High Court Considers Domestic Violence Victims Abandoned Abroad
In the recent case of R (AM) v SSHD [2022] EWHC 2591 (Admin), the High Court addressed an underpublicized form of domestic abuse, known to campaigners as ‘transnational marriage abandonment’.
The case involved a Pakistani woman resident in the UK, who had been left stranded in Pakistan and separated from her two-year-old child after being abandoned on what was supposedly a family holiday by her abusive husband. Handing down judgment, Mrs Justice Lieven held that the provisions in the Immigration Rules concerning indefinite leave to remain (“ILR”) for victims of domestic violence are unlawful under the Human Rights Act insofar as they discriminate against victims outside the UK.
This blog post considers the background to the case, the court’s reasoning, and the implications of the decision.
The DVILR Provisions and Transnational Marriage Abandonment
Appendix FM to the Immigration Rules allows the spouses and long-term partners of British nationals, settled persons, and various other kinds of UK residents to join or remain with their partner in the UK.
If a relationship breaks down, a person holding leave as a partner may find their leave cut short. Unfortunately, this can incentivize people to stay in relationships they might otherwise want to leave. Section DVILR (“Domestic Violence Indefinite Leave to Remain”) of Appendix FM is designed to prevent this from happening in cases of domestic abuse. It provides – broadly – that if an applicant is in the UK; held leave as a partner under Appendix FM; and their relationship has broken down due to domestic abuse, then (subject to making a valid application and meeting suitability requirements), they are entitled to ILR. My colleague has written a two-part guide (see Part 1 and Part 2) to making an application on this basis.
The DVILR rules envisage a situation in which the victim of abuse is already in the UK. As a result, they do not account for cases of “transnational marriage abandonment” (“TMA”). This is where the abusive partner (in practice always the husband) compels or deceives his wife into leaving the UK, before returning without her. The victim’s immigration status may prevent her return – for example, if her leave has expired, or if the abuser has it curtailed by reporting the breakdown of the relationship to the Home Office.
The Claimant’s evidence surrounding this practice included testimony from Southall Black Sisters, who reported handling a significant number of such cases. Summarising, Lieven J explained, “The perpetrator’s position as a British national or person settled in the UK gives them a significant advantage in terms of divorce, financial settlement and child arrangements” [30]. In some situations, women have been prevented from re-entering the UK even where a family court has requested they be allowed to do so to participate in proceedings concerning their children.
It seems probable – as the Claimant argued – that part of the reason for the rise in TMA has been specifically to circumvent the DVILR rules.
Background in AM’s Case
The Claimant in this case, anonymised as “AM”, arrived in the UK in 2017 to join her British husband, and in 2018 gave birth to a British daughter.
Over the course of the relationship, AM was subjected by her husband to severe financial, physical, emotional and sexual abuse. The evidence was undisputed. This culminated in January 2021, when AM’s husband forced AM and their daughter to travel with him to Pakistan. Once there, he took her travel documents, took their child, and returned to the UK. AM tried to apply for replacement documentation, but was unable to do so as her leave as a spouse had expired. Had she been in the UK, she would have been eligible for settlement under Section DVILR. Instead, she was unable to enter the country, and remained apart from her daughter.
Eventually the Home Office, exercising the Secretary of State’s discretion to grant leave outside the Immigration Rules, granted AM leave to enter – but only for a temporary period of 6 months, and without recourse to public funds.
AM brought a judicial review, advancing five grounds [19]:
- That the DVILR provisions are unlawful because they are contrary to the underlying purpose of this part of the Immigration Rules;
- That the DVILR unlawfully discriminate against victims of transnational marriage abandonment;
- That the failure to grant Indefinite Leave to Enter is unlawful as being contrary to the Defendant’s Leave Outside the Rules policy;
- That the failure to grant Indefinite Leave to Enter is contrary to s.55 of the Borders, Citizenship and Immigration Act 2009;
- That the failure to grant Indefinite Leave to Enter is contrary to Article 8 of the European Convention of Human Rights (“ECHR”).
A Purely Academic Case?
Shortly before the substantive hearing, the Home Office did in fact grant AM ILR. For that reason, they then argued that the claim had become “academic” – i.e. the outcome would make no difference to the Claimant – and so should not be heard. AM’s counsel conceded that the case was indeed academic in this sense, but argued that it should be heard because of its wider significance.
