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

A concession granting temporary leave and access to public funds for destitute victims of domestic violence may lawfully be confined to persons whose immigration status depended on an abusive spouse or partner. That limitation reflects the concession’s purpose of preventing the immigration system from compelling victims to remain in abusive relationships.

Indirect discrimination must be established by evidence that an apparently neutral policy disproportionately disadvantages the protected group. Any indirect discrimination arising from this concession was objectively justified. The duty under section 55 of the Borders, Citizenship and Immigration Act 2009 is a process duty. It does not require a particular immigration outcome or an extension contradicting the concession’s rationale.

The appellant, a Sudanese national married to a British citizen, left the matrimonial home following domestic violence. She applied for leave outside the Immigration Rules under the Destitution Domestic Violence Concession. The Secretary of State refused because she had not previously received leave as the spouse or partner of a British citizen or settled person and could not apply for settlement under the specified domestic-violence routes.

After preliminary factual findings in [2017] EWHC 3194 (Admin), Murray J dismissed her judicial review claim in [2018] EWHC 3475 (Admin). The appellant abandoned her challenge concerning entry under European Economic Area law. The remaining appeal concerned discrimination under articles 8 and 14 of the European Convention on Human Rights, the effect of victims’ rights under European Union law, and the statutory duty to safeguard and promote children’s welfare.

1. The appeal was dismissed unanimously. The concession directly distinguished between persons holding qualifying partner leave and those without it. It did not directly discriminate on grounds of sex or motherhood because it applied equally to men and women, fathers and mothers, and applicants with or without children.

2. A claimant alleging indirect discrimination bears the burden of proving that an apparently neutral policy disproportionately affects a protected group. General evidence that domestic-violence victims are predominantly women did not establish that the concession’s beneficiaries were more likely to be men while those disadvantaged were more likely to be women. The court nevertheless assumed indirect discrimination without deciding the point.

3. Any indirect discrimination was objectively justified. The concession’s limited purpose was to protect a person whose route to settlement depended on an abusive spouse or partner from being compelled by the immigration system to remain in that relationship. Temporary leave and access to public funds enabled that person to seek settlement independently. Restricting the concession to immigration status dependent on the relationship was integral to that purpose. The concession was not a general scheme for protecting every domestic-violence victim without a right to remain.

4. A v Secretary of State for the Home Department [2016] CSIH 38 was distinguished. The appellant there held limited leave derived from her relationship with a refugee sponsor and therefore fell within the concession’s rationale. The present appellant held no equivalent relationship-dependent leave.

5. Article 18 of Directive 2012/29/EU principally concerned protection within the context of criminal proceedings. It neither required residence status to be conferred on victims nor mandated extension of the concession. It also left member states a wide discretion in choosing protective measures. Article 24 of the EU Charter did not assist because the concession made no distinction according to whether an applicant had children. The court left open whether those EU instruments remained relevant after the United Kingdom’s departure from the European Union and whether article 18 had direct effect.

6. Section 55 of the Borders, Citizenship and Immigration Act 2009 imposes an important process duty to have regard to the need to safeguard and promote children’s welfare. It does not dictate a particular outcome. It therefore did not require the Secretary of State to extend the concession beyond its fundamental rationale.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously: [2021] EWCA Civ 59.
2. High Court, Administrative Court: Murray J dismissed the substantive judicial review claim: [2018] EWHC 3475 (Admin).
3. High Court, Administrative Court: At a preliminary hearing, Jefford J determined factual questions concerning the appellant’s residence in the Netherlands, entry into the United Kingdom and cohabitation with her husband: [2017] EWHC 3194 (Admin).