AM, R (On the Application Of) v Secretary of State for the Home Department [2022] EWHC 2591 (Admin) (14 October 2022)
In these judicial review proceedings, Lieven J held that Appendix FM, specifically the Domestic Violence Indefinite Leave to Remain (DVILR) of the Immigration Rules, and the differential treatment between victims of spousal abandonment inside and outside the UK is not justified and therefore breaches of Article 14 of the ECHR and the Human Rights Act 1998. The fact that the rules protected victims of spousal abandonment if they were present in the UK when they were abandoned, but not if they were outside the UK having been tricked or coerced by their abusive spouse, severely impacted the article 8 rights of the latter victims and could not be justified by the SSHD. AM, the claimant was a national of Pakistan born in 1991. In 2017 she married IM, a British citizen, and she arrived in the UK in December 2017 on a spouse visa valid until August 2020. In December 2018 she gave birth to a daughter. She was subjected to very severe financial, physical, emotional and sexual domestic abuse and, sitting in the Family Division of the High Court, Theis J made findings of very serious domestic abuse against the father. The violence inflicted by IM on AM had resulted in severe and long-lasting physical harm including the removal of one of her ovaries and also a diagnosis of achalasia type 2, which resulted in a weight loss of over 30 kilos.
She was forced to travel to Pakistan, ostensibly on a holiday to resolve marital problems, but IM retained X, and AM did not see her until they were reunited in the UK later on. AM was a victim of transnational marriage abandonment (TMA), leading to her being stranded in Pakistan and separated from her 2 year old British child for 8 months. AM's exclusion from the DVILR as a TMA victim was challenged in these judicial review proceedings. Advised by a member of staff of the British Embassy in Pakistan and the Visa Appliction Centre in Karachi, AM applied for a replacement Biometric Residence Permit (BRP) but this was refused on 10 March 2021 on the basis that she did not have valid leave to return when she left the UK. She then instructed Islington Law Centre (ILC) which submitted an urgent and detailed application for a fee waiver, showing her finances, the domestic abuse she was a victim of in the UK and her abandonment in Pakistan and separation from her daughter. ILC informed the SSHD that AM would need to be in the UK by 1 July 2021 to attend Family Court proceedings, and that the SSHD should facilitate and expedite her return to the UK.
The SSHD initially ignored but after typical lengthy delay granted the application for a fee waiver. AM received a visa for six months leave to enter outside the rules, with no recourse to public funds. Theis J ordered that X should be returned to AM's care and the SSHD first granted AM 30 months further leave to remain and ultimately on 24 June 2022 granted her Indefinite Leave to Remain (ILR). Spousal abandonment, including transnational marriage abandonment (TMA), was recognised by the courts as a form of domestic abuse. The DVILR section of the Immigration Rules offered protection to a domestic abuse victim if they were the partner of a UK citizen and they were present in the UK, by entitling them to indefinite leave to remain in the UK.
Grounds
AM advanced five grounds and submitted that the DVILR provisions are unlawful because they are contrary to the underlying purpose of this part of the Immigration Rules, they unlawfully discriminate against victims of TMA, the failure to grant Indefinite Leave to Enter (ILE) was unlawful as being contrary to the SSHD's Leave Outside the Rules policy, the failure to grant ILE to AM was contrary to section 55 of the Borders, Citizenship and Immigration Act 2009, and the failure to grant ILE was contrary to article 8 of the ECHR.
The SSHD argued that since AM lawfully returned to the UK and has been granted ILR, the claim is consequently academic and that Lieven J should dismiss on that basis.
Judgment of Lieven J
But overall her Ladyship refused to go by the SSHD's counter-claim and was attentive to the argument that at least one reason for the apparent growth in TMA is an attempt by perpetrators to evade the effect of the DVILR rules, because if the victim of domestic violence is not present in the UK they cannot take advantage of these provisions. The extremely unfair effect of the exclusion is to leave the abandoned spouse overseas with no legal right to return to the UK. The court first considered whether case was academic, and then examined whether DVILR section failed to meet purpose of the Immigration Rules and whether there was a breach of article 14.
