Immigration rules: extending domestic violence protection to refugees

Case name: R (A) v Secretary of State for the Home Department

The wife of a refugee was granted temporary leave to remain in the UK. When domestic violence forced her to leave her husband, immigration rules meant she was no longer eligible for indefinite leave to remain. Had her partner been a British citizen or had settled immigration status, she would still be eligible for indefinite leave to remain under the Home Office’s domestic violence concession. However, the concession did not apply to partners of refugees. The woman unsuccessfully challenged the rules in the Court of Session (Outer House), and brought an appeal to the Court of Session (Inner House).

Legal issue

Challenge to immigration rules and the domestic violence concession.

Background

The wife of a refugee arrived in the UK under the family reunion scheme and was granted four years’ leave to remain. Domestic violence forced her to leave her husband. Had she stayed in the relationship she would have been eligible for indefinite leave to remain after the four years. She applied for refugee status in her own right but was refused and instead given three years’ discretionary leave to remain. She later applied for indefinite leave to remain. This was also refused because immigration rules say that to be eligible as a spouse you must still be in that relationship. Had she entered the UK as the spouse of a British Citizen or someone with settled immigration status, she would have been eligible to apply for leave to remain under the domestic violence concession.

Why we were involved

Ensuring that equality and human rights laws are upheld in institutions is a priority for us. We were concerned the Home Office’s domestic violence concession amounted to sex discrimination because it has a disproportionate impact on women as the primary victims of domestic violence. We wanted to see the concession extended to offer greater protection to the partners of refugees.  

What we did

We intervened in the case in the Inner House of the Court of Session, which is when we provide expert advice on the issues that the court is considering. We said that eligibility for indefinite leave to remain must not compel domestic violence victims to stay in their relationship. We also highlighted that female refugees are disproportionately affected by domestic violence, and argued that the discrimination in the rules was unlawful.

What happened

The court agreed the immigration rules amounted to sex discrimination. The decision to refuse the woman’s indefinite leave to remain was quashed. Following this judgment the Home Office changed the immigration rules so that partners of refugees are now eligible to apply for indefinite leave to remain.

Who will benefit and how

This case means that refugees’ partners now have the same rights as those married to people with settled immigration status. As the primary victims of domestic violence, the case enhances protection for women and serves as a reminder to institutions that policies related to domestic violence disproportionately affect women.

Date of outcome