Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 62

P1025/14

OPINION OF LORD PHILIP

In the petition of

“A” (AP) F.E.

Petitioner;

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent:

Petitioner:  Irvine;  Drummond Miller LLP

Respondent:  Webster;  Office of the Advocate General

29 May 2015

[1]        In this petition for judicial review the petitioner seeks reduction of a decision of the Secretary of State for the Home Department dated 17 February 2014 refusing her indefinite leave to remain (“ILR”) in the United Kingdom.  She also seeks declarator that paragraph (a) of section E-DVILR.1.2. of Appendix FM of the Immigration Rules is ultra vires of the respondent, on the ground that it excludes from its scope spouses and former spouses of refugees, and so contravenes article 14 of the European Convention on Human Rights.

[2]        The petitioner and her husband are nationals of Uganda.  The petitioner’s husband is a former soldier and active member of the Uganda opposition party, the Forum for Democratic Change (“FDC”).  The petitioner and he have five children together.  In February 2008 he was abducted from the family home in Uganda by a group of men believed to be acting for the Uganda Government.  The petitioner and her children were assaulted during the raid.  After the abduction, the petitioner believed her husband to be dead, and she was obliged to leave the family home in order to remain safe.  Subsequently, he contacted her from an unknown location and told her he was safe. 

[3]        On 1 July 2009 the petitioner’s husband was granted refugee status in the United Kingdom on grounds of fear of persecution for reasons of political opinion, and was granted five years leave to remain until 30 June 2014.  As at 30 May 2014 he was eligible to apply for ILR.  The petitioner is unaware of his current immigration status, but believes him to have applied for ILR and to have had his application granted.

[4]        The petitioner’s husband had been granted leave to remain in the United Kingdom as a refugee, the petitioner applied for a visa for herself and for four of her children in order to join him.  She did not have sufficient funds to apply for a visa for her oldest daughter.  On 22 July 2010 she was granted a multi‑family reunion visa for herself and her three youngest children.  The application for her eldest son was refused.  A family reunion visa issued to the pre‑existing family of refugees and those subject to humanitarian protection grants limited leave to the relevant members of the refugee’s family for a period and of a type equivalent to that granted to the refugee himself.  Accordingly the petitioner’s family reunion visa granted her limited leave to remain until 30 June 2014.

[5]        On 20 September 2010 the petitioner entered the United Kingdom with one of her children and was reunited with her husband in Glasgow where he had been staying, and where he had already formed another relationship.  The remaining two children joined the petitioner in Glasgow about a month later.  After the family were reunited in Glasgow, her husband began to abuse the petitioner verbally and physically.  In or about March 2011 the petitioner contacted a domestic abuse project for help.  In October 2011 her husband began talking about moving the woman he had been seeing into the family home.  The petitioner refused to accept that proposal and on 6 October 2011, following an altercation, her husband attacked the petitioner and attempted to strangle her.  The police were called and her husband was arrested.  He was subsequently charged and convicted of assault and admonished.

[6]        The petitioner separated from her husband on the date of the assault.  She moved house but remained in Glasgow.  Her three children are all in full‑time education there.  Her youngest son is in his first year at secondary school.  Her elder son is studying chemical engineering at university and her younger daughter is also at university, studying accounting.  Her daughter is currently in a relationship and is four months pregnant.  The father of the unborn child is a British citizen.  The petitioner herself has enrolled in college in Glasgow to study English.  She avers that since moving to Glasgow she has made a number of close friends, some of them through the domestic violence project which supported her during her husband’s abuse.  Her friends have provided her with help and support since she disclosed her husband’s violence to them in March 2011.

[7]        On 21 November 2011 the petitioner claimed asylum on the basis of, (i)  imputed political opinion as a result of her husband’s involvement with FDC, and (ii)  the threat to her life from her husband’s family in Uganda as a result of her having separated from him.  On 26 April 2012 her asylum claim was refused.  On the same date she and her three children were granted three years discretionary leave to remain in the United Kingdom.  In the decision letter the Secretary of State accepted that the pursuer was a victim of domestic violence.

[8]        On 20 January 2014 the petitioner with her children as dependents submitted an application for ILR under section DVILR of Appendix FM of the Immigration Rules.  On 17 February 2014 that application was refused.  At the same time she and her children were granted a further three years discretionary leave to remain on the basis of their private and family life in the United Kingdom.  That leave terminates on 17 February 2017.  By virtue of this discretionary grant of leave, the decision of 17 February 2014 to refuse the petitioner indefinite leave to remain is not capable of appeal.  On 22 April 2014 the petitioner’s agents wrote to the Secretary of State pursuant to practice direction no 1 of 2012, indicating that if the decision was not revisited in the petitioner’s favour they would instruct proceedings for judicial review.  By letter dated 13 May 2014 the Secretary of State maintained her decision of 17 February 2014.

