A. v. Secretary of State for the Home Department

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 38

P1025/14

Lady Paton

Lady Dorrian

Lord Drummond Young

OPINION OF THE COURT

delivered by LADY DORRIAN

in the Reclaiming Motion

by

A

Reclaimer;

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent:

Reclaimer: Dean of Faculty, Ms Irvine; Drummond Miller LLP

Respondent: Webster; Office of the Advocate General

27 May 2016

Background

[1] The petitioner is a Ugandan national. On 1 July 2009 the petitioner's husband, also a Ugandan national, was granted refugee status in the UK on the grounds of fear of persecution for reasons of political opinion, and granted 5 years leave to remain until 30 June 2014. His current immigration status is unknown, although the petitioner believes him to have applied for, and been granted, indefinite leave to remain in the UK ("ILR").

[2] The petitioner's husband having been granted leave to remain in the UK as a refugee, she applied for a visa for herself and four of their children to join him. Leave which may be granted under such a visa reflects that of a type and for a period equivalent to that granted to the refugee himself. On 22 July 2010, a family reunion visa was granted for the petitioner and her three youngest children, with leave to remain until 30 June 2014. The family were reunited in Glasgow in late 2010.

[3] The petitioner and her husband separated on 6 November 2011, following an assault on her by him which had been the culmination of a series of verbal and physical abuse. She remained in Glasgow, where her three children are in full-time education, at school or university. The petitioner has enrolled at college and avers that since moving to Glasgow she has made a number of close friends, several of whom supported her during the domestic abuse suffered by her.

[4] In November 2011 the petitioner claimed asylum and humanitarian protection based upon imputed political opinion as a result of her husband's political activities, and threat from his family in Uganda as a result of her having left him. Her claims were refused on 26 April 2012, but she was granted discretionary leave to remain on the basis of family life until 25 April 2015. The decision letter accepted that she was a victim of domestic violence.

[5] On 20 January 2014, the petitioner applied for ILR as a victim of domestic abuse. That application was refused on 17 February 2014. It was considered that the petitioner failed to meet the requirements of the immigration rules for a grant of leave to remain as a victim of domestic violence, on the basis she was not the spouse of a British citizen or an individual settled in the UK. However, on the basis of their private and family life, the petitioner and her children were granted further discretionary leave to remain, until 16 February 2017.

[6] In her petition for judicial review, the petitioner sought reduction of the decision of 17 February 2014 and declarator that the relevant section of the Immigration Rules (E-DVILR1.2) was ultra vires of the Secretary of State, in that in excluding from its scope spouses or former spouses of refugees, it unlawfully discriminated directly against such spouses, in violation of articles 14 and 8 of the ECHR, contrary to section 6 of the HRA 1998. The rule was also indirectly discriminatory against women who were the spouses or former spouses of refugees, on the basis that women were more likely to be the victims of domestic violence.

The Immigration Rules

[7] The spouse (or partner) of someone who has been granted refugee status in the UK may apply for leave to remain in, or enter, the UK as a partner. They may do so under the family reunion scheme, as did the reclaimer, or they may do so under separate rules which provide for a grant of limited or indefinite leave to remain as a partner under Appendix FM of the rules.

Family Reunion Visa

[8] As noted in rule 339R, the family reunion scheme is contained in rules 352A to 352FJ of the Immigration Rules. The important point to note for present purposes is that the permission is granted to the spouse or dependent children in terms of different paragraphs of the scheme. So far as a spouse is concerned, the leave granted is referred to as leave to enter or remain as the spouse or civil partner of the refugee. The leave will be granted for the same duration as the leave granted to the refugee. The respondent had averred that the reclaimer "has never held limited leave to remain in the United Kingdom as a spouse or partner of any kind". That averment was not insisted upon in argument. It had been made at a time when her exact status had not been clear, and it was accepted that the leave granted to her under the family reunion scheme was leave as the spouse of a refugee.

Appendix FM

[9] The provisions for limited or indefinite leave to remain contained within this appendix apply not only to the partners of refugees but to the foreign partners of British Citizens or persons settled in the UK. For the purposes of Appendix FM a "partner" is defined as a spouse, civil partner, fiancée or proposed civil partner, or someone who has been living with the applicant in a relationship akin to marriage or civil partnership, unless a different meaning of partner applies elsewhere in the appendix. Section GEN.1.1 of the Appendix notes that the purpose of its provisions is to create a route to settled status for non‑nationals seeking to enter or remain in the UK on the basis of their family life with a person who is a British Citizen, is settled in the UK, or is in the UK with limited leave as a refugee or a person granted humanitarian protection. A spouse or partner of someone within the latter categories may apply for permission to enter or remain in the UK as a partner. Provided that the other relevant conditions are satisfied, a qualifying person may be eligible for leave to remain which may be indefinite (ILR) or for a limited period. An applicant who meets the requirements will be granted limited leave to remain for a specified period, and subject to certain financial conditions, will be eligible to apply for settlement after a continuous period of at least 60 months with such leave. "Settlement" in these circumstances means ILR as a partner. In the most general terms, a person who, through this route, has obtained limited leave to remain as a partner and has completed a continuous period of at least 60 months with that leave, will be granted indefinite leave to remain.

