which took place in 2005 (previously the grant had been indefinite leave to remain on an individual being recognised as a refugee; in 2005 that changed to an initial grant of 5 years limited leave to remain, with the possibility for an application for settlement / indefinite leave to remain thereafter):

“[80] This is not in our view a case in which a policy choice on the critical question has in fact been made, with due consideration of the issues, looked at in the light of the government’s policy both in relation to refugees and domestic violence. In the absence of any such choice or consideration, or any reasonable basis upon which a refugee could be equiparated to a worker/student, or the reasonable expectations of their spouses being as limited as those of the spouses of students/workers, and having regard to the effect on the spouses of refugees, as well as the underlying aim of the domestic violence concession, we cannot say that the difference in treatment is proportionate. The position of those such as the reclaimer has simply not been brought into consideration. The effect on them is not an informed choice made by government upon due consideration, but appears to be an unintended by product of the changes introduced in 2005 [a reference . We do not require to examine in depth the issue of the standard of review, because we are satisfied, even on the application of the higher test of whether the justification is manifestly without foundation, that the justification must be found wanting … even allowing full weight to the element of discretion to be accorded to the executive, we consider that this is a case in which the line has been drawn effectively by oversight, and where the justification advanced is weak to the extent of being unjustifiable.” The reclaiming motion was accordingly allowed and the decision of the Secretary of State reduced, although the court declined to grant the declarator sought on the basis that it was not 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.

Lesley Irvine of Axiom Advocates acted as junior counsel for the petitioner and reclaimer. The now Lord Advocate, James Wolffe QC, formerly of Axiom Advocates, acted as her senior.