Applying the test from R (Salem) v SSHD [1999] 1 AC 450, as interpreted by subsequent case law, Lieven J held that Grounds 1 and 2 should be heard because there was good reason in the public interest for doing so. If the issue in question were not resolved, it seemed probable that similar cases would be brought in future. Whilst the judge accepted that, “In absolute terms the number of women who are impacted by TMA is not very high”, she stressed that “[…] 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”. She did not accept the Home Office’s submission that the facts of the present appeal were so specific as not to be of relevance in hypothetical future proceedings; nor did she buy the argument that the fact this was the first TMA case before the court showed that the Home Office was dealing with the problem effectively.
Grounds 3, 4 and 5, on the other hand, were deemed academic. They dealt with the exercise of the Secretary of State’s discretion in AM’s specific circumstances, and would not bear significance to future claimants if the issues thrown up in Grounds 1 and 2 could be resolved.
Ground 1: the Padfield argument
In Ground 1, the Claimant sought to argue that the failure to make provision for TMA victims was unlawful because it neglected to put into effect the underlying purpose of the DVILR provisions: namely, to protect victims of domestic violence who have (or had) leave to be in the UK as a partner. In effect, this was an attempt to extend the principle of administrative law famously set down in R (Padfield) v Minister of Agriculture [1968] AC 997: that a minister cannot exercise a statutory power to “thwart or run counter to the policy and objects” of the statute which grants him it.
This was a slightly tenuous argument. The Immigration Rules, whilst in some senses more akin to law than to policy guidance, do not confer statutory powers on the Home Secretary in the same way that an Act of Parliament would. Protecting domestic abuse victims may be the intention of the DVILR provisions, but in the words of Lieven J, “There is no duty on the Secretary of State, whether in statute or the Rules, to make provision for all such victims and in all circumstances” [56].
Ground 1 was therefore dismissed, leaving only Ground 2 remaining.
Ground 2: human rights and unlawful discrimination
Article 14 ECHR prohibits discrimination in respect of the other rights and freedoms protected by the Convention. It was uncontested that AM’s case engaged the right to a family life under Article 8.
The court then followed the approach of Lord Reed in the recent Supreme Court case of R (SC) v Secretary of State for Work and Pensions [2022] AC 223, which may be summarised as:
- Is there a difference in treatment based on an identifiable characteristic or “status”?
- Are the persons treated differently in analogous or relevantly similar situations?
- Is there an objective and reasonable justification for the difference (i.e. does it pursue a legitimate aim and is it proportional)?
- Does it fall within the margin of appreciation?
Lieven J held yes on all fronts. Case law has established that geographical location is to be treated as a status for the purposes of limb 1 of the test. The situations were relevantly similar in that victims “will have suffered the same form of domestic abuse, with the only difference being one is in the UK and one is not, at the time of the abandonment” [71]. In respect of limb 3, the Defendant, unusually, did not advance “effective immigration control” as justification, but rather submitted that the Home Office already considered TMA victims under its Leave Outside the Rules policy, and that it was in any case undertaking a review of TMA, though this would take time. This did not persuade the judge that there was a legitimate aim – indeed, she concluded, “There does not appear to be an “aim” in not making Rules, it is simply that the Defendant has not addressed her mind to the issue or has not yet formulated the proposed Review” [74]. And despite the generally wide margin afforded to states in Article 14 cases, “such a margin is not untrammelled where there is ongoing discriminatory treatment particularly where there are seriously detrimental consequences to the victims, at some point a rational justification must be advanced” [74].
As a result, the differential treatment of TMA victims was held to be in breach of Article 14 and the Human Rights Act.
Comment
It is difficult to find fault with the reasoning in the succinct and clearly written judgment.
Lieven J was surely correct to dismiss Ground 1. The principle from Padfield is built on the idea that the executive arm of government should not be allowed to subvert the intentions of a democratically elected Parliament. But the Immigration Rules, by contrast to legislation, were produced (in effect) by the Secretary of State herself. It is somewhat contradictory to extrapolate the Secretary of State’s supposed “purpose” from the Rules, whilst simultaneously accusing her of thwarting that purpose.
On the other hand the human rights argument was strong. The wide margin of appreciation means that Article 14 typically has a high threshold, but if ever there was a case where it was made out, this was it. The plight of TMA victims, as exemplified starkly by AM herself, was given due weight, whilst the Leave Outside the Rules policy was not an effective counterbalance in the proportionality exercise. True, it had eventually allowed AM into the country, but only after a significant period of time, and with no doubt far greater legal costs and emotional stress involved on the part of the victim. The Home Office’s promised review, which significantly had no timescale attached, was also not a persuasive excuse.
Since the Secretary of State has confirmed that she does not intend to appeal the judgment, the Home Office must now consider how to amend the DVILR rules to protect victims of transnational marriage abandonment. Hopefully this is a change that will come about quickly.
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