Victims of domestic violence
[10] Generally, for a grant of ILR as a partner, the relationship must still be subsisting. However, specific provision is made for the grant of ILR to victims of domestic violence, notwithstanding that they had separated from their spouse. The provisions have since been amended but at the time of the decision in this case essential eligibility requirements, so far as relevant to the current proceedings, were that the last grant of limited leave must have been as a partner of a British Citizen or a person settled in the UK, and that evidence was produced to show that during that last period of limited leave the relationship broke down permanently as a result of domestic violence. Where all the relevant requirements were met the applicant would be granted indefinite leave to remain as a victim of domestic violence.

[11] The domestic violence provisions were first introduced into the rules in 2002. Prior to that, the Secretary of State had from 1999 operated a concession in relation to victims of domestic violence. At both dates, the phrase "a British Citizen or a person settled in the UK" would have included reference to a refugee, since, until 2005, an individual whose refugee status was recognised by the UK government was immediately given ILR, thus becoming "a person settled in the UK". The foreign spouse of a British Citizen or a person settled in the UK would initially be granted leave to enter for a probationary period before they would be entitled to apply for ILR. This was initially 12 months, appeared to increase to 24 months and is now 5 years. At the end of the probationary period, the spouse could apply for settlement (ILR). If, for whatever reason, the marriage broke down during that probationary period, settlement would normally be refused, since the fundamental reason for admission in the first place - to continue or commence family life - no longer existed. However, it was recognised that this put the victim of domestic violence in an invidious position. As the Parliamentary Under-Secretary of State for the Home Department put it when the issue was debated in the House of Commons (Hansard, 24 June 1998, vol 314, cols 1023-30):

"When the overseas spouse becomes the victim of domestic violence during her first year here, she faces the prospect either of staying within that violent relationship or of being refused settlement if she escapes from it, because the marriage would then be no longer subsisting."

He went on to say:

"Paragraph 35 of the Select Committee report sets out the problem graphically. It says: Some black and ethnic minority women may be particularly inhibited from reporting domestic violence because of the provisions of immigration legislation. In essence, a spouse of a person who is present and settled in the United Kingdom is admitted to this country for an initial period of 12 months. During that period, she or he may not have any recourse to public funds, and, if the marriage breaks down, is liable to deportation. If a woman with this immigration status is the victim of domestic violence, as the Southall Black Sisters told us, she is likely to be fearful of using either the criminal or civil justice system because she realises that she is at risk of being required to leave the country, and believes that the authorities will take action against her. Consequently, her choice is stark-she must risk her physical safety or risk deportation, and she will not even have the opportunity to use the social security system if she needs refuge accommodation. …… The report went on to conclude: We recommend that the Home Office inquire further into the scale of the problem, and consider what changes in IND practice might be appropriate to accommodate cases of genuine hardship whilst avoiding any collusion or deception intended to circumvent the Immigration Rules."

The Under-Secretary added:

"We want to ensure that we comply with the Select Committee's recommendation. We need to consider the nature of the problem, which involves a relatively small number of women. We must create mechanisms that prevent the exploitation of any gap in the immigration rules, and, at the same time, deal with the problem of domestic violence."

It was against that background that the concession was introduced, disapplying to victims of domestic violence the requirement to have completed the full "probationary" period of residence before an application for ILR could be made. At that stage therefore, the spouse of a refugee whose marriage broke down during the probationary period as a consequence of domestic violence would be able to qualify for ILR under the concession. To obtain such status they no longer required to continue living with an abusive spouse during the whole of the probationary period.

[12] In a written answer introducing the concession (16 June 1999), the Parliamentary Under-Secretary of State for the Home Department said;

"We have decided to introduce a concession, which will be outside the Immigration Rules, for overseas spouses who wish to remain in the United Kingdom, but who wish to leave their partner because of domestic violence before completion of the 12 month probationary period. ………… An applicant whose marriage breaks down during the probationary year as a result of domestic violence may be granted indefinite leave to remain exceptionally, outside the Immigration Rules, provided the domestic violence occurred while the marriage was subsisting and the applicant is able to produce (evidence)."

[13] At the time when the concession was first incorporated into the rules (26 November 2002), the Minister for Citizenship and Immigration explained, in a written ministerial statement, that

"The domestic violence concession was introduced on 16 June 1999 in an effort to help foreign spouses or unmarried partners who wish to leave their partner because of domestic violence before completion of the probationary period. "

[14] The form in which the concession was introduced to the rules in 2002 applied to the spouse or unmarried partner of individuals who were "present and settled in the UK". Until the introduction of the 5 year initial limit of leave for a refugee introduced in 2005, an individual in the position of the reclaimer would have been entitled to claim ILR as a victim of domestic violence, since (a) she had been granted leave to remain as a spouse or partner (albeit under rule 352A rather than Appendix FM) and (b) her husband would have been a person settled in the UK.