[9]        The decision under review was made by the Secretary of State under the provisions of Appendix FM to the Immigration Rules.  Section GEN.1.1 of the Appendix explains that purpose of its provisions is to create a route to settled status for non‑nationals seeking to enter or remain in the UK on the basis of their family life with a person who is a British Citizen, is settled in the UK, or is in the UK with limited leave as a refugee, or a person granted humanitarian protection.  It sets out the requirements to be met and, in relation to the consideration of applications under this route, it reflects how, under article 8 of the Human Rights Convention, the balance is to be struck between the right to respect for private and family life and the legitimate aims of protecting national security, public safety, the economic well-being of the UK, the prevention of disorder and crime, the protection of health and morals, and the protection of the rights and freedoms of others.  It also takes into account the need to safeguard and promote the welfare of children in the UK, in line with the Secretary of State’s duty under section 55 of the Borders, Citizenship and Immigration Act 2009.

[10]      “Partner” is defined for the purposes of Appendix FM in section GEN.1.2 as the applicant’s spouse, fiancée, proposed civil partner, or a person who has been living together with the applicant in a relationship akin to marriage or civil partnership for at least two years prior to the application.  In terms of section E-LTRP.1.2 of the Appendix, the applicant’s partner must be either (a)  a British citizen, (b)  present and settled in the UK, or (importantly, in the context of this petition), (c)  in the UK with refugee leave or with humanitarian protection.  In terms of section E-LTRP.1.7, the relationship between the applicant and her partner must be genuine and subsisting.  Accordingly, the route to limited leave to remain and to ILR under Appendix FM is open to the spouse of a person with refugee leave, provided that the relationship is subsisting and the other requirements of the section have been met.

[11]      In 1999 the Government introduced a concession for victims of domestic violence, (“DVC”) enabling them to apply for ILR before the full probationary period of limited leave had been completed.  The DVC was later incorporated into the body of the Immigration Rules in part 8.  It now forms part of Appendix FM in section DVILR, which sets out the relevant requirements to be met by an applicant for ILR who claims that she is a victim of domestic violence.  In terms of section E-DVILR.1.2, eligibility to apply for ILR as a victim of domestic violence is confined to the partners of a British citizen, or of persons settled in the UK.  Partners of persons in the UK with limited refugee leave, like the petitioner, are excluded from its provisions.

Submissions
[12]      For the petitioner Miss Irvine argued that the provisions relating to eligibility for ILR as a victim of domestic violence were discriminatory in respect that they excluded partners of persons in the UK with refugee leave.  She further argued that the provisions of E-DVILR were ultra vires of the Secretary of State in respect that they were in breach of article 14 of the European Convention on Human Rights in relation to the petitioner’s rights under article 8.  The petitioner was discriminated against directly, on the ground that she was a partner of a person with only refugee leave, and also indirectly, on the grounds of sex, because women in general, and migrant woman in particular, were disproportionately represented among victims of domestic violence.

[13]      Miss Irvine argued that the rights of the petitioner affected by the Secretary of State’s decision fell within the ambit of article 8.  The Secretary of State had gone beyond the requirements of that article in accepting non‑national spouses for settlement, and had gone even further in accepting such spouses for settlement even after the whole basis of their stay in the United Kingdom, namely the subsisting nature of their spouse or relationship, had been removed.  The petitioner’s claim was thus within the ambit of article 8.  In any event the refusal of ILR in the circumstances of this case also fell within the ambit of article 8 on the basis of the impact on the petitioner’s present private and family life in the United Kingdom.  Private life, protected by article 8, extended beyond personal relationships to the physical and moral or psychological integrity of the person.  Domestic violence offended against that integrity so the Secretary of State had failed to make DVC open to a particularly vulnerable class of migrant women when they were otherwise accepted as being entitled to apply for settlement here.

[14]      Miss Irvine submitted that refugees were not ordinary immigrants.  The 1951 Refugee Convention required Contracting States to facilitate as far as possible their ultimate assimilation and naturalisation.  Family unity was recognised as an essential right of the refugee and states were encouraged to:

“take the necessary measures for the protection of the refugee’s family, especially with a view to ensuring that the unity of the refugee’s family is maintained particularly in cases where the head of the family has fulfilled the necessary conditions for admission to a particular country.”

