T, R (On the Application Of) v Secretary of State for the Home Department

When deciding an application under the Destitute Domestic Violence Concession, the Secretary of State must assess whether, on the circumstances existing at the application date, the applicant appears able to satisfy the requirements for indefinite leave to remain under the Immigration Rules. Relief may be refused where the applicant clearly cannot do so.

A concessionary grant cannot itself be used to create the eligibility on which entitlement to that grant depends. In the domestic-violence provisions, the general definition of “partner” yields to the statutory context. The reference to a partner in E-DVILR 1.3 means the partner of a British citizen or person settled in the United Kingdom, consistently with E-DVILR 1.2(a).

T, the post-flight spouse of a refugee with limited leave, entered the United Kingdom before her husband obtained indefinite leave to remain. After suffering domestic and sexual violence, she applied for temporary leave under the Destitute Domestic Violence Concession. The Secretary of State refused because T had not been admitted as the partner of a British citizen or person settled in the United Kingdom.

Dingemans J dismissed T’s claim for judicial review in [2014] EWHC 2453 (Admin). The appeal concerned the interpretation of DVILR 1.1 and E-DVILR 1.2 and 1.3 of Appendix FM to the Immigration Rules. The central issue was whether T could qualify for indefinite leave to remain and therefore for temporary relief under the concession.

1. The appeal was dismissed unanimously. Moore-Bick LJ gave the judgment, with which Longmore LJ and Macur LJ agreed.

2. When considering an application under the Destitute Domestic Violence Concession, the Secretary of State must ask whether, on the circumstances existing at the date of application, the applicant would on the face of it be able to meet the requirements of DVILR. If the applicant clearly could not meet them, the Secretary of State was entitled to refuse temporary relief. This involved applying the terms of the Immigration Rules, rather than construing them by reference to the concession.

3. T could not satisfy E-DVILR 1.2(b). Her last grant of limited leave had been as the partner of a refugee who then possessed only limited leave. It had not been granted to enable access to public funds pending an application under DVILR. The contention that granting temporary relief would bring her within E-DVILR 1.2(b) was circular: the proposed grant could not create the essential eligibility condition for that same relief.

4. T also could not satisfy E-DVILR 1.3. Although GEN 1.2(iv) contained a general definition of “partner”, the context indicated a narrower meaning. E-DVILR 1.2(a), the only other reference to a partner in that section, concerned a person whose last limited leave was as the partner of a British citizen or person settled in the United Kingdom. That reference set the context for E-DVILR 1.3. “Partner” therefore bore the same restricted meaning in both provisions.

5. The narrower interpretation followed from the text and context of E-DVILR. It was unnecessary to rely on the history of the concession. Because T’s husband was not settled when her limited leave was granted, she could not meet either E-DVILR 1.2(b) or E-DVILR 1.3. The refusal of temporary relief was therefore lawful.

1. Court of Appeal (Civil Division): The court unanimously dismissed the appeal in [2016] EWCA Civ 801 and upheld the dismissal of the judicial review claim.

2. High Court, Administrative Court: Dingemans J dismissed the claim for judicial review in [2014] EWHC 2453 (Admin). He held that “partner” in E-DVILR 1.3 meant the partner of a person settled in the United Kingdom and that E-DVILR 1.2(b) did not confer the asserted route to indefinite leave.