T, R (On the Application Of) v Secretary of State for the Home Department [2016] EWCA Civ 801

[2016] EWCA Civ 801Case No C4/2014/2634
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2014] EWHC 2453 (Admin)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Mr. Justice Dingemans
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28 July 2016
Before
LORD JUSTICE MOORE-BICKVice-President of the Court of Appeal, Civil DivisionLORD JUSTICE LONGMORELADY JUSTICE MACUR
Between
THE QUEENClaimant/SECRETARY of STATE for the HOME DEPARTMENTDefendant/Respondent
Miss Judith Farbey Q.C. and Miss Rebecca Chapman (instructed by Ealing Law Centre) for appellantMiss Cathryn McGahey Q.C.(instructed by the Government Legal Department) for respondentHearing Hearing date : 12 th July 2016
Judgment ApprovedLord Justice Moore-Bick :
[1]This is an appeal by the appellant, T, against the order of Dingemans J. dismissing her claim for judicial review of the decision of the Secretary of State to refuse her application under what is known as the “Destitute Domestic Violence Concession” (the “DDV Concession”).[2]The DDV Concession was established outside the Immigration Rules in April 2012 as a means of providing temporary support and assistance to destitute victims of domestic violence, who through lack of means would otherwise be forced to remain in abusive relationships. Under it a successful applicant is granted leave to remain for a period of three months, without a condition prohibiting recourse to public funds, to enable her (most applicants are inevitably women) to make an application for indefinite leave to remain under section DVILR of Appendix FM to the Immigration Rules. The Concession can therefore be viewed as a basis of granting temporary relief designed to enable a victim of domestic violence to make a substantive application for indefinite leave to remain. Background[3]The background to this appeal is described by Dingemans J. in his judgment as follows:
“2. The Claimant is now the spouse of a refugee who was granted refugee status on 16 November 2007 with 5 years’ leave to remain. The refugee left the United Kingdom in 2010 and travelled to Ethiopia where he met and married the Claimant. The Claimant then applied to enter the United Kingdom. On 16 July 2012 the Claimant was granted entry clearance to the United Kingdom as the post flight spouse of a refugee, and the Claimant was granted leave to enter on 10 August 2012. 3. On 31 December 2012 the refugee, now the Claimant’s husband, applied for indefinite leave to remain (“ILR”). He was granted ILR on 6 February 2013. In circumstances, the details of which it is not necessary to relate, the Claimant became the victim of unlawful domestic and sexual violence. This is common ground for the purposes of this case. . . . 4. On 19 February 2013 the Claimant was accommodated in an emergency night shelter and on 26 February 2013 she made an application under a policy operated by the Defendant known as the Destitute Domestic Violence Concession (“the DDV Concession”). This application was refused on the same day on the basis that it was said that the DDV Concession did not apply to the Claimant. 5. On 25 April 2013 a further application was made under the DDV Concession. By letter dated 30 April 2013 the Defendant refused the application stating that “you arrived in the United Kingdom on 10 August 2012 with entry clearance post flight spouse of a person who holds limited leave in the United Kingdom as a refugee/HP beneficiary, you were granted leave in line with your EC until 16 October 2017. Consequently, you do not qualify for temporary leave under the Concession as you were not admitted to the United Kingdom as a spouse, civil partner, unmarried or same sex partner of a British citizen or someone present and settled in the United Kingdom under part 8 (or appendix FM) of the Immigration Rules”.” (Emphasis added.)
“you arrived in the United Kingdom on 10 August 2012 with entry clearance post flight spouse of a person who holds limited leave in the United Kingdom as a refugee/HP beneficiary, you were granted leave in line with your EC until 16 October 2017. Consequently, you do not qualify for temporary leave under the Concession as you were not admitted to the United Kingdom as a spouse, civil partner, unmarried or same sex partner of a British citizen or someone present and settled in the United Kingdom under part 8 (or appendix FM) of the Immigration Rules”.” (Emphasis added.)[4]On 28th May 2013 the claimant began proceedings seeking judicial review of the Secretary of State’s decision. A large number of issues were originally raised in the proceedings, but by the time the matter came on for trial it was common ground that the case turned on the correct interpretation of sections DVILR and E-DVILR of Appendix FM to the Immigration Rules, which deal with applications for indefinite leave to remain by foreign victims of domestic violence. It was accepted that it was not unlawful for the Secretary of State to refuse temporary relief to someone who could not satisfy the requirements for a grant of indefinite leave to remain. Sections DVILR and E-DVILR of Appendix FM[5]At the time in question sections DVILR and E-DVILR provided as follows: “Section DVILR: Indefinite leave to remain (settlement) as a victim of domestic violence. DVILR 1.1. The requirements to be met for indefinite leave to remain in the UK as a victim of domestic violence