Yesid Alonso Guzman Barrios v Secretary of State for the Home Department

A person granted discretionary leave to remain outside the Immigration Rules cannot claim indefinite leave to remain by analogy with the domestic-violence provisions applicable to spouses granted leave under those Rules.

The difference in treatment does not, without more, amount to discrimination under Article 14 of the Convention. An illegal entrant granted discretionary leave does not possess a relevant “other status”, and is not appropriately compared with a spouse admitted under the Rules. Domestic violence remains relevant to proportionality under Article 8, but it is not determinative.

The appellant, a Colombian citizen, entered the United Kingdom unlawfully and was later granted three years’ discretionary leave following his marriage to a woman settled here. When the marriage permanently broke down through domestic violence, he sought indefinite leave to remain under the domestic-violence route.

The First-tier Tribunal found that domestic violence had caused the breakdown, but rejected the contention that refusal of indefinite leave was discriminatory under Articles 8 and 14 of the Convention. It also found removal proportionate. The appellant appealed to the Upper Tribunal, contending that he should receive treatment equivalent to a spouse granted leave under the Immigration Rules.

1. Appeal dismissed. The First-tier Tribunal made no error of law in rejecting the claim to indefinite leave to remain.
2. The domestic-violence rule applies only to a person admitted for up to 27 months, or granted a two-year extension, as the spouse or civil partner of a person present and settled in the United Kingdom. It does not extend by analogy to a person granted discretionary leave outside the Immigration Rules.
3. The distinction did not amount to unlawful discrimination under Article 14. Immigration control lawfully differentiates between those who meet the conditions of the Rules and those who do not. The appellant’s position as an illegal entrant later granted discretionary leave was not an “other status”, and a spouse with leave under paragraph 284 was not an appropriate comparator.
4. Domestic violence may materially inform the proportionality assessment in an Article 8 appeal. It must be weighed with all other private-life considerations. It does not, however, compel an appeal to be allowed outside the domestic-violence provisions of the Rules.
5. The Tribunal also observed that the First-tier Tribunal had correctly treated the appellant’s timely initial application as valid despite use of the wrong form, consistently with JH (Zimbabwe) [2009] EWCA Civ 78.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal and held that the First-tier Tribunal had made no error of law.
• First-tier Tribunal: found that domestic violence had permanently caused the marital breakdown, but dismissed the appeal on the bases that there was no unlawful discrimination under Articles 8 and 14 and that removal was proportionate.