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

Immigration Rules are construed objectively, according to their natural and ordinary meaning as statements of administrative policy. The rule-maker’s subjective intention is irrelevant. Extraneous material cannot be used to construe ambiguous rules more harshly or in the Government’s favour.

Under Appendix FM, paragraph E-DVILR.1.2(b) does not create a general discretion to grant public funds or indefinite leave to remain to a domestic-violence victim whose partner was neither a British citizen nor settled in the United Kingdom. Eligibility under that paragraph depends on the applicant being capable of making a successful DVILR application. The reference to a partner in E-DVILR.1.3 carries the restricted meaning in E-DVILR.1.2(a).

The claimant entered the United Kingdom as the spouse of a refugee who then held limited leave. After suffering domestic and sexual violence, she applied under the Destitute Domestic Violence Concession. The Secretary of State refused, because she had not entered as the partner of a British citizen or a person settled in the United Kingdom.

By the time of the judicial review, the claimant had received leave outside the Immigration Rules with access to public funds. The central issue was whether Appendix FM, sections DVILR and E-DVILR, conferred a general discretion to enable a person in her position to access public funds pending an application for indefinite leave to remain as a victim of domestic violence.

1. Interpretation of the Immigration Rules. The court applied the objective approach described in Pokhryal v Secretary of State for the Home Department [2013] EWCA Civ 1568 and Mahad v Entry Clearance Officer [2009] UKSC 16; [2010] 1 WLR 48. The Rules are read sensibly according to the natural and ordinary meaning of their words. They are statements of administrative policy and need not be construed with the strictness applicable to legislation.
2. The court could consider evidence about the policy’s introduction and operation, including the Sojourner Project and DDV Concession. It could not consider evidence of the Secretary of State’s subjective intention. Consistently with R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33; [2012] 1 WLR 2208, rules could be toughened only by formal amendment and parliamentary laying.
3. Construction of E-DVILR.1.2(b). Although E-DVILR.1.2(a), (b) and (c) are disjunctive, paragraph (b) cannot operate as a general discretion to grant public funds to applicants who could never qualify for DVILR. The applicant must be capable of making a successful application under DVILR, including satisfying DVILR.1.1(d) and all relevant E-DVILR requirements.
4. Meaning of partner. In E-DVILR.1.3, “partner” means a partner within the restricted category specified in E-DVILR.1.2(a), namely the partner of a British citizen or a person settled in the United Kingdom. The general definition in Appendix FM GEN 1.2 does not displace that context-specific meaning. This construction avoids circularity and is consistent with the policy’s distinction between settled and unsettled sponsors.
5. The construction does not make E-DVILR.1.2(a) and (b) cumulative in every case. Some applicants within (a) will not need public funds. However, applicants relying on (b) must necessarily satisfy (a) because of E-DVILR.1.3. The judicial review claim was dismissed, and the refusal was not quashed.

The judgment was a first-instance judicial review decision. The claimant’s application for judicial review of the Secretary of State’s refusal was dismissed.