T v Secretary of State for the Home Department  EWHC 2453 (Admin); (2014) PLLR 099
Queen’s Bench Division, Administrative Court, Dingemans J
22 July 2014
An individual who entered the country as the spouse of a person without citizenship or indefinite leave to remain does not qualify for the Destitute Domestic Violence Concession.
(1) The claimant, the spouse of a person with refugee status, sought judicial review of the defendant’s refusal to grant her access to the Destitute Domestic Violence Concession on the grounds that she was not the spouse of a British citizen or someone present and settled in the UK.
(2) The claimant’s husband was granted refugee status in November 2007 with 5 years’ leave to remain. The claimant was granted entry clearance to the UK in July 2012 as the post flight spouse of a refugee, and was granted leave to enter on 10 August 2012. On 31 December 2012, the claimant’s husband applied for indefinite leave to remain (ILR), which he was granted on 6 February 2013.
(3) The claimant became the victim of unlawful domestic and sexual violence. The court found she is entitled to the usual reporting restrictions and is identified in this judgment as T.
(4) The claimant was accommodated at an emergency shelter on 19 February 2013 and on 26 February 2013, she applied for the Destitute Domestic Violence Concession. Her application was refused on the same day on the grounds that the programme did not apply to her.
(5) The claimant made a further application for the concession on 25 April 2013, and was rejected by written letter on 30 April 2013. The reason given for the decision was that the claimant arrived in the UK with entry clearance as a post flight spouse of a person with limited leave to remain. The defendant stated the Concession only applies to the spouse, civil partner, unmarried or same sex partner of someone present and settled in the UK under part 8 or appendix FM of the Immigration Rules.
(6) The defendant argued the policy is meant to ensure that victims of domestic violence do not have to remain in abusive relationships when their partners are permanent residents, but that a person who comes as the dependent partner of someone without indefinite leave to remain cannot have an expectation of having a permanent life in the UK.
(7) The present judicial review was filed on 28 May 2013. The main issue before the court was the proper interpretation of the Immigration Rules HC 395 Appendix FM DV-ILR and E-DVILR.
(8) The claimant argued that the proper interpretation of the rules is to provide a general discretion to the defendant to permit people in the claimant’s position to apply for public funds and indefinite leave to remain.
(9) The defendant argued that there is no such general discretion and that people in the claimant’s position are excluded from applying for ILR under the domestic violence provisions.
(10) HELD: The application was dismissed.
(11) As a preliminary matter, the court found that it would not be possible for the claimant to show that the defendant had acted irrationally in creating its policy.
(12) The court also found that interpretation of the Immigration Rules is an objective exercise, and that the subjective intention of the rule maker is irrelevant; that words have their plain meanings; and that the Secretary of State may not rely on extraneous material to support a harsher interpretation of policies than the ordinary language would suggest.
(13) The court omitted evidence proffered by the defendant explaining the purpose of the policy, as the subjective intention of the policymakers is not permissible evidence.
(14) The court accepted that a person would be eligible for entry into the E-DVILR programme if the relevant relationship broke down permanently as a result of domestic violence during the last period of limited leave when living as a partner.
(15) It was common ground that the claimant could not bring herself within E-DVILR paragraph 1.2(a), as her husband was not settled in the UK at the time of her last grant of limited leave. The court accepted that there are policy reasons to differentiate between those who are granted leave as spouses of British citizens and settled persons and those who are not based on the legitimate expectations of being able to stay in the UK.
(16) The court considered whether the claimant is entitled to make a claim for public funds pending the determination of an application under DVILR, pursuant to para 1.2(b), which permits a person whose last grant of limited leave was granted to enable access to public funds pending an application under DVILR. If the claimant would never be allowed to make a successful application, she would not qualify.
(17) There is no general discretion under E-DVILR paragraph 1.2(b) to provide public funds to a person in the Claimant's position. The claimant could not be granted access to public funds if she was never going to make a successful application for DVILR, which the court held she could not on the basis that her partner was not a British citizen or settled person at the time of her last leave to remain.
(18) There is therefore no basis on which to quash the Defendant's decision to deny her the benefits.
 – Anonymity  – Irrationality in forming policies - – Interpretation of Immigration Rules  – Admissibility of evidence explaining a policy  – Legitimate expectations - – Interpretation of E-DVILR  – Foreign partners  – Interpretation of E-DVILR  – Conclusion