The Lord Ordinary's opinion
[15] The Lord Ordinary concluded that the reclaimer's status as a spouse of a refugee with limited leave to remain in the UK rendered her a potential beneficiary of the provisions of article 14, if treated differently from those in other similar situations, and provided that the facts fell within the ambit of one or more of the rights and freedoms safeguarded by the convention. He was in fact satisfied that the facts of the case came within the ambit of article 8. He therefore addressed himself to the question whether, if the treatment were discriminatory, it had an objective and reasonable justification. He asked himself the question: "Does it pursue a legitimate aim and is there a reasonable relationship of proportionality between the means employed by the policy behind Appendix FM and the aims sought to be realised?" Contracting States enjoyed a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justified different treatment, and unless the policy applied was manifestly without reasonable foundation, the courts would generally respect it. The rules in question had been debated in and approved by Parliament, calling for considerable caution before a court would be justified in holding a measure passed in such circumstances to be unlawful. Spouses of British citizens or persons settled in the UK had a legitimate expectation of being allowed to remain indefinitely in the UK. The spouses of those with limited leave to remain had no such expectation "as their leave to remain is precarious and may be brought to an end, for example, by a cancellation, cessation or revocation of the refugee status". The case of Rodrigues da Silva, Hoogkamer v the Netherlands (2007) 44 EHRR 34, indicated that it was also relevant that the family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of family life within the host State would from the outset be precarious. The Lord Ordinary thus concluded that:

"While there is no doubt that under section E‑DVILR.1.2 non‑national spouses of persons with refugee leave are treated less favourably than the spouses of British citizens and persons with settled status, the State is entitled to pursue the aim of regulating immigration for the maintenance of economic and social order, and to determine where the line should be drawn. I am unable to hold that drawing the line where it is drawn by section E‑DVILR is without objective or reasonable justification. A policy which grants a concession to those who already have a right to but denies it those (sic) who do not have that right is comprehensible and cannot be said to be irrational. In the light of the opinion in Rodrigues da Silva I cannot say that the provisions of the section are disproportionate. I conclude therefore that there is no room for the intervention of the court on the very limited basis available to it."

[16] The Lord Ordinary added that, had he been deciding in favour of the petitioner, he would have restricted his decision to reduction of the decision and would not have granted the declarator sought, the relevant rule being no longer in force.

The grounds of appeal

[17] The reclaimer maintains that the Lord Ordinary erred in:

1. adopting a "rationality" test: rationality is a minimum condition for proportionality but is not the whole test.
2. applying an overly deferential standard of review when considering the margin of appreciation and proportionality; relying on a weak form of Parliamentary scrutiny; and applying the "manifestly without reasonable foundation" test to the proportionality question.
3. assessing the reasonable expectation of settlement which may be held by a refugee, wrongly equiparating the position of a refugee with an illegal entrant.
4. failing to determine whether the measure was indirectly discriminatory on the ground of sex: if so, in the absence of a justification the petitioner would have been bound to succeed.
5. failing to assess both the aim and the effects of the measure.
6. refusing to grant declaratory relief.

[18] The position of the respondents was that the Lord Ordinary had been entitled to decide as he did, on the basis that any discrimination (which was not admitted) was reasonably justified. The Immigration Rules distinguished between those joining partners who had a right to live permanently in the UK, and partners who had not such right. Those in the former category may well have loosened or severed ties with their country of origin, in the expectation of living permanently in the UK. That consideration did not apply to those in the latter category, who could have no such expectation, and who would be aware that they might have to leave the UK. The reclaimer fell into that latter category, having come to the UK when her husband held only limited leave to remain.

[19] The affidavit in which the rationale for the policy is set out, notes that the domestic violence provisions enable the partner of a British Citizen or someone with indefinite leave, but who has been the victim of domestic violence to apply for immediate indefinite leave, adding :

"4. The rationale behind the provisions is that these individuals will have come to the UK in the knowledge that their UK based partner already has a right to live permanently in the UK. It is reasonable for them to expect to have their future and their permanent home with their partner in the UK, so from the outset they may well loosen or cut their ties with their country of origin. The domestic violence provisions mean that someone who has come to the UK on this basis and who is the victim of domestic violence should not feel compelled to remain in the abusive relationship for the sake only of qualifying for indefinite leave.

5. Their position is therefore different from individuals who have come to the UK as the partner of someone who does not yet have settled status, but is here to work or study or as a refugee. There is no guarantee that someone here on a temporary basis will, at the end of the temporary leave, be in a position to apply for indefinite leave to remain or will wish to do so. They may well choose, or be required, to leave the UK when their leave ends or their purpose for being in the UK comes to an end and any dependants will be expected to leave with them. Their dependant 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. It is therefore reasonable to expect them to have retained links and ties with another country and to be prepared to leave the UK should the relationship, which is the reason for their presence, break down."

Submissions

[20] The court was furnished with written submissions on behalf of the reclaimer and the respondent. In addition, on 23 December 2015 Lady Smith granted leave to the Commission for Equality and Human Rights to enter process as interveners and to lodge a written submission not exceeding 5000 words, which was also before the court.

Submissions for reclaimer

[21] On behalf of the reclaimer, the Dean of Faculty submitted that underlying the domestic violence provision was the intention that a person within those provisions who had come to the UK as a spouse and been subjected to domestic violence should not feel compelled to remain in an abusive relationship for the sake only of qualifying for indefinite leave. It had as its aim the moral and physical integrity of victims of domestic violence, which regrettably bore disproportionately on women. In particular, statistics showed that refugee migrant women were more at risk than those who have always lived in the UK. The difference in treatment was that the benefit of the rule accrued only to the spouses of a British Citizen or person settled in the UK, and did not apply to a spouse who had come to the UK to join her refugee husband, and whose marriage broke down as a result of domestic violence. Such a woman must either stay in the abusive relationship, or lose her leave to remain in the UK, contrary to the rationale upon which the provision was based.