Whether AM's case was academic
The court said that two conditions had to be met for the court to continue to hear a case where the determination of the proceedings would make no substantive difference to the claimant. The leading authority on whether the court should continue to hear a case that had become academic was R v SSHD ex p Salem [1999] 1 AC 450 where Lord Slynn of Hadley stated that appeals "which are academic between the parties should not be heard unless there is good reason in the public interest for doing so."
First of all, a large number of similar cases existed or were anticipated, or at least other similar cases existed or were anticipated, Secondly, the decision in the academic case would not be fact-sensitive. The court followed R (Heathrow Hub) v Secretary of State for Transport [2020] EWCA Civ 213 where the Court of Appeal approved R (Zoolife) v Secretary of State for the Environment, Food and Rural Affairs [2007] EWHC 2995.
Notably, in R (Razai) v SSHD [2010] EWHC 3151 (Admin) where cases illustrated generic issues which, the claimants had said, demonstrated the unlawfulness of a policy of the SSHD, Nichol J observed at paragraph 68 "If this occasion is not taken to consider them, there is a risk of further delay and potential injustice before another case can reach a final hearing." In view of the authorities, Lieven J held that:
41. In my view Grounds One and Two in this case do satisfy the tests set out in Salem and the subsequent caselaw. They both involve challenges to the Respondent's failure to put in place an Immigration Rule to deal with the issue of TMA. In absolute terms the number of women who are impacted by TMA is not very high. It is not possible to determine any precise numbers, not least because the Secretary of State has chosen either not to collate the numbers, or not to put such material as she does have before the Court. The SBS letter refers to that organisation having dealt with approximately 70 cases over 5 years, but it is likely that the number is considerably higher than that given that SBS is simply one NGO. Therefore, one could conservatively estimate over 20 cases per annum, and it might be considerably more.
42. However, quite apart from the absolute numbers, the level of detriment caused to the women concerned (and often their children) must be relevant to the issue of whether it is appropriate for the court to determine the case. I am mindful of the duty of the Defendant under s.55 of the Borders Act, and the impact on the Article 8 rights of the mothers and children impacted by TMA.
The SSHD argued that the cases are fact sensitive, and it is therefore not appropriate to determine AM's case given that other cases may be materially different. Inevitably each case will have its individual facts and those facts will have some relevance. However, the key characteristics, as the court described them, will arise in all or virtually all cases. Therefore, the parameters that would be addressed in any Rule or policy are ones that can be generally defined and considered. The SSHD also submitted that it is material that there are no other cases that have reached the court, and it was suggested that this shows the issue is being appropriately dealt with. However, Lieven J found this merely illustrates why it is important that the legal issues raised in this case are determined.
The evidence had strongly suggested that once a victim of TMA manages to get the right legal advice, and legal steps are taken on her behalf, then at some point the SSHD will grant her leave to enter. That seems to be the reason why no cases, where there has been a challenge to the SSHD's refusal of leave to enter, had reached the courts. Lieven J was of the following view and applied Razai to hold:
45. However, that does not overcome the problems set out by Ms Chapman, namely that it is very hard for the abandoned spouses to get the correct legal advice, to access funds to do so, and that there may be very considerable delay before they can do so. There is therefore considerable risk of injustice and hardship both to the women concerned, and their children, if this issue is not determined. There may also be a cohort of women who never do get the correct advice and are therefore hidden from any statistics as to the breadth of the problem. This case therefore falls within the principle set out by Nichol J in Razai: if this occasion before the Court is not taken there will be further delay and potentially injustice before the issue is determined.
Grounds three, four and five all went to the specific facts of AM's case and the failure to grant her leave to enter outside the Rules and ILR. These issues had been been dealt with by the grant of ILR. To the degree the AM's case raises issues that arise in many other similar cases, those issues were dealt within grounds one and two. Therefore, the final three grounds were genuinely academic and fell away and did not need to be dealt with by the court which addressed grounds one and two.
