SWP (R on the application of) v SECRETARY OF STATE FOR THE HOME DEPARTMENT

For the purposes of article 14 read with article 8, differential access to protection for victims of domestic violence may be justified even where different groups have a broadly comparable expectation of settlement. A route that normally leads to settlement does not make a migrant worker’s position equivalent to that of a settled person or refugee. A distinction may be justified where it reflects an economic or social strategy, including obligations arising from a specific international agreement.

The claimant, an Indian national and dependant of a Tier 2 migrant worker, fled alleged domestic violence and sought the three-month Destitute Domestic Violence Concession, which permits access to public funds while an application for settlement is made. The Secretary of State refused because the claimant had entered and been granted leave as a Tier 2 dependant, rather than as the partner of a settled person, refugee or EEA national with pre-settled status.

The judicial review challenged that exclusion under article 14 read with article 8. The central issues were whether the claimant was in a relevantly analogous position to the included groups and, if so, whether the difference in treatment was justified.

1. Procedural scope. Although the pleaded case did not directly challenge the domestic-violence settlement provisions, the Secretary of State understood the indirect challenge and was not prejudiced. The court therefore considered the arguments, but granted no relief in respect of those provisions (paras [46]-[53]).
2. Article 14 framework. Applying the five questions formulated in R (Parkin) v Secretary of State for Work and Pensions [2019] EWHC 2356 (Admin), the circumstances fell within the ambit of article 8; immigration status was “other status”; and there was differential treatment between the claimant and the included categories (paras [54]-[55]).
3. Analogy. A Tier 2 worker was not relevantly analogous to a British citizen, settled person or refugee. The worker was on a route leading to settlement, but was not as good as settled already and remained exposed to loss of sponsorship, employment problems and removal. The closest analogy was with an EEA national holding pre-settled status, since both had a strong expectation of settlement. The court assumed, without a detailed statistical comparison, that the situations were analogous (paras [66]-[74]).
4. Justification. The government had to explain not only the purpose of the scheme but why it discriminated against the claimant’s cohort. The difference was nevertheless justified. The extension of protection to partners of pre-settled EEA nationals formed part of the EUSS and resulted from the Withdrawal Agreement and its associated obligations. That constituted an economic or social strategy within the state’s wide margin of discretion. No equivalent obligation applied to Tier 2 workers from outside the EU and EEA (paras [75]-[83]).
5. Disposition. The claim was dismissed (para [84]).