are that-(a) the applicant must be in the UK;(b) the applicant must have made a valid application for indefinite leave to remain as a victim of domestic violence;(c) the applicant must not fall for refusal under any of the grounds in Section S-ILR: Suitability-indefinite leave to remain; and(d) the applicant must meet all of the requirements of Section E-DVILR: Eligibility for indefinite leave to remain as a victim of domestic violence. Section E-DVILR: Eligibility for indefinite leave to remain as a victim of domestic violence E-DVILR 1.1. To meet the eligibility requirements for indefinite leave to remain as a victim of domestic violence all of the requirements of paragraphs E-DVILR.1.2. and 1.3. must be met. E-DVILR 1.2. The applicant’s last grant of limited leave must have been – (a) as a partner (other than fiancé(e) or proposed civil partner) of a British Citizen or a person settled in the UK; (b) granted to enable access to public funds pending an application under DVILR; or (c) granted under paragraph D-DVILR.1.2. E-DVILR 1.3 The applicant must provide evidence that during the last period of limited leave as a partner the applicant’s relationship with their partner broke down permanently as a result of domestic violence.” (a) the applicant must be in the UK; (b) the applicant must have made a valid application for indefinite leave to remain as a victim of domestic violence; (c) the applicant must not fall for refusal under any of the grounds in Section S-ILR: Suitability-indefinite leave to remain; and (d) the applicant must meet all of the requirements of Section E-DVILR: Eligibility for indefinite leave to remain as a victim of domestic violence. (a) as a partner (other than fiancé(e) or proposed civil partner) of a British Citizen or a person settled in the UK; (b) granted to enable access to public funds pending an application under DVILR; or (c) granted under paragraph D-DVILR.1.2.[6]In the general definition section of Appendix FM, Section GEN 1.2, “partner” is defined in paragraph (iv) as meaning the applicant’s spouse, civil partner, fiancé(e) or proposed civil partner or a person who has been living together with the applicant in a relationship akin to a marriage or civil partnership for at least two years prior to the date of application, unless the context otherwise requires.[7]The Secretary of State maintained that it was lawful for her to refuse the appellant temporary relief because she could not satisfy all the requirements of section DVILR 1.1 and so could not qualify for a grant of indefinite leave to remain. It was not disputed that if the appellant were to make an application under section DVILR 1.1 she would be able to satisfy the requirements of sub-paragraphs (a), (b) and (c) of that section; the only question was whether she would also be able to satisfy the requirements of sub-paragraph (d) and section E-DVILR. It was accepted on her behalf that she could not satisfy sub-paragraphs (a) or (c) of section E-DVILR 1.2, but it was said that she would be able to satisfy sub-paragraph (b) and also the requirements of E-DVILR 1.3, given that the meaning of the word “partner” was not limited to the partner of a person already settled in this country. The judge rejected that argument. He held that, having regard to the context in which it was found, “partner” in E-DVILR 1.3 meant the partner of a person settled in this country and that E-DVILR 1.2(b) did not give the Secretary of State a discretion to grant indefinite leave to remain to a person who had not been admitted as a partner of a person settled in this country. The appeal[8]Miss Farbey Q.C. accepted on behalf of the appellant that, if it were not possible for her to obtain indefinite leave to remain under DVILR 1.1, the Secretary of State was entitled to refuse to grant her temporary relief under the DDV Concession in order to enable her to make the necessary application. She submitted, however, as she had before the judge, that the appellant would be able to satisfy all the requirements for obtaining indefinite leave to remain because she could bring herself within paragraphs 1.2(b) and 1.3 of E-DVILR. She should therefore have been granted the relief she sought. In support of her argument she drew our attention to the wording of the rules relating to the partners of members of the armed forces who are victims of domestic violence, in which there is an explicit reference to the concession, and to the decision in Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568, [2014] I.N.L.R. 291, in which this court held that the Secretary of State cannot rely on extraneous material in order to construe the rules more harshly or to resolve an ambiguity in the government’s favour. She submitted that the absence of any reference in section E-DVILR to the DDV Concession was a strong indication that the section as a whole was intended to be of more general application.