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

Article 14 requires a difference in treatment to be assessed against a relevantly similar comparator and justified by a legitimate aim pursued through proportionate means. Immigration status is not a suspect ground, and a wide margin of judgment may apply to general economic or social strategy. The exclusion of partners of temporary work migrants from the DDVC was objectively justified when compared with the EUSS category. The EUSS arose from the distinctive legal and political context of the United Kingdom’s withdrawal from the European Union. The DDVC remains a limited bridge to settlement, rather than a general domestic-abuse policy.

SWP, an Indian national, entered the United Kingdom as the dependant partner of a migrant worker. Following domestic abuse, she applied for temporary leave under the Destitute Domestic Violence Concession. The Secretary of State refused the application because the sponsor’s leave was outside the eligible categories. Mr Justice Kerr dismissed her judicial review claim: [2022] EWHC 2067 (Admin).

On appeal, the central issue was whether excluding partners of temporary work migrants, while including partners of EEA nationals with pre-settled status under the EUSS, was objectively justified under Article 14 read with Article 8 of the ECHR. The Court also considered the respondent’s alternative argument on analogy and an application to adduce fresh evidence about the sponsor’s immigration status.

1. Disposition. The appeal was dismissed unanimously. The respondent’s application to adduce fresh evidence was refused.
2. Article 14. Applying the approach identified by Lord Reed in R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26, the Court considered whether there was a difference in treatment based on status, whether the relevant persons were in analogous situations, and whether the difference pursued a legitimate aim through proportionate means. The scope of the State’s margin varies with the circumstances, subject matter and background.
3. Comparator and justification. The relevant comparison was between partners of Tier 2 migrant workers and partners of EEA nationals with pre-settled status under the EUSS. The appellant could not avoid addressing the justification for the EUSS category. The refugee exception was not an appropriate analogy. The Court applied the reasons identified in A v Secretary of State for the Home Department [2016] CSIH 38, including the distinctive legal position of refugees and the high likelihood of eventual settlement.
4. Immigration status was not a suspect ground. The policy concerned general measures of economic or social strategy, so a wide margin of judgment applied. The United Kingdom’s withdrawal from the European Union created a unique context capable of objectively and reasonably justifying the differential treatment. The Court also drew an analogy with the special legal order recognised in Ponomaryov v Bulgaria (2014) 59 EHRR 20.
5. R (AM) v Secretary of State for the Home Department [2022] EWHC 2591 (Admin) was distinguishable. It concerned a location-based exclusion where the same policy considerations applied and the rule-maker had not considered the issue. That did not govern an exclusion based on the sponsor’s immigration category. The Court additionally observed that analogy and justification may be two sides of the same coin, but this was an alternative point on the respondent’s notice.
6. Fresh evidence and procedural rigour. Under rule 52.11(2) of the Civil Procedure Rules 1998, the appeal court has discretion to receive evidence not before the lower court. The Ladd v Marshall [1954] 1 WLR 1489 criteria remained relevant. The evidence could have been obtained earlier, and the Home Office had a duty of candour and cooperation to place the accurate immigration history before the High Court. Procedural rigour applies equally to public authorities, as explained in R (Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605. Late admission was refused.

• Court of Appeal (Civil Division): dismissed the appeal and refused the application to adduce fresh evidence. [2023] EWCA Civ 439.
• High Court of Justice, King’s Bench Division, Administrative Court: Mr Justice Kerr dismissed the judicial review claim on 2 August 2022. [2022] EWHC 2067 (Admin).