A refugee enjoyed an expedited route to settlement.  He might only be lawfully removed in limited circumstances.  In practice indefinite leave was nearly always granted.  Article 34 of the 1951 Convention made it clear that the rights a refugee enjoyed were intended to be permanent.  When the petitioner escaped to the UK she did so in the reasonable expectation that her life and those of her children would continue in this country.  That expectation had been strengthened during her stay.  The Secretary of State had recognised that the fact she had made allegations of domestic violence against her husband placed her as an added risk on the basis of her “adverse interest” to her husband’s family.  It could not be correct law, policy or fact to regard a refugee or his spouse as having no expectation of permanent residence.

[15]      For the respondent, Mr Webster explained the policy behind the provisions of Appendix FM which differentiated between the treatment of victims of domestic violence whose spouses were British citizens or persons settled in the UK, and the treatment of those whose spouses were in the UK with refugee leave only.  The rationale was that the former knew that their partner had a right to live permanently in the United Kingdom, and could expect to have their permanent home here, and might have cut their ties with their country of origin.  On the other hand, those who had come to the United Kingdom as the partner of a refugee without settled status could not and should not have any expectation that the family would be making its permanent life here, but would understand that they might well be required to leave the United Kingdom with their partner at the end of his or her leave.

[16]      Mr Webster submitted that article 8 rights were not engaged in the assessment of the treatment of the petitioner as a victim of domestic violence.  Her family life with her former partner had ceased.  She might have family rights with other family members and private rights of her own but they were not lost as a result of the cessation of family life with her partner.  They were independent of the family rights which were said to be affected in a discriminatory fashion.  In any event, there was no one who was in an analogous situation to the petitioner with whose circumstances a comparison could be made in order to demonstrate a difference in treatment.  There was no valid comparison between the petitioner and a refugee spouse in a subsisting relationship.  The foundation of such a person’s leave to remain was the existence of a genuine and subsisting relationship.  The foundation of the petitioner’s claim for indefinite leave to remain as a victim of domestic violence was the permanent breakdown of her relationship.  Nor was there any valid comparison with other victims of domestic violence.

[17]      Even if there were individuals with whose circumstances comparisons could validly be made, the differentiation had a legitimate aim and was justified and proportionate.  Article 8 did not afford those in relationships the right to choose where to live, nor did it oblige a state to grant the partners of refugees a right to remain.  The state’s policy choice should be respected unless it was manifestly without reasonable foundation.  A wide margin of appreciation must be allowed.  If a measure had been approved by Parliament, as the Immigration Rules had been, the court should be even slower to hold such a measure unlawful.  There was a need for legal certainty and a workable rule.

Decision
[18]      Article 14 prohibits discrimination on grounds of status against any individual in relation to his enjoyment of his rights under the European Convention on Human Rights.  The petitioner’s status as a spouse of a refugee with limited leave to remain in the UK in my view renders her a potential beneficiary of the provisions of article 14 if she is treated differently by the State from those in otherwise similar situations.  Before article 14 can take effect, the facts at issue must fall within the ambit of one or more of the rights and freedoms safeguarded by the other articles of the Convention, see AL (Serbia) v Home Secretary [2008] UK HL 42 at paragraphs 20 to 28.  In this context, article 14 has been held to cover not only the enjoyment of the rights that States are obliged to safeguard under the Convention, but also those rights and freedoms that a State has chosen to guarantee, even if in doing so it went beyond the requirements of the Convention, see Zarb Adami v Malta (2007 ) 44 EHRR 3 at paragraph 0 - 17.

[19]      The State has allowed the petitioner to come to the United Kingdom with her children as the partner of a refugee.  She has lived here for over four years.  Her children have established themselves in the education system and she has developed a supportive group of friends in Glasgow.  While her family life with her husband has come to an end, I consider that in the most general sense her family and private life is potentially affected by the Secretary of State’s decision, and in these circumstances I consider that the facts of this case can be said to fall within the ambit of article 8.

[20]      Some time was spent in argument on the identification of persons whose circumstances might be regarded as analogous to the petitioner’s in order to compare the way in which they were treated by the Rules with the way in which the petitioner had been treated under Appendix FM.  On this topic, in AL (Serbia), Baroness Hale said at paragraph 28:

“The classic Strasbourg statements of the law do not place any emphasis on the identification of an exact comparator.  They ask whether ‘differences in otherwise similar situations justify a different treatment’.” 

She went on at paragraph 28 to describe the exercise of identifying the precise characteristics of persons with whom a claimant should be compared as an arid exercise.  In R (Carson) v Work and Pensions Secretary [2006] 1 AC 173, at paragraph 3, Lord Nicholls said:

“For my part… I prefer to keep formulation of the relevant issues in these cases as simple and non‑technical as possible.  Article 14 does not apply unless the alleged discrimination is in connection with a Convention right and on a ground stated in article 14.  If this pre‑requisite is satisfied, the essential question for the court is whether the alleged discrimination, that is, the difference in treatment of which complaint is made, can withstand scrutiny.  Sometimes the answer to this question will be plain.  There may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous.  Sometimes, where the position is not so clear, a different approach is called for.  Then the court’s scrutiny may best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact.”

I am content to follow these dicta, but nevertheless would have felt able to say that the treatment of the petitioner under Appendix FM might reasonably be compared with the treatment of victims of domestic violence whose partners are British citizens or persons settled in the UK.

[21]      I turn now to consider what is in my view the essential question in this case, that is whether, if the treatment of the petitioner is discriminatory, it has an objective and reasonable justification.  Does it pursue a legitimate aim and is there a reasonable relationship of proportionality between the means employed by the policy behind Appendix FM and the aims sought to be realised?

[22]      The question has to be considered in the light of the established principles.  The European Court of Human Rights Grand Chamber in Stec v the United Kingdom (2006) 43 EHRR 1017 made it clear that a Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justified different treatment.  This was based on the view that States had direct knowledge of their society and its needs and so were better placed than judges to decide what was in the public interest in relation to economic and social strategy.  Unless the policy is manifestly without reasonable foundation the courts will generally respect it.  In the present case, there is the additional factor that the Immigration Rules were debated in and approved by Parliament.  As the Master of Rolls said in R (MA) v The Secretary of State for Work and Pensions (2014) EWCA Civ 13, respect for Parliament’s constitutional function calls for considerable caution before the courts will hold any such measure unlawful.

[23]      A Contracting State is entitled to regulate immigration with a view to preserving the economic and social well‑being of the country and maintaining a good order.  It is entitled to decide who may be admitted and who may not, and who may remain and who may not.  The Secretary of State has decided on a policy whereby the non‑national spouses of British citizens and persons settled in the United Kingdom may be granted ILR if they have been the victims of domestic violence.  The reasoning is that because of the husband’s status prior to separation, the spouse has an expectation that she will be allowed to remain in the United Kingdom indefinitely.  That expectation is not to be taken away from the spouse because she had been the victim of domestic violence.  On the other hand, spouses of refugees with limited leave to remain should have no such expectation, as their leave to remain is precarious and may be brought to an end, for example, by a cancellation, cessation or ratification of the refugee status.  As Mr Webster said, the concession preserved an existing eligibility for the spouse of the settled person, it did not create a new right.

[24]      In Rodrigues de Silva, Hoogkamer v the Netherlands the European Court of Human Rights said at paragraph 39:

”Another important consideration will also be whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host State would from the outset be precarious.  The Court has previously held that where this is the case it is likely only to be in the most exceptional circumstances that the removal of the non-national family member will constitute a violation of article 8”

In the light of the judicial opinions I have cited, the petitioner faces an uphill task in challenging the Secretary of State’s decision in this case.  While there is no doubt that under section E‑DVILR.1.2 non‑national spouses of persons with refugee leave are treated less favourably than the spouses of British citizens and persons with settled status, the State is entitled to pursue the aim of regulating immigration for the maintenance of economic and social order, and to determine where the line should be drawn.  I am unable to hold that drawing the line where it is drawn by section E‑DVILR is without objective or reasonable justification.  A policy which grants a concession to those who already have a right to but denies it those who do not have that right is comprehensible and cannot be said to be irrational.  In the light of the opinion in Rodrigues de Silva I cannot say that the provisions of the section are disproportionate.  I conclude therefore that there is no room for the intervention of the court on the very limited basis available to it.  I must therefore refuse the petition.

[25]      I should add that had my decision been in favour of the petitioner, I would have confined myself to reducing the decision of the Secretary of State of 17 February 2014.  I would not have been prepared to grant decree of declarator that paragraph (a) of section E‑DVILR.1.2 of Appendix FM is ultra vires.  Suffice it to say that provision is no longer in force and so decree of declarator would be of no effect.