R (FA (Sudan)) v Secretary of State for the Home Department

The Court of Appeal dismissed an appeal against the refusal of leave outside the Immigration Rules under the Destitution Domestic Violence Concession (DDVC). The appellant had not satisfied the pre-conditions to be eligible for the Concession (in particular prior grant of leave as a partner and the ability to apply under the specified Immigration Rules). The court held that the Secretary of State was entitled to ask whether, on the face of it, an applicant could meet the requirements of the relevant Immigration Rules (including paragraph 289A and section DVILR of Appendix FM) and to refuse the concession where it was clear they could not.

The court rejected Article 14 ECHR discrimination complaints (read with Article 8) because any indirect discrimination that might arise was objectively justified by the concession's underlying rationale of enabling those whose right to apply for settlement depends on a partner to make a settlement application without being compelled to remain with an abuser. Claims under Article 18 of Directive 2012/29/EU and Article 24 of the EU Charter of Fundamental Rights did not require a different outcome. Section 55 of the Borders, Citizenship and Immigration Act 2009 was a process duty and did not require extension of the Concession to applicants outside its terms.

This appeal concerned the lawfulness of the Home Office's Destitution Domestic Violence Concession (DDVC) and, specifically, the Secretary of State's decision of 9 August 2016 refusing the appellant leave outside the Immigration Rules under that concession. The appellant, born in Sudan, had lived in the Netherlands, entered the United Kingdom in 2015 using a Dutch residence card and later left her matrimonial home claiming domestic violence and destitution. She applied on 4 August 2016 for LOTR under the DDVC; the Secretary of State refused on the ground she did not meet the concession's criteria.

Procedural history:

• Permission to seek judicial review was granted on 13 March 2017.
• A preliminary factual hearing before Jefford J resolved questions of residence in the Netherlands, the circumstances of entry to the UK and the period of cohabitation: see [2017] EWHC 3194 (Admin).
• The substantive judicial review was heard by Murray J who dismissed the claim: [2018] EWHC 3475 (Admin).
• Permission to appeal to the Court of Appeal was granted by Longmore LJ on 5 August 2019 and the appeal was heard on 13 January 2021.

The appellant sought relief by challenging the lawfulness of the DDVC. The Court of Appeal summarised the principal issues as (i) whether the appellant was entitled to relief under EEA/regulation 9 grounds (later not pursued), (ii) whether the DDVC breached Article 14 ECHR read with Article 8 by discriminating on grounds of sex, motherhood or immigration status, (iii) whether EU instruments (Directive 2012/29/EU Article 18 and EU Charter Article 24) required a different outcome, and (iv) whether section 55 of the Borders, Citizenship and Immigration Act 2009 required a different approach.

The court's reasoning was: the appellant did not meet the DDVC's eligibility criteria (notably prior grant of partner leave and the ability to apply under the specified Immigration Rules). On Article 14, the court accepted that the complaint could be framed as indirect discrimination but found the evidence of disparate impact insufficient; even assuming indirect discrimination, the distinction was objectively justified by the concession's limited purpose — to enable those whose settlement application depends on a partner to make that application without being compelled to stay with an abuser. The Directive and the Charter/Article 24 did not mandate the outcome sought by the appellant and left Member States substantial discretion as to protective measures; Article 18 was principally concerned with criminal-procedure protections and did not impose an obligation to grant immigration status. Section 55 was a process duty and did not require extending the concession beyond its rationale. For those reasons the appeal was dismissed.

The appeal was dismissed. The Court of Appeal upheld the High Court's dismissal: the appellant did not meet the DDVC eligibility conditions and the challenged distinction (including any indirect discrimination on grounds of sex, motherhood or immigration status) was objectively justified by the concession's limited aim of enabling partners whose settlement depends on a sponsor to make a settlement application. Claims under Directive 2012/29/EU Article 18, the EU Charter Article 24 and section 55 of the Borders, Citizenship and Immigration Act 2009 did not require a different outcome.

Permission to apply for judicial review was granted by a deputy High Court judge on 13 March 2017. A preliminary factual hearing was conducted before Jefford J, judgment [2017] EWHC 3194 (Admin). The substantive claim was dismissed by Murray J, [2018] EWHC 3475 (Admin). Permission to appeal to the Court of Appeal was granted by Longmore LJ (order sealed 5 August 2019). This Court delivered judgment dismissing the appeal on 22 January 2021, [2021] EWCA Civ 59.