Amin, R (on the application of) v Secretary of State for the Home Department

Eligibility under the domestic-violence settlement rule must be assessed by construing the rule as a whole and having regard to its protective purpose. The requirement that an applicant “was admitted” as a spouse is directed to the relevant original admission, rather than necessarily the latest admission. Departure from the United Kingdom, including involuntary departure, does not automatically destroy eligibility. Temporary admission and the suspension of existing leave may be immaterial to that factual question. Eligibility under paragraph 289A and the discretionary decision under paragraph 289B are distinct stages. The Secretary of State must exercise the latter discretion under the rule’s policy, taking account of whether departure was voluntary and connected with the abusive relationship.

The claimant, who had entered the United Kingdom as the spouse of a British citizen, returned to Pakistan after alleging serious domestic violence and then re-entered the United Kingdom using her spousal visa. On re-entry, her leave was suspended and she was given temporary admission pending further questioning.

She applied for indefinite leave to remain as a victim of domestic violence under paragraphs 289A–289C of the Immigration Rules. The Secretary of State treated the application as invalid because the claimant had not been admitted on her latest arrival with qualifying leave. The central issues were the meaning of “was admitted” and the effect of temporary admission and suspended leave.

1. Construction of paragraph 289A. The rule had to be construed as a whole, against the policy identified in Odelola v SSHD [2009] 1 WLR 1230. Its purpose was to ensure that a person on a direct route to settlement did not have to remain in an abusive relationship to obtain indefinite leave to remain. The words “was admitted” referred to the claimant’s original admission on the relevant spousal basis, not necessarily her most recent admission.
2. Leaving the United Kingdom did not, by itself, deprive a victim of domestic violence of the benefit of the rule. The consequences of voluntary departure, involuntary removal, a sham relationship, or subsequent resettlement were matters for the discretion under paragraph 289B. The policy underlying the rule was supported by AL [2007] EWCA Civ 386.
3. The suspension of the claimant’s leave and her temporary admission did not alter the result. Although Immigration Act 1971, section 11 meant that temporary admission did not amount to leave to enter, the application depended on the historical factual requirement in paragraph 289A. The claimant’s status when the application was made was immaterial. This was consistent with JL (Domestic Violence: Evidence and Procedure) India [2006] UKIT 00058.
4. The discretion considered under paragraph 289B was distinct from discretionary leave outside the Immigration Rules. The Secretary of State had therefore applied the wrong legal framework. The decision was quashed. Costs were ordered to be assessed, subject to production of the legal aid certificate. Permission to appeal was refused, but an extension was granted for any application to the Court of Appeal until 14 days after receipt of the transcript.

First-instance judicial review decision. The judgment does not state any earlier appellate decision.