[9]I should add for completeness that, although Miss Farbey drew our attention to the recent decision of the Inner House of the Court of Session in A v Secretary of State for the Home Department [2016] CSIH 38, she did not feel able to rely on it in support of her arguments, given the way in which the issues in this case had developed, both below and on appeal. Discussion[10]I do not think that much assistance is to be gained from a comparison between the language of section E-DVILR and that of the corresponding provisions relating to the armed forces. The two are worded differently and each must be construed by reference to its own terms. The difficulty for the appellant in this case lies not so much in the language of sub-paragraph 1.2(b) itself, but in the opening words of the paragraph, which direct attention to the applicant’s last grant of limited leave. It is unfortunate for the appellant that her husband obtained indefinite leave to remain, and thereby became settled in the United Kingdom, after, and not before, she was granted leave to enter and remain in this country. However, the fact remains that until her leave was curtailed the appellant had limited leave to remain granted to her as the partner of a person who at the time himself had only limited leave to remain as a refugee. At the moment when she made her application for temporary relief under the DDV Concession, therefore, she could not bring herself within paragraph 1.2(b) of section E-DVILR, because her last grant of limited leave had not been to enable her to obtain access to public funds pending an application under section DVILR. Miss Farbey’s response was that, if the appellant had been granted temporary relief, she would satisfy paragraph 1.2(b), but that amounts to no more than saying that the grant of temporary relief would enable the appellant to satisfy an essential condition of her eligibility for temporary relief. In other words, the argument is circular.[11]In my view when considering an application under the DDV Concession for temporary relief the Secretary of State must ask herself whether, as things stand at the date of the application, the applicant would on the face of it be able to meet the requirements of section DVILR. If it is clear that she would not, the Secretary of State is entitled to refuse relief. That does not involve construing section E-DVILR by reference to the concession; it simply involves asking oneself whether, if the applicant were to make an application for indefinite leave to remain, she could satisfy the terms of the section. In the present case it was clear that she could not do so and for that reason alone she cannot succeed in this case.[12]However, the matter does not end there, because in order to qualify for indefinite leave to remain the appellant would also have to satisfy the requirements of paragraph 1.3 of E-DVILR by showing that during her last period of limited leave as a partner her relationship with her partner broke down permanently as a result of domestic violence. This raises the question whether, in a case of a married woman, “partner” in this context means simply “spouse” or has the narrower meaning of “spouse settled in this country”. The judge held that it meant the latter, both because of the context in which the word is found and because he considered that the narrower meaning avoided the apparent circularity between paragraph 1.1(d) of section DVILR and paragraph 1.2(b) of section E-DVILR. He also considered that the more limited meaning better reflected the development of the policy, the purpose of which had been to assist foreign partners of persons settled in this country.[13]Miss Farbey submitted that the expression “partner” in paragraph 1.3 of section E-DVILR is unqualified and that therefore the expression was apt to include the appellant’s husband. She also submitted that the judge had been wrong to have regard to the history of the policy and the DDV Concession, neither of which was referred to in either of the sections under consideration.[14]I accept that in order to give the word “partner” a narrower meaning in this case than the entirely general definition to be found in section GEN 1.2 (iv) it must be possible to point to something in the context which indicates that that is what was intended. The judge considered that, viewed in the context of section E-DVILR as a whole, in particular paragraph 1.2(a), the word was intended to have the same meaning in paragraph 1.3 as it has in the earlier paragraph. I agree. Paragraph 1.2(a) refers to the applicant’s “last grant of limited leave as a partner of a person settled in the UK”. That is the only other reference to a partner in section E-DVILR and sets the context for what follows. In my view it provides a clear indication that the word “partner” in paragraph 1.3 is intended to bear the same meaning. I do not myself think that any apparent circularity between paragraphs 1.1(d) of section DVILR and paragraph 1.2(b) of section E-DVILR can be resolved by adopting a narrower construction of the word “partner”; that must be achieved by construing the provisions themselves. It does, however, provide an additional reason for rejecting the appellant’s application in this case. Nor do I think that it is necessary to have regard to the history of the DDV Concession in order to reach what I consider to be the correct interpretation of the rules in this case. It follows that in my view the appellant would not be able to satisfy this requirement of section E-DVILR either.[15]I have a good deal of sympathy for the appellant, whose application for temporary relief, and in due course indefinite leave to remain, must fail because she obtained limited leave to remain only a few months before her husband obtained indefinite leave to remain and so became settled here. However, for the reasons I have given I would dismiss the appeal.

Lord Justice Longmore :

[16]I agree.

Lady Justice Macur :

[17]I also agree.

Cited in 3 later judgments