DVILR and Immigration Rules
As to whether DVILR section failed to meet purpose of the Immigration Rules, the court said that the fact that the SSHD had chosen by way of the DVILR to give protection to victims of domestic abuse who were in the UK—including from spousal abandonment—did not mean that a failure to give such protection in all respects was unlawful.
There was no duty on the SSHD, whether in statute or the Immigration Rules, to make provision for all such victims and in all circumstances, even where they might fall within the broad purpose of one part of the Rules. That was a matter for the SSHD, exercising her discretion when making the Rules, not a matter of legal requirement.
Lieven J stated that the SSHD's submission was surely right that the lack of provision does not render the Rules unlawful, and that the SSHD protects victims of abuse by the use of her discretion to grant Leave Outside the Rules.
Breach of Article 14
The right to respect for private and family life under article was engaged by the lack of provision for TMA in the Rules and the victim's family life was fundamentally impacted by their difficulties in re-entering the UK, caused at least in part by the absence of an applicable immigration rule.
The court said that the fact that the victims of spousal abandonment were protected by the DVILR if they were present in the UK when they were abandoned but not if they were outside the UK amounted to unlawful discrimination in breach of Article 14 of the ECHR and of the Human Rights Act 1998. It followed the analytical framework to be applied by the courts in cases concerning Article 14 as recently elaborated by the UK Supreme Court in R (SC) v Secretary of State for Work and Pensions [2022] AC 223 where at paragraph 37 Lord Reed PSC endorsed Carson v United Kingdom (2010) 51 EHRR 13 concerning whether it was justified to treat Ms Carson differently for the purposes of State pension when she was resident in South Africa rather than in the UK.
In R (A and B) v Secretary of State for Health [2017] UKSC 41 the Supreme Court was considering a challenge to the failure to provide abortion services to women who were resident in Northern Ireland. It accepted that the fact of residence in Northern Ireland could give rise to a status within Article 14 and therefore the differential treatment from women in the rest of the UK, required justification. On the basis of that line of caselaw the court accepted that AM's presence in Pakistan rather than the UK for the purposes of gaining protection from domestic abuse by spousal abandonment was a relevant status.
AM relied on the witness statements of solicitors who handle these cases, to show the very considerable problems that arise for these women in the absence of any provision in the Rules. In applying for Leave Outside the Rules they are entirely dependent on the exercise of discretion by the Defendant and have no legal entitlement to ILR. Routinely, Entry Clearance Officers refuse their applications and give no assistance on what route to follow. Indeed, even at the stage of making the application, it is not clear what form of application to make. Moreover, the fee for an application varies from £100 to over £1500 depending on the precise application made, and very few, if any, of these women have so much money available. On the other hand, since there is no clear route to application, it has proved extremely difficult to persuade the Home Office to grant fee waivers.
Overall, the geographic location of being outside the UK leading to different treatment between victims was capable of being an "other status" within Article 14 on which an allegation of discrimination could be founded. The court held that:
78. The women in these cases are the victims of a very serious form of domestic abuse, often involving serious physical and psychological harm. In many if not most cases they will either have been separated from their children or it will be impossible for their children to return to the UK, even where they are UK citizens, without leaving their mothers. The impact on the Article 8 family rights of the victims is therefore very great. The Defendant does not argue that such women should not ultimately be admitted to the UK or are an inappropriate call on UK resources.
79. In my view the justification advanced is therefore not proportionate to the interference with Article 8 rights, and the differential treatment between victims of spousal abandonment inside and outside the UK is not justified and therefore is in breach of Article 14 and of the Human Rights Act 1998.
The SSHD had not advanced an acceptable justification for the differential treatment. Regarding time to review the situation, the matter had apparently been considered since 2016 with no progress. Regarding dealing with TMA cases outside the Rules, there was very clear evidence that such a process severely disadvantaged the victims of TMA, in terms of lengthy delay, costs and the probability that there existed a cohort of unknown number who never managed to return to the UK.
Comment
Among other things the court very clearly pointed out that the women in these cases are the victims of a very serious form of domestic abuse—often involving serious physical and psychological harm and either have been separated from their children. No doubt a wise decision by the court and a step in the right direction for victims of TMA.