T, R (on the application of) v Secretary of State for the Home Department [2014] EWHC 2453 (Admin)

Case No CO/6474/2013[2014] EWHC 2453 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 22/07/2014
Before
MR JUSTICE DINGEMANS
Between
R(on the application of "T")ClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Judith Farbey QC and Declan O'Callaghan (instructed by Ealing Law Centre) for ClaimantCathryn McGahey (instructed by Treasury Solicitors) for DefendantHearing Hearing date: 10 July 2014
JudgmentMr Justice Dingemans :Introduction
[1]This is a case which raises an issue about the proper interpretation of that part of the Immigration Rules which makes provision for foreign nationals living in the United Kingdom who become victims of domestic violence. Background[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. The Claimant is therefore entitled to the usual reporting restrictions and is identified in this judgment as “T”.[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”. Ms Robertson’s evidence[6]The evidence shows that the policy set out in the Immigration Rules is intended to ensure that victims of domestic violence are not required to remain in an abusive relationship. The witness statement from Ann Robertson, a policy manager employed by the Home Office in the Migration Policy Unit, explains that the policy is not available to persons who have not entered as partners of British citizens or persons settled in the United Kingdom. Ms Robertson said that this was because it is reasonable for partners coming to the United Kingdom, who know that their partner has a right to live permanently in the United Kingdom, to expect their permanent home to be in the United Kingdom. This means that they may well have loosened or cut their ties with their country of origin. However the same considerations do not apply to individuals who come to the United Kingdom as the partner of someone who does not have settled status in the United Kingdom. This is because there is no guarantee that someone here on a temporary basis, for example to study or as a refugee, will be in a position to apply for ILR or will wish to make such an application. Ms Robertson states “their dependent partners therefore cannot, and should not, have come to the UK with any expectation that the family would be making a permanent life here but with the knowledge that they may well be required to leave the UK with their partner at the end of his or her leave”.[7]The evidence showed that the domestic violence provisions were introduced into paragraph 298A of the Immigration Rules in 2002. This permitted eligible victims to apply for ILR. However some victims reported difficulties in leaving the abusive relationship because of a lack of financial resources. Representations were made by voluntary sector groups who offered temporary housing and support to victims of domestic violence, noting that they often relied on the housing benefit paid to victims to assist in meeting the running expenses. As a result in 2009 the Home Office funded what became known as the “Sojourner Project”. This provided support to refuges incurring costs supporting women referred to them. Only those eligible for ILR on domestic violence grounds were eligible for assistance under the Sojourner project.[8]Ms Robertson worked with the Department of Work and Pensions to find a long term solution to supporting vulnerable victims of domestic violence, and in April 2012 the DDV Concession was implemented. This concession is limited to partners of British citizens or persons settled in the United Kingdom who have been the subject of domestic violence.[9]Ms Robertson also stated that E-DVILR 1.2(b), which was the subject of much of the debate before me, “was included to make it clear that individuals who were admitted to the UK as a partner of a British citizen or someone with indefinite leave to remain did not lose eligibility to apply on domestic violence grounds simply because their last grant of leave was outside the Immigration Rules granted under the Concession rather than leave to enter or remain as a partner. The section is intended to preserve an existing eligibility, not create a new one”.[10]I will need to address the admissibility of Ms Robertson’s evidence about the intention of the policy below. The proceedings[11]The Claimant challenged the refusal to grant her application under the DDV Concession and the present claim for judicial review of the refusal was filed on 28 May 2013. During the course of these proceedings the Claimant’s leave to enter as a spouse has been curtailed and she has been granted leave outside of the rules (“LOTR”) with access to public funds. This LOTR was not under the DDV Concession. Permission to apply for Judicial Review was originally refused on the papers but was granted at a renewed oral hearing for permission to apply, since when there have been a number of directions hearings.[12]A previous hearing in May 2014 was adjourned because of continuing concerns about whether adequate disclosure had been granted by the Defendant. In the event the Defendant has lodged evidence, albeit late, and it is common ground that I should take into account the first but not second witness statement relied on by the Defendant. Issues[13]Although a number of grounds were advanced and responded to on the papers, it became clear at the hearing in oral submissions from Ms Farbey QC and Mr O’Callaghan on behalf of the Claimant and Ms McGahey on behalf of the Defendant, to whom I am grateful for their helpful submissions, that the issues had been refined.