[22] The justification advanced for the difference in treatment, concerning the reasonableness of the spouse of a British Citizen or person settled in the UK to expect to have a permanent home in UK, was one which would apply equally to the spouse of a refugee. The position of the spouses of refugees had been wrongly contrasted with that of the spouses of those who had come to work/study in the UK and who thereby should have no such expectation. Paragraph 5 of the statement in which the justification is given equiparated a refugee without settled status with someone in the UK to work or to study. That equiparation illustrated that the line had not been drawn in the right place. Someone who came to the country to work or study was plainly in the country on a temporary basis, and was in a different position from a refugee. The justification set out in the statement suggested that the particular position of refugees had not been considered.

[23] The factual position was that unless one of limited grounds for withdrawal of refugee status, or expulsion, was made out, a refugee could expect to remain in the country after the 5 year period. The figures showed that 95% of refugees, at end of 5 years, were granted ILR.

Refugee status

[24] The starting point for consideration of the status of a refugee was that they had suffered from a well-founded fear of persecution in their own country. Refugees were admitted pursuant to the UK's international obligations under the Refugees Convention (Geneva 28 July 1951; New York 16 December 1966) and also as a matter of EU law under the Qualifications Directive 2004/83/EC. In effect a refugee had a right to asylum. In that respect a refugee was quite different from someone permitted to enter the country by choice to work or study.

[25] Refugee status was declaratory in nature. It was not a status bestowed by the state - if the status of refugee existed the state had to recognise it by the grant of asylum.

Further, the state had a positive obligation to facilitate the naturalization and assimilation of refugees under article 34 of Convention:

"Article 34

Naturalization

The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings."

[26] This recognised as a matter of international law that it was reasonable for refugees to expect to have their future and home in the refugee state as long as they have that status. Of course the status of refugee could be lost, but the circumstances in which that could happen were limited. The refugee might effectively give up the status, for example by re-availing himself of the protection of his country of nationality; or the circumstances which led to recognition of this refugee status might have changed (article 1C of the Convention). Other than where there were grounds for considering that an individual was a danger to the security of the country, or to the community by virtue of committing a particularly serious crime, a refugee could not be expelled from the country of refuge (article 33 of the Convention). These provisions were reflected in the terms of the Immigration Rules, but they indicated that the status of refugee was not comparable to that of a student or worker. Refugees were individuals to whom the state owed obligations under international and European law and unless the status were lost under article 1C, or the individual expelled under article 33, might reasonably be expected to proceed to assimilation under article 34.

[27] Once an individual's refugee status had been recognised, he or she was likely to proceed to settlement in the UK. The same could be said of their dependents. This was made clear in the Government's Asylum Policy Instruction (1 October 2013), which explained:

"1.2 Background

A person who has been recognised as a refugee or person in need of HP [Humanitarian Protection] will usually be granted five years limited leave to enter or remain along with any dependants included in the initial claim or before the decision is made. During that period of leave, they can apply for family reunion or ask for any children born to them in the UK to be granted leave in line. When their leave is due to expire, they should apply for ILR for themselves and any dependants.

Settlement provides permission to stay in the UK permanently and freedom from immigration control. However, in specific circumstances, an application for settlement can be refused. This is when a person:

► is liable to deportation or administrative removal;

► has obtained leave by deception;

► ceases to be a refugee or person in need of HP because of their own actions

► fails to meet the requirements of the immigration rules for settlement as a refugee or

person with HP".

The policy intention was stated in that document as being to provide a route to settlement in the UK:

"1.3 Policy intention behind settlement protection

The underlying policy objective when considering applications for settlement from refugees and those with HP is to:

►Ensure that the UK's obligations under the European Convention on Human Rights (ECHR) and the Refugee Convention are met where there is a continuing need for protection and provide a route to settlement in the UK;…"

As a matter of international obligation and practical expectation, whilst they may initially have a 5 year grant, unless one of a limited number of grounds applied, they would thereafter move to settled status.

The Domestic Violence Rule

[28] There was a very obviously compelling reason for the domestic violence concession, to prevent someone requiring to stay in an abusive relationship out of concern only for their immigration status, as was made clear during the discussion at the time of introduction of the concession. That concession was not framed specifically under reference to refugees, but in applying to the spouse of someone who was a British Citizen or person settled in the UK, it would have applied equally to the spouse of a refugee, since at the time of the concession, and the introduction of the rule, a refugee would have been given settled status. That the concession and the rule does not now apply to refugees seems to have been an unintended consequence of the introduction of the 5 year rule in 2005, when there appears to have been no consideration of the side-effect which this might have on the spouses of refugees who were subjected to domestic violence after coming to this country.

