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

The Court of Appeal dismissed the appellant's challenge under Article 14 ECHR read with Article 8, upholding the High Court's refusal of judicial review of the Secretary of State's decision to refuse temporary leave under the Destitute Domestic Violence Concession (DDVC). The primary legal questions were whether the appellant (a dependant of a Tier 2 migrant) was in an analogous position to partners of persons with pre-settled status under the EU Settlement Scheme (EUSS) and, if so, whether any difference in treatment was objectively justified. The court accepted that the appellant's immigration status fell within the ambit of Article 8 and that there was differential treatment, but concluded that the difference was objectively justified given the legitimate aim of the DDVC and the wide margin of judgement afforded to the State in the "unique" context of the United Kingdom's withdrawal from the EU. The court also refused the respondent's application to adduce fresh evidence about the husband's precise immigration route because the Home Office should have placed accurate factual material before the High Court.

Background and parties:

• The appellant (SWP), an Indian national, had been in the UK as the dependant of her husband (a Tier 2 migrant). She alleged serious domestic abuse and applied for temporary leave under the DDVC (a three month concession enabling access to public funds and work while applying for indefinite leave on domestic violence grounds).
• The Secretary of State refused the DDVC application because the husbands leave was not of a type specified under the DDVC or the DVILR provisions of the Immigration Rules. The appellant sought judicial review and appealed the High Court judgment dismissing her claim.

Relief sought: The appellant sought judicial review of the Secretary of State's decision dated 6 August 2021 and contended that the refusal was discriminatory contrary to Article 14 ECHR read with Article 8.

Issues framed:

1. Whether the appellant's exclusion from the DDVC engaged Article 14 in conjunction with Article 8 (the parties accepted it did).
2. Whether persons in the appellant's position were in an analogous situation to partners of EEA nationals with pre-settled status or refugees for the purposes of Article 14.
3. If an analogy was made out, whether the difference in treatment was objectively and reasonably justified, including the scope of any margin of appreciation.
4. Whether fresh evidence about the husbands immigration route (Tier 2 General v Tier 2 ICT) should be admitted on appeal.

Court's reasoning and conclusions:

• The court accepted the factual background of serious alleged domestic abuse and that the appellant lacked recourse to public funds following the refusal. It accepted the parties common ground that immigration status was an "other status" under Article 14 and that there was a difference in treatment.
• The court rejected a comparison with British citizens or settled persons and (for reasons given in A v Secretary of State for the Home Department) treated refugee status as a special, internationally-protected category. The principal realistic comparator was partners of EEA nationals with pre-settled status under the EUSS.
• The court proceeded on the assumption (without deciding) that there was a sufficiently close analogy between Tier 2 migrants on a path to settlement and EUSS pre-settled partners so as to address justification.
• On justification the court accepted the Home Office rationale for DDVC: the concession protects those who came to the UK in the expectation of permanent settlement with a British or settled partner, and that the EUSS exceptions arose from the particular, "unique" circumstances of withdrawal from the EU. Given the legitimate aim and the polycentric and political elements involved, the Secretary of State enjoyed a wide margin of judgement; the difference in treatment was objectively justified.
• The court refused to admit late evidence about the husbands actual immigration route because the Home Office should have provided accurate material to the High Court and the discretionary Ladd v Marshall principles were not satisfied.

Wider context: The court noted the inaccuracy of published DDVC guidance and recorded the Secretary of State's intention to amend it. The decision emphasised deference in socio-economic and treaty-withdrawal contexts and the narrow, remedial aim of the DDVC as a limited bridge to substantive applications under the Immigration Rules.

Appeal dismissed. The court affirmed the High Court's conclusion that, while the appellant's status engaged Article 14 read with Article 8 and there was differential treatment, the difference was objectively and reasonably justified. The Secretary of State's policy choices in the "unique" context of the United Kingdom's withdrawal from the European Union and the legitimate aim of the DDVC attracted a wide margin of judgement; accordingly the exclusion of the appellant's category from the concession did not amount to unjustified discrimination. The application to admit fresh evidence was refused because the Home Office should have provided accurate factual material to the lower court.

Appeal from the High Court of Justice, Kings Bench Division, Administrative Court (Kerr J) [2022] EWHC 2067 (Admin) to the Court of Appeal, Civil Division [2023] EWCA Civ 439.