AM, R (on the application of) v Secretary of State for the Home Department

The omission of provision for victims of transnational marriage abandonment from the domestic-violence settlement route was unlawful discrimination. Victims abandoned overseas were in an analogous position to victims abandoned in the UK. The Secretary of State’s reliance on an undefined policy review and discretionary leave outside the Rules did not provide a legitimate and proportionate justification, particularly given the serious effects on family life and children.

However, the domestic-violence provisions were not unlawful merely because they failed to address every circumstance falling within their broad protective purpose. A common-law purpose challenge required a statutory purpose, which was absent.

The claimant, a Pakistani national and victim of serious domestic abuse, was taken to Pakistan and abandoned there while separated from her young British child. The domestic-violence indefinite-leave provisions in Appendix FM applied only where the applicant was in the UK.

By the time of the hearing, she had returned to the UK and obtained indefinite leave to remain. Grounds concerning individual decisions were therefore academic. The court nevertheless determined the broader challenges concerning the omission of transnational marriage abandonment from the Rules, namely whether that omission was unlawful under common-law principles or discriminatory contrary to Articles 8 and 14 of the ECHR.

1. Academic issues. Grounds concerning leave outside the Rules, section 55 of the Borders, Citizenship and Immigration Act 2009 and Article 8 alone were academic after the claimant obtained indefinite leave to remain. Grounds challenging the general omission from the Rules were appropriately determined because similar cases were likely, the issues were capable of general definition, and the detriment to affected women and children was serious.
2. Common-law challenge. The claimant’s Padfield argument failed. The protective purpose of the DVILR provisions did not derive from a statutory purpose, and there was no legal duty to make provision for every victim of domestic abuse in every circumstance. The omission therefore did not itself make the Rules unlawful.
3. Article 14. The claimant’s presence outside the UK constituted an identifiable status. Victims of transnational marriage abandonment were in an analogous position to victims abandoned in the UK because the domestic abuse, settlement expectations and relevant family-life interests were materially the same.
4. The Secretary of State did not rely on immigration-control or public-purse justifications and accepted, in substance, that qualifying victims should ultimately be admitted and granted settlement. The proposed policy review had no timetable and had produced no effective progress. Reliance on leave outside the Rules caused substantial delay, cost, uncertainty and dependence on discretion, with a risk that some victims would never obtain effective redress.
5. Given the serious domestic abuse, frequent separation from children, and engagement of Article 8 family rights, those justifications were not proportionate. The differential treatment breached Article 14 read with Article 8 and the Human Rights Act 1998. The court reserved the form of order for further submissions.