[29] That domestic violence had a disproportionate effect on women, especially migrant women, was commented upon in the Scottish Government's "Statistical Bulletin: Domestic Abuse Recorded by the Police in Scotland, 2010-2011 and 2011 - 2012" (30 October 2012) which noted that the percentage of incidents of female victims and male perpetrators in reported cases of domestic violence was in the region of 80%. The statistics in England and Wales were somewhat lower: about 66%. The Istanbul Convention on preventing and combating violence against women and domestic violence (May 2011, signed by the UK but not ratified) recognised this imbalance: in its preamble:

"Recognising that women and girls are exposed to a higher risk of gender‐based violence than men;"

[30] In relation to residence status, article 59 provided that:

"1 Parties shall take the necessary legislative or other measures to ensure that victims whose residence status depends on that of the spouse or partner as recognised by internal law, in the event of the dissolution of the marriage or the relationship, are granted in the event of particularly difficult circumstances, upon application, an autonomous residence permit irrespective of the duration of the marriage or the relationship. The conditions relating to the granting and duration of the autonomous residence permit are established by internal law."

Whether the status of a refugee or the spouse of a refugee is "precarious"

[31] The Lord Ordinary considered it relevant that family life had been created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of family life within the host State would from the outset be precarious. He did so under reference to the case of Rodrigues da Silva, a completely different situation where a relationship had developed when an immigrant was living in the country illegally. The case of Jeunesse also referred to by the respondent was similar, involving someone who had overstayed on a tourist visa. Such cases were a long way removed from the present case.

Legal issues arising

[32] It had not been disputed that the circumstances of the present case fell within the ambit of article 8 of the ECHR, as the Lord Ordinary found. In relation to article 14, the Lord Ordinary concluded that:

"...the petitioner's status as a spouse of a refugee with limited leave to remain in the UK in my view renders her a potential beneficiary of the provisions of article 14 if she is treated differently by the State from those in otherwise similar situations."

As to the issue of a comparator, the Lord Ordinary noted (para 20):

"I am content to follow these dicta, but nevertheless would have felt able to say that the treatment of the petitioner under Appendix FM might reasonably be compared with the treatment of victims of domestic violence whose partners are British citizens or persons settled in the UK."

[33] The rule in question drew a distinction between the spouse of a British Citizen or a person settled in the UK, and the spouse of a refugee, but that distinction had no reasonable justification. The basic approach to the question of justification could be seen in the case of R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] 1 WLR 3820 in the judgment of Lady Hale at paragraph 33:

"With those considerations in mind, I turn to the issue of justification. It is now well-established in a series of cases at this level, beginning with Huang v Secretary of State for the Home Department [2007] 2 AC 167, and continuing with R (Aguilar Quila) v Secretary of State for the Home Department (AIRE Centre intervening) [2012] 1 AC 621, and Bank Mellat v HM Treasury (No 2) [2014] AC700, that the test for justification is fourfold:

(i) does the measure have an legitimate aim sufficient to justify the limitation of a fundamental right; (ii) is the measure rationally connected to that aim; (iii) could a less intrusive measure have been used; and (iv) bearing in mind the severity of the consequences, the importance of the aim and the extent to which the measure will contribute to that aim, has a fair balance been struck between the rights of the individual and the interests of the community?"

[34] The exclusion of the spouse of a refugee was not rationally connected to the aim specified in para 4 of the policy statement quoted in paragraph [19] above, produced, which focused on expectation of permanence and the severing of ties. Neither of these factors justified the exclusion of refugees. Nor was it justified to bracket refugees with students or workers. Such an approach failed to recognise the international obligations underpinning the status of refugees and the relative prospect of permanent settlement.

[35] Counsel referred to the judgment of Lord Reed in the case of R(SG) v The Secretary of State for Work and Pensions [2015] 1 WLR 1449 as to the circumstances in which a breach of article 14 may be found:

"7 The general approach followed by the European Court of Human Rights in the application of article 14 was explained by the Grand Chamber in Carson v United Kingdom (2010) 51 EHRR 369, para 61:

'in order for an issue to arise under article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations. Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.'

8 A violation of article 14 therefore arises where there is: (1) a difference in treatment, (2) of persons in relevantly similar positions, (3) if it does not pursue a legitimate aim, or (4) if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.

9 In practice, the analysis carried out by the European Court of Human Rights usually elides the second element -the comparability of the situations- and focuses on the question whether differential treatment is justified. This reflects the fact that an assessment of whether situations are "relevantly" similar is generally linked to the aims of the measure in question: see, for example, Rasmussen v Denmark (1984) 7 EHRR 371, para 37."

[36] On the question of comparing refugees with those on a work/study visa it was important to note that discrimination may arise from a failure to recognise the difference between those categories, Lord Reed having gone on to say:

"12 Article 14 is not confined to the differential treatment of similar cases: 'Discrimination may also arise where states without an objective and reasonable justification fail to treat differently persons whose situations are significantly different': Pretty v United Kingdom (2002) 35 EHRR 1,para 88. An example is the case of Thlimmenos v Greece (2000) 31 EHRR 411, where this type of discrimination was first recognised."

[37] In Hode & Abi v UK (2013) 56 EHRR 27 the court noted (para 52) that:

"… a difference in treatment has no objective and reasonable justification if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject matter and the background. A wide margin is usually allowed to the state under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature's policy choice unless it is "manifestly without reasonable foundation."

[38] Although this was an area in which the Strasbourg Court allowed States a margin of appreciation, this was different from the question of how much regard should be given in domestic law to the choices exercised by government in determining the intensity of review to be applied in assessing the justification advanced. That matter was context dependent and it was well recognised that when dealing with provisions regarding the bestowing of financial benefits, the national court should take a relatively light touch. This, however, was not a case for such a light touch. Reference was made to Mathieson v Secretary of State for Work & Pensions [2015] 1 WLR 3250, where Lord Wilson noted (para 25):

"In the Stec case 43 EHRR 1017 the Grand Chamber proceeded at para 52 to address the margin of appreciation which it should afford to the UK in relation to its social security provisions and held that it should generally respect its policy choices in that area unless they were "manifestly without reasonable foundation"; by application of that principle, it concluded that the challenges failed. Of course it does not necessarily follow that the domestic judiciary should afford a margin of equal generosity to the domestic legislature: In re G (Adoption: Unmarried Couple) [2009] AC 173, para 37 (Lord Hoffmann). Indeed this court has at last helpfully recognised that the very concept of a "margin of appreciation" is inapt to describe the measure of respect which, albeit of differing width, will always be due from the UK judiciary to the UK legislature: In re Recovery of Medical Costs for Asbestos Diseases (Wales) Bill [2015] AC1016, paras 44-54 (Lord Mance JSC)."

[39] Lord Sumption in R (Lord Carlile of Berriew) v The Secretary of State for the Home Department [2014] 3 WLR 1404 put it thus:

"29 However, traditional notions of the constitutional distribution of powers have unquestionably been modified by the Human Rights Act 1998. In the first place, any arguable allegation that a person's Convention rights have been infringed is necessarily justiciable. Section 6 of the Act requires public authorities, including the courts, to give effect to those rights. Secondly, the jurisprudence of the European Court of Human Rights calls for a standard of review of the proportionality of the decisions of public authorities which is not only formal and procedural but to some extent substantive. As Lord Bingham put it in R (SB) v Governors of Denbigh High School [2007] 1 AC 100, para 29:

'The focus at Strasbourg is not and has never been on whether a challenged decision or action is the product of a defective decision making process, but on whether, in the case under consideration, the applicant's Convention rights have been violated… The unlawfulness proscribed by section 6(1) is acting in a way which is incompatible with a Convention right, not relying on a defective process of reasoning, and action may be brought under section 7(1) only by a person who is a victim of an unlawful act.'"

[40] It follows, as he went on to point out, at para 30, that

"The court's approach to an issue of proportionality under the Convention must go beyond that traditionally adopted to judicial review in a domestic setting. The inadequacy of that approach was exposed in Smith and Grady v United Kingdom (1999) 29 EHRR 493, para 138, and the new approach required under the 1998 Act was described by Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, paras 25-28, in terms which have never to my knowledge been questioned. There is no shift to a merits review, but the intensity of review is greater than was previously appropriate, and greater even than the heightened scrutiny test adopted by the Court of Appeal in R v Ministry of Defence, Ex p Smith [1996] QB 517, 554. The domestic court must now make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time…."

[41] The court therefore had to exercise a different approach to that of Wednesbury but alive to the appropriate weight which must be given to the constitutional role of Parliament.

[42] The Lord Ordinary had concluded that:

"22 Unless the policy is manifestly without reasonable foundation the courts will generally respect it.

24 A policy which grants a concession to those who already have a right to but denies it those who do not have that right is comprehensible and cannot be said to be irrational."

[43] In saying this, the Dean submitted, the Lord Ordinary erred in treating the test of manifest unreasonableness or rationality as the touchstone for his decision. Ultimately the balancing act which required to be carried out was one for the court itself. The phrase "manifestly without reasonable foundation" was a phrase from European jurisprudence, picked up in Humphreys v Revenue and Customs Commissioners [2012] 1 WLR 1545 a case concerning child tax credit. In that case, manifest unreasonableness was relied upon as the sole test, but the observations in that case had to be read subject to the decision in In re Recovery of Medical Costs for Asbestos Diseases [2015] 2 WLR 481, where Lord Mance (para 52) carefully analysed when the test might be appropriate, indicating that it was not appropriate at the fourth proportionality stage of the exercise. The analysis of Lord Mance carefully separated out the question of whether the aim was manifestly without reasonable foundation, retaining to the court the ultimate balancing of the proportionality test. Counsel noted however, that even as the UKSC was considering the Medical Costs case, it was considering the case of R(SG) in which it applied the manifestly without reasonable foundation test to the question of justification (para 11). In Tigere the court was sharply divided, Lady Hale holding that this test did not require to be applied, but Lords Reed and Sumption firmly disagreeing. However, counsel submitted that this apparent difference of view was of little effect, since even applying the higher test the difference in treatment could not be justified, for the following reasons:

1. This was a case within the ambit of A8 not A1P1 with which Humphreys and other benefits cases were concerned.

2. The nature of the discrimination. The difference in treatment was applied in the capacity of spouse but also had the practical effect of differentiating on grounds of sex, given the disproportionate effect on women of domestic violence. In the context of A14 justification, one had to take into account both the aim and the effect of the measure. This was a measure with the practical effect of affecting women more than men: where the discrimination affected such a core issue, justification would be all the more difficult to maintain. Reference was made to the judgment of Lord Wilson in Mathieson v The Secretary of State for Work and Pensions [2015] 1 WLR 3250, at para 21.