[14]The main issue now before me is the proper interpretation of that part of the Immigration Rules which deals with foreign victims of domestic violence. This is Immigration Rules HC 395 Appendix FM DV-ILR and E-DVILR. These Immigration Rules were approved by Parliament on 13 June 2012 and came into force on 5 July 2012.[15]The Claimant says that the proper interpretation of these rules is to provide a general discretion to the Defendant to permit persons in the Claimant’s position to apply for public funds and indefinite leave to remain. The Defendant says that properly construed there is no such general discretion and that persons in the Claimant’s position are excluded from applying for ILR under the domestic violence provisions. It is common ground that if the Claimant is right about the existence of a general discretion then the relevant decision, namely the decision in the letter dated 30 April 2012, should be quashed on the basis that the Defendant has not exercised any such general discretion.[16]I should record that the Claimant had a number of other challenges to show that the decision dated 30 April 2012 would have been unlawful if the Claimant was right about the proper interpretation of the Immigration Rules. This included the fact that the Defendant had operated her policy inflexibly, and had not sought Parliamentary approval for the inflexible operation of her policy. However all of these grounds depended on the Claimant’s analysis of the Immigration Rules as importing a general discretion being correct, and so added nothing to the main issue before me.[17]I should record that one of the proposed challenges in the proceedings had been to the DDV Concession on the basis that it was impermissibly narrow. Reference was made to criticisms to this effect from international organisations. However it was recognised that if the Immigration Rules, approved by Parliament, had the interpretation contended for by the Defendant, it would not be possible for the Claimant to succeed on this ground. This is because although other persons might rationally have taken a more generous approach to the making of provision for victims of domestic violence, it would not be possible to show that the Defendant had acted irrationally in making the policy. The Immigration Rule[18]The Immigration Rule is in Appendix FM and is headed “Victim of domestic violence”. It goes on to provide “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) [THIS PART IS NOT RELIED ON BY EITHER PARTY] … 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.

(c) [THIS PART IS NOT RELIED ON BY EITHER PARTY] …

[19]The Immigration Rules Appendix FM GEN 1.2 provides a definition of partner as follows:
“For the purposes of this Appendix “partner” means (i) the applicant’s spouse; (ii) the applicant’s civil partner; (iii) the applicant’s fiancé(e) or proposed civil partner; or (iv) 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 a different meaning of partner applies elsewhere in the Appendix.”
Relevant Principles of Interpretation of the Immigration Rules[20]The correct approach to construing the Immigration Rules has been considered in a number of cases including Pokhryal v The Secretary of State for the Home Department [2013] EWCA Civ 1568 at paragraphs 38 to 43.[21]It is established that the interpretation of the Immigration Rules is an objective exercise, and that the subjective intention of the rule maker is irrelevant. The Immigration Rules should not be construed with the strictness appropriate for a statute or statutory instrument, see Mahad v Entry Clearance Officer [2009] UKSC16; [2010] 1WLR 48 at paragraph 10. Immigration Rules should be construed “sensibly according to the natural and ordinary meaning of the word used, recognising that they are statements of the Secretary of State administrative policy”.[22]It can be assumed that administrative policies are likely to have been put forward and agreed on the basis that the words of the policy are given their ordinary meaning. This is because it is to be assumed that the policy maker means what is said by the policy. This mirrors assumptions about meaning of words made by the law in areas ranging from the interpretation of contracts to the meaning of defamatory words. The public law gloss is that there may also be a legitimate expectation that the policy means what it appears on an objective interpretation to say.[23]If there is an ambiguity in Immigration Rules and the Secretary of State publicly declares that she will adopt the more lenient interpretation then tribunals and courts may hold the Secretary of State to that assurance. However it is not possible for the reasons given in paragraph 43 of Pokhryal for the Secretary of State to rely upon extraneous material in order to persuade a court or tribunal to construe the rules more harshly or to resolve an ambiguity in the Government’s favour. This is because the Secretary of State holds all the cards and drafts the Immigration Rules and issues IDI’s and guidance statements and authorises the public statements made by officials. Rules can only be toughened up by making formal amendments and laying them before parliament, see R(Alvi) v Secretary of State for the Home Department [2012] UKSC 33; [2012] 1WLR 2208. The interpretation of the policy[24]Taking these principles it seems to me permissible to take into account the evidence of Ms Robertson about the way in which this policy was introduced, and has worked in practice to date, as well as the work on the Sojourner project and the implementation of the DDV Concession. In my judgment it is not permissible to take into account the evidence set out in paragraph 9 above, because this is evidence only of the Defendant and Ms Robertson’s subjective intention about what the wording of the rule was to achieve, and not part of the factual matrix in which the policy operated.[25]I turn then to the provisions of E-DVILR paragraph 1.2, because it is within this paragraph that it is contended that the general discretion is to be found. I note that paragraph 1.2(a), (b) and (c) are all disjunctive. This appears from the fact that between (b) and (c) there is the word ‘or’, and it became common ground in the submissions before me.[26]It is also common ground that the Claimant cannot bring herself within the provisions of E-DVILR paragraph 1.2(a). This is because the Claimant’s husband was not a British Citizen or a person settled in the United Kingdom at the time of her last grant of limited leave. Although the Claimant’s husband did obtain ILR and became a person settled in the United Kingdom, that was after the Claimant had been granted limited leave and shortly before she suffered from domestic violence. This could not therefore have affected her expectations of remaining permanently in the United Kingdom when she entered. I accept Ms Robertson’s evidence that there are policy reasons to distinguish between persons entering as the spouse of a British Citizen or a person settled in the United Kingdom who might have a legitimate expectation that the United Kingdom will be their home for good and who might sever ties to their home country, and a person entering to become the partner of a person who does not have such rights to remain. This is because it is apparent that such a person might have to return to their home country.[27]It is also common ground that E-DVILR paragraph 1.2(c) does not apply to the Claimant.[28]This means that the real issue then becomes whether the Claimant is entitled to make a claim for public funds pending the determination of an application under DVILR, pursuant to paragraph 1.2(b). As noted above paragraph 1.2(b) provides “The applicant’s last grant of limited leave must have been… b) granted to enable access to public funds pending an application under DVILR”. In these circumstances to determine whether paragraph 1.2(b) applies to the Claimant, it is necessary to consider whether the Claimant could make an application under DVILR. This is because the Claimant could not be granted access to public funds if she was never going to be able to make a successful application for DVILR.[29]It is common ground that it is therefore necessary then to consider DVILR 1.1, which provides the four requirements to be met for an indefinite leave to remain in the UK as a victim of domestic violence. These are:
“(a) the applicant must be in the UK”
. It is common ground that this was satisfied by the Claimant; “(b) the applicant must have made a valid application for indefinite leave to remain as a victim of domestic violence”. It is common ground that this meant a valid application in the sense of having filled in the form correctly, and it was plain that the Claimant would have been able to do this; “c) the applicant must not fall for refusal under any of the grounds in section S-ILR”. It is common ground that these refer to character provisions and that the Claimant satisfied these conditions; and finally “(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”.[30]The Claimant says that she meets all those requirements because she can come within the provisions of paragraph 1.2(b) and be granted leave to enable access to public funds pending an application to DVILR. The Defendant says that submission cannot be right for two reasons. First it creates an unending circularity which cannot be the proper construction of the provisions of paragraphs 1.1(d) and 1.2(b). Secondly the Claimant cannot meet the requirements of E-DVILR1.1 which provides, so far as is material “to meet the eligibility requirements for indefinite leave to remain as a victim of domestic violence all of the requirements of paragraphs E-DVILR1.2 and1.3 must be met”, and the Defendant submits that the Claimant cannot meet the requirements of E-DVILR 1.3.[31]E-DVILR 1.3 itself provides “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”. The Defendant submits that the Claimant cannot meet this provision because the word “partner” in E-DVILR 1.3 must be a reference to the meaning of partner in E-DVILR 1.2(a) (“a partner (other than fiancé(e) or proposed civil partner) of a British citizen or a person settled in the UK”), and the Claimant’s partner was not a British citizen or a person settled in the UK. The Claimant submits that the general definition of partner in Appendix FM should apply. This is “For the purposes of this Appendix “partner” means(i) the applicant’s spouse;(ii) the applicant’s civil partner;(iii) the applicant’s fiancé(e) or proposed civil partner; or(iv) 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 a different meaning of partner applies elsewhere in the Appendix”. The Claimant says that she is a partner within the meaning of that definition, and therefore satisfies E-DVILR paragraph 1.3. However the Defendant responds by saying that the general definition of partner makes it plain that “a different meaning of partner” may apply elsewhere, and that different meaning of partner is provided in E-DVILR 1.2(a). The Claimant also submits that if the Defendant’s construction was right paragraphs 1.2(a) and 1.2(b) would not be disjunctive, but cumulative.[32]I should record that in the course of submissions I wondered how the Claimant could meet the requirement of E-DVILR 1.3 if the Claimant was relying on the provisions of E-DVILR 1.2(b) because in such circumstances the Claimant’s last period of limited leave would have been to access public funds and she would not be able to 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” because the relationship would have broken down before the application for public funds had been made. This means that if the Claimant had been granted limited leave to enable access to public funds within the meaning of E-DVILR paragraph 1.2(b), the relationship would not have broken down in that period. Both Claimant and Defendant then submitted that the wording of paragraph 1.3 must mean “last period of limited leave [when living] as a partner”, adding the words in square brackets, otherwise the policy would not work to capture persons whose last application granted to access public funds. I am persuaded that this is the right approach of E-DVILR paragraph 1.3, because otherwise paragraph E-DVILR paragraph 1.2(b) would be meaningless. It does however make it clear that there are some difficulties with the drafting of this part of these Rules, but that is true of almost all documents.[33]In my judgment the answer to the question of interpretation is that E-DVILR paragraph 1.2(b) does not create a general discretion to permit foreign partners of persons who are not British citizens or persons settled in the UK to make an application for public funds, and for ILR as a victim of domestic violence. This is because the answer to whether the Claimant can bring herself within paragraph 1.2(b) which provides “The applicant’s last grant of limited leave must have been… b) granted to enable access to public funds pending an application under DVILR” depends on whether the Claimant could make an application under DVILR. This is because the Claimant could not be granted access to public funds if she was never going to be able to make a successful application for DVILR, and in my judgment the Claimant could not make a successful application for DVILR. This is because the Claimant cannot meet all the requirement of section E-DVILR, which was a requirement pursuant to DVILR 1.1(d).[34]The reason that the Claimant cannot meet all of the requirements of E-DVILR is because I am persuaded that the Claimant cannot meet the requirements of E-DVILR paragraph 1.3. This is because the term “partner” in E-DVILR paragraph 1.3 does mean “a partner” as defined in E-DVILR 1.2(a) (“a partner (other than fiancé(e) or proposed civil partner) of a British citizen or a person settled in the UK”), and the Claimant’s partner was not a British citizen or a person settled in the UK. I consider that the word “partner” in E-DVILR does have that meaning because paragraph 1.3 follows on from paragraph 1.2 and it would be surprising to see partner in paragraph 1.3 being used in a different context from the word in paragraph 1.2. This interpretation is consistent with the definition of partner in this part of the Immigration Rules, because the definition makes it plain that “a different meaning of partner” may apply elsewhere in the Appendix.[35]This interpretation is also supported by the fact that it avoids the circularity identified between E-DVILR paragraph 1.2(b) and DVILR 1.1(d) where the general discretion exists, on the basis that she is making an application for public funds, which she can only satisfy by making the application for public funds.[36]Finally I consider that such an interpretation is consistent with the relevant development of the history of the policy, which has been to treat foreign partners of persons who are either British citizens or settled in the United Kingdom differently from foreign partners of persons who do not have that status.[37]I do not consider that such a construction means that E-DVILR paragraphs 1.2(a) and 1.2(b) are now cumulative requirements. There are bound to be persons covered by paragraph 1.2(a) who have not needed to make an application for public funds, and therefore who cannot, and do not need, to satisfy paragraph 1.2(b). However persons in paragraph 1.2(b) will always have needed to satisfy paragraph 1.2(a), because of the wording of E-DVILR 1.3. Conclusion[38]For the detailed reasons given above I consider that there is no general discretion under E-DVILR paragraph 1.2(b) to provide public funds to a person in the Claimant’s position, and there is therefore no basis on which to quash the Defendant’s decision contained in the letter dated 30 April 2013. In the circumstances I dismiss the application for judicial review.