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

The destitution domestic violence concession is a limited policy remedy. It provides temporary leave and access to public funds for victims who have leave to remain and are on a route to settlement under the domestic violence rules. It is not a general protection for every victim of domestic violence.

Eligibility requires satisfaction of all the policy conditions, including the relevant immigration status and an intention to apply for settlement. A lawful entry on a different immigration route does not suffice. The distinction between victims with and without qualifying leave is justified because the concession addresses the risk that loss of a settlement route will deter a victim from leaving an abusive relationship. It does not unlawfully discriminate or breach the EU Victims’ Rights Directive, the EU Charter or the duty to safeguard children’s welfare.

FA, a Sudanese national and mother of two British children, sought judicial review of the refusal of her application for leave to remain outside the rules under the destitution domestic violence concession.

She had entered the United Kingdom from the Netherlands using a Dutch residence card, rather than leave granted as the spouse or partner of a British citizen. A preliminary factual hearing found that her husband had not been residing or working in the Netherlands and that she had not resided with him there for five years. The issues were whether she entered under the returning-British-citizen route and whether exclusion from the concession breached article 14 read with article 8 of the Convention, article 18 of the EU Victims’ Rights Directive, article 24 of the EU Charter, or section 55 of the Borders, Citizenship and Immigration Act 2009.

1. The claim for judicial review was dismissed.

2. Regulation 9 of the Immigration (European Economic Area) Regulations 2006 applied only where the returning British citizen had been residing in an EEA state as a worker or self-employed person. The claimant’s husband had visited the Netherlands but had not resided or worked there. Her Dutch residence card and the fact that it had been checked on entry were insufficient.

3. The concession required satisfaction of all its conditions, including prior leave as the spouse, civil partner or partner of a qualifying person and an intention to apply for indefinite leave to remain under the domestic violence rules. Following R (T) v Secretary of State for the Home Department [2016] EWCA Civ 801, the Secretary of State could refuse temporary relief where it was clear that the applicant could not meet the relevant settlement requirements. The claimant had no qualifying leave and could not satisfy the relevant route requirements.

4. For article 14 of the Convention, the court adopted the single-question approach in R (Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173: whether there was enough of a relevant difference between the claimant and the comparator to justify different treatment. The claimant’s lack of qualifying leave created a relevant difference. The concession addressed the specific coercive risk that a victim would lose a potential route to settlement by leaving an abusive partner. The distinction was therefore justified.

5. Article 18 of the EU Victims’ Rights Directive principally concerned protection in the context of criminal proceedings, not immigration status. Article 24 of the EU Charter did not require the concession to be available to parents without qualifying leave. Section 55 of the Borders, Citizenship and Immigration Act 2009 did not alter the scope of the concession, which was reasonable and proportionate for its limited purpose.

The judgment describes an earlier preliminary factual determination by the Administrative Court in R (FA (Sudan)) v Secretary of State for the Home Department [2017] EWHC 3194 (Admin). The present court proceeded to determine the substantive judicial review claim and dismissed it.