3. The primary decision maker has not specifically addressed the issue: it appears to be an unintended side effect of the introduction of the 5 yr rule. No specific consideration was given to the position of refugees.

4. The parliamentary process the rules had gone through was not particularly strong. Although the court had to accord appropriate respect to the fact that these were rules made by the Home Secretary and laid before Parliament, the level of respect to apply was far from the highest. When first introduced, there was an affirmative vote on Appendix FM; and when the rule was changed it was by negative resolution. Reference was made to MS v Secretary of State for the Home Department [2013] CSIH 52 where Lord Drummond Young (in an opinion mistakenly attributed to Lord Mackay of Drumadoon) observed:

"21 There has been some debate about the precise status of the new rules: see R (Nagre) v Home Secretary, supra , at paragraphs 25 et seq. The rules are not a statute but merely a statement by the executive of how it intends to exercise powers conferred by statute. Consequently the application of the rules in individual cases is potentially subject to judicial review. Nevertheless, the new rules have been debated in Parliament, which confers a certain degree of democratic approval. Moreover, they are instructions put forward by the minister in a democratically elected government who is charged by statute with the administration of the immigration system. To that extent, too, the rules can be said to result from democratic processes. These are factors which must be given some weight when a court considers the application of the rules, although they cannot be conclusive because the rules do not have the force of statute."

5. The justification in the affidavit and statement (paragraph [19] above] did not address the particular features of refugee status. The court did not have a considered reason or considered explanation for the exclusion of persons falling within this category from the benefit of the rule. The explanation offered did not stand scrutiny. The absence of engagement in the justification with the particular position of a refugee or his spouse, was compounded by reliance in these proceedings on cases relating to illegal migrants and overstayers and the erroneous proposition that a refugee's status was "precarious". The spouse of a refugee fell squarely within the underlying reason in paragraph 4 that it was reasonable to expect them to loosen or cut ties with their country of origin and that they may reasonably expect to have a future in the UK. When addressing the question of fair balance the court should bear in mind that the effect of the rule was to exclude the spouse of the refugee from the route to ILR under the domestic violence concession, even though the refugee may well, and probably will benefit from that ILR. The abuser got the benefit, and his spouse, who had left by reason of domestic abuse, was deprived of it.

[44] As to remedy there was a question whether the court should grant declarator under a rule which had been superseded. However, because it appears that the policy remained the same, it may be helpful for the court to grant a declarator in the terms sought.

Submissions for the respondent

Policy justification

[45] Counsel for the respondent referred to the justification for the policy as being that contained in paras 4 and 5 of the statement quoted in paragraph [19] above, which was before the Lord Ordinary and had been accepted in R(T) v Secretary of State for the Home Department [2014] EWHC 2453.

Refugee status
[46] A refugee was not given an automatic, unqualified or unlimited right to remain in a host state. The Refugee Convention (Convention Relating to the Status of Refugees, Geneva, 28 July 1951) provided both for circumstances in which the Convention might cease to apply (article 1C) and afforded the host state a right of expulsion (article 32). The Immigration Rules provided for a grant of limited leave to remain, usually for five years, for those to whom the respondent has decided to grant asylum. That policy had been held to be lawful (R (Algeria) & Ors v Secretary of State for the Home Department [2006] EWHC 3513 Admin).

Discrimination

[47] Any reliance upon article 14 had to be made in conjunction with an alleged breach of another protected right, and a difference in treatment would not be discriminatory if it had an objective and reasonable justification (Stec v UK (2006) 43 EHRR 47). The emphasis was not on a direct comparator but on whether differences in otherwise similar situations justified different treatment (AL (Serbia) v Secretary of State for the Home Department [2008] 1 WLR 1434). Reference was again made to the judgment of Lord Reed in R (SG) paras 8 & 9. Without concluding that the treatment was discriminatory against any identified comparator, the Lord Ordinary proceeded to consider whether, if it were discriminatory, it had an objective and reasonable justification.

Justification and the standard of review

[48] Respect for Parliament's function called for considerable caution before the courts would hold to be unlawful that which was within the ambit of Parliament's review (Bank Mellat v HM Treasury (No 2) [2014] AC 700; Mathieson, para 51). Appendix FM was laid before Parliament in terms of section 3 of the Immigration Act 1971 and was the subject of debate and approval.

[49] The European Court of Human Rights accorded to contracting states a wide margin of appreciation in social and economic policies (James v UK (1968) 8 EHRR 123), meaning that the state was entitled to make policy choices which may be controversial (R (RJM) v Secretary of State for Work & Pensions [2008] UKHL 63 [2009] 1 AC 311). Those policy choices should be respected unless manifestly without reasonable foundation, including in cases of indirect sexual discrimination (Stec; Humphreys v HMRC [2012] 1 WLR 1545; R (MA) v Secretary of State for Work & Pensions [2014] EWCA Civ 13).

[50] The margin of appreciation allowed by Strasbourg in social and economic areas was such that the ECtHR would generally respect the legislature's choice unless it was manifestly without reasonable foundation. Counsel relied heavily on paragraphs 15-20 of Humphreys to submit that this was the standard of review to be applied domestically, including in cases of discrimination. In such cases one looked not at the difference of treatment but at the aim upon which it had been created. Here the aim was to treat spouses of settled persons differently from the spouses of those who were not settled, and this was the context in which the court required to consider the matter. In the Medical Costs case, the court had indicated that the margin of appreciation was not applicable in a domestic context, and the fact that a measure fell within the margin of appreciation was not conclusive of its proportionality, although it remained relevant to that issue. As Lord Nicholls had observed in Wilson v First County Trust Limited No 2 [2004] 1 AC 816:

"The court is called on to evaluate the proportionality of the legislation, not the adequacy of the minister's exploration of the policy options or his explanations to Parliament."

[51] It is not for the court to evaluate the sufficiency of the legislative process leading up to the enactment. Parliament may apply a different level of scrutiny to different types of measure, but that is a matter for Parliament. Consideration of a qualified right, such as article 8, required the court to be less astute to find disproportionality. A lesser degree of judicial activism was justified in the case of a policy which had been promulgated in a manner consistent with democratic principles. The practical effect of the quality of judicial scrutiny will depend on context. As Lord Sumption said in R (Lord Carlile) (para 34):

"In particular, it will depend on the significance of the right, the degree to which it is interfered with, and the range of factors capable of justifying that interference, which may vary from none at all (article 3) to very wide ranging considerations indeed (article 8). But the legal principle is clear enough. The court must test the adequacy of the factual basis claimed for the decision: is it sufficiently robust having regard to the interference with Convention rights which is involved? It must consider whether the professed objective can be said to be necessary, in the sense that it reflects a pressing social need. It must review the rationality of the supposed connection between the objective and the means employed: is it capable of contributing systematically to the desired objective, or its impact on the objective arbitrary? The court must consider whether some less onerous alternative would have been available without unreasonably impairing the objective. The court is the ultimate arbiter of the appropriate balance between two incommensurate values: the Convention rights engaged and the interests of the community relied on to justify interfering with it. But the court is not usually concerned with remaking the decision-maker's assessment of the evidence if it was an assessment reasonably open to her. Nor, on a matter dependent on a judgment capable of yielding more than one answer, is the court concerned with remaking the judgment of the decision-maker about the relative advantages and disadvantages of the course selected, or of pure policy choices (eg do we wish to engage with Iran at all?). The court does not make the substantive decision in place of the executive. On all of these matters, in determining what weight to give to the evidence, the court is entitled to attach special weight to the judgments and assessments of a primary decision-maker with special institutional competence."

[52] In that case, and in Bank Mellat the court recognised that, although the degree of restraint to be practised by courts domestically applying the principle of proportionality, and the extent to which they would respect the judgment of the primary decision-maker would depend on context (Lord Reed, Bank Mellat para 71) nevertheless in areas of policy of the kind under consideration in the present case, considerable respect required to be given to the policy choices made by government. In R (SG) the majority had decided that for the purposes of an article 14 claim the legislature's choice in relation to general measures of economic or social policy should be respected unless manifestly without foundation. In that case Lord Reed had observed:

"92 Finally, it has been explained many times that the Human Rights Act 1998 entails some adjustment of the respective constitutional roles of the courts, the executive and the legislature, but does not eliminate the differences between them: differences, for example, in relation to their composition, their expertise, their accountability and their legitimacy. It therefore does not alter the fact that certain matters are by their nature more suitable for determination by Government or Parliament than by the courts. In so far as matters of that nature have to be considered by the courts when deciding whether executive action or legislation is compatible with Convention rights, that is something which the courts can and do properly take into account, by giving weight to the determination of those matters by the primary decision-maker.

93 That consideration is relevant to these appeals, since the question of proportionality involves controversial issues of social and economic policy, with major implications for public expenditure. The determination of those issues is pre-eminently the function of democratically elected institutions. It is therefore necessary for the court to give due weight to the considered assessment made by those institutions. Unless manifestly without reasonable foundation, their assessment should be respected."

[53] Even if the consequence of a measure was discrimination on the ground of gender, there might nevertheless be a reasonable justification for it. It was necessary to respect the fact the Government, through Parliament, had to make difficult choices. The focus of the assessment had to be informed by the aim or objective for which the policy was introduced, rather than the practical consequence. It was for the executive to say where the balance should lie.

[54] The state was entitled to draw "bright lines" when making policy of this kind, in the interests of a workable system (Mathieson; R (Carson) v Secretary of State for Work & Pensions [2006] 1 AC 173; R (Animal Defenders International) v Secretary of State for Culture, Media & Sport [2008] AC 1312;). As Lord Bingham observed at paragraph 33 of that latter case:

"A general rule means that a line must be drawn, and it is for Parliament to decide where. The drawing of a line inevitably means that hard cases will arise falling on the wrong side of it, but that should not be held to invalidate the rule if, judged in the round, it is beneficial."

[55] Article 8 did not afford to those in relationships the right to choose where they live, nor does it oblige a state to grant the partners of refugees a right to remain (Rodrigues da Silva, Hoