Ugandan domestic abuse victim wins appeal for ‘indefinite leave to remain’



Lady Dorrian
Lady Dorrian

A Ugandan woman who came to the UK to join her husband after he was granted refugee status has successfully challenged a decision by the Home Secretary to refuse her application for “indefinite leave to remain” as a victim of domestic abuse.

The woman, who lives in Glasgow, applied for ILR after splitting up with her abusive husband, but her application was refusedon the basis she was “not the spouse of a British citizen or an individual settled in the UK”.

However, judges in the Inner House of the Court of Session allowed the woman’s appeal after ruling that the decision was “unjustifiable”.

Lady Paton, Lady Dorrian and Lord Drummond Young heard that the petitioner’s husband, also a Ugandan national, was granted refugee status in the UK in 2009 on the grounds of fear of persecution for reasons of political opinion, and granted five years leave to remain until 30 June 2014.

The petitioner “A” then applied to join him and the family were reunited in Glasgow in late 2010 after a “family reunion visa” was granted for the petitioner and her three youngest children, with leave to remain until 30 June 2014.

However, the couple separated in November 2011 following an assault on the petitioner by her husband, which had been the culmination of a series of verbal and physical abuse.

The petitioner remained in Glasgow, where her three children are in full-time education, at school or university, and having had a claim for asylum and humanitarian protection refused the petitioner applied for ILR as a victim of domestic abuse.

But the application was refused on 17 February 2014, although the petitioner and her children were granted discretionary leave to remain until 16 February 2017 on the basis of their “private and family life”.

In her petition for judicial review, the petitioner sought reduction of the decision of 17 February 2014 and declarator that the relevant section of the Immigration Rules was ultra vires of the Secretary of State for the Home Department, in that in excluding from its scope spouses or former spouses of refugees, it “unlawfully discriminated” directly against such spouses, in violation of articles 14 and 8 of the European Convention on Human Rights (ECHR).

The rule was also “indirectly discriminatory”, it was alleged, against women who were the spouses or former spouses of refugees, on the basis that women were more likely to be the victims of domestic violence.

In terms of the Immigration Rules, a spouse or partner of someone who has been granted refugee status in the UK may apply for leave to enter or remain in the UK as a partner, under the family reunion scheme or under separate rules which provide for a grant of limited or indefinite leave to remain.

Generally, for a grant of ILR as a partner the relationship must still be subsisting, but specific provision is made for the grant of ILR to victims of domestic violence, notwithstanding that they had separated from their spouse.

The provisions have since been amended but at the time of the decision essential eligibility requirements, so far as relevant to the current proceedings, were that the last grant of limited leave must have been as a partner of a British Citizen or a person settled in the UK, and that the relationship broke down permanently as a result of domestic violence.

The Lord Ordinary refused the petition after ruling that while non-national spouses of persons with refugee leave are treated “less favourably” than the spouses of British citizens and persons with settled status under the relevant provisions, 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”.

The position of the respondents was that the Lord Ordinary had been entitled to decide as he did, on the basis that any discrimination, which was not admitted, was “reasonably justified”.

But on behalf of the reclaimer it was submitted that underlying the domestic violence provision was the intention that a person within those provisions who had come to the UK as a spouse and been subjected to domestic violence “should not feel compelled to remain in an abusive relationship for the sake only of qualifying for indefinite leave”.

The justification advanced for the difference in treatment, concerning the reasonableness of the spouse of a British Citizen or person settled in the UK to expect to have a permanent home in UK, was one which would apply equally to the spouse of a refugee and the position of the spouses of refugees had been “wrongly” contrasted with that of the spouses of those who had come to work/study in the UK and who thereby should have no such expectation, it was argued.

Delivering the opinion of the court, Lady Dorrian said: “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.”

She added: “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.  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.

“For the reasons given, 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.  We accordingly allow the reclaiming motion and reduce the decision of the Secretary of State dated 17 September 2014 to refuse the petitioner’s application for ILR.”

The judges decided not to grant the declarator sought, on the view that it was not necessary in this case.

© Scottish Legal News Ltd 2019



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