SWP, R (On the Application Of) v Secretary of State for the Home Department

Factual and Procedural Background

The Appellant, an Indian citizen, was the spouse of a migrant worker who came to the UK on a Tier 2 visa. The Appellant and their child joined the migrant worker in the UK and had leave to remain as dependants. The Appellant experienced domestic abuse from her spouse both in India and the UK. She left the matrimonial home in July 2021 with assistance from a Women's Help Centre and applied for temporary leave outside the Immigration Rules under the Destitute Domestic Violence Concession ("DDVC"). The Respondent refused this application on 6 August 2021 on the basis that the Appellant's spouse's immigration status did not fall within the categories specified in the DDVC and the related domestic violence indefinite leave to remain ("DVILR") scheme.

The Appellant sought judicial review of that refusal. The High Court dismissed the claim on 2 August 2022, concluding that the exclusion of the Appellant from the DDVC was objectively justified under Article 14 of the European Convention on Human Rights ("ECHR") read with Article 8. The Appellant appeals against that decision.

Legal Issues Presented

1. Whether the exclusion of the Appellant from the DDVC is objectively justified under Article 14 ECHR read with Article 8.
2. Whether the Appellant's immigration status is comparable to those eligible under the DDVC, particularly partners of persons with refugee leave or pre-settled status under the EU Settlement Scheme ("EUSS").
3. Whether the difference in treatment between partners of Tier 2 migrant workers and partners of EEA nationals with pre-settled status is discriminatory and, if so, whether it is justified.
4. Whether fresh evidence concerning the true immigration status of the Appellant's spouse should be admitted on appeal.

Arguments of the Parties

Appellant's Arguments

• The Appellant contended that the DDVC should apply to her as the partner of a Tier 2 migrant worker who is on a path to settlement, and that excluding her was discriminatory under Article 14 ECHR.
• She argued that once it is accepted that some persons with limited leave (such as partners of refugees or EEA nationals with pre-settled status) qualify under the DDVC, there is no proper basis to exclude partners of Tier 2 migrants similarly on a path to settlement.
• The Appellant challenged the justification for the difference in treatment, submitting that no margin of discretion should be afforded to the Secretary of State as the policy decision to introduce the DDVC had already been made and she fell squarely within its rationale.

Respondent's Arguments

• The Respondent maintained that the exclusion of the Appellant was objectively justified because the DDVC was intended only for partners of persons present and settled, refugees, or EEA nationals with pre-settled status, not for partners of Tier 2 migrant workers.
• It was submitted that the difference in treatment was based on a legitimate aim reflecting the unique circumstances of the UK's withdrawal from the EU and the specific immigration categories involved.
• The Respondent also argued that the Appellant was not in an analogous position to partners of EEA nationals with pre-settled status, and that the Judge was entitled to assume analogy for the purpose of addressing justification.
• Regarding the application to adduce fresh evidence about the Appellant's spouse's immigration status being Tier 2 (Intra-Company Transfer) rather than Tier 2 (General), the Respondent sought permission to admit this evidence, arguing it was in the interests of justice.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by acknowledging the undisputed engagement of Article 8 and Article 14 ECHR. It noted that the Appellant’s immigration status constituted "other status" under Article 14 but was not a suspect status. The court recognized that the key legal question was whether the difference in treatment between the Appellant and those eligible under the DDVC was objectively justified.

The court examined the rationale behind the DDVC, which is to protect victims of domestic abuse whose immigration status depends on their partner, allowing them a temporary bridge to settlement. It accepted that the policy was initially limited to partners of British citizens or settled persons, with exceptions for refugees and EEA nationals with pre-settled status introduced later for specific reasons.

The court rejected the Appellant's analogy to partners of refugees and British citizens, emphasizing the unique international legal obligations owed to refugees and the high rate of refugees progressing to indefinite leave to remain. The only realistic comparator was partners of EEA nationals with pre-settled status under the EUSS.

The court accepted, for the sake of argument, the analogy between the Appellant’s category and that of partners of EEA nationals with pre-settled status, in order to address justification. It held that the difference in treatment was objectively justified due to the unique circumstances of the UK’s withdrawal from the EU and the specific immigration policy considerations involved.

The court further distinguished previous cases involving direct discrimination on grounds of nationality, noting that immigration status is not a suspect ground and therefore attracts a wider margin of appreciation. It also rejected the argument that no margin of discretion should be afforded, holding that the policy decision to exclude certain categories from the DDVC was a general measure of social and economic strategy.

The court considered but found the decision in R (AM) v Secretary of State for the Home Department not analogous, as it concerned a different factual and policy context.

Regarding the Respondent’s application to admit fresh evidence that the Appellant’s spouse was a Tier 2 (Intra-Company Transfer) migrant rather than Tier 2 (General), the court refused admission. It found that the Appellant and her representatives had acted diligently given the limited evidence available and that the Respondent had failed in its duty of candour to provide accurate facts to the High Court. The court emphasized the importance of procedural rigour and fairness to all parties, including public authorities.

Holding and Implications

The court DISMISSED the appeal.

The direct effect of this decision is that the Appellant’s exclusion from the DDVC is upheld as objectively justified under Article 14 ECHR read with Article 8. The Appellant remains ineligible for the temporary leave and associated benefits under the DDVC. The court did not establish any new precedent beyond confirming the reasonableness of the government’s margin of appreciation in this immigration policy context. The refusal to admit fresh evidence reinforces the procedural expectations on public authorities to provide accurate factual information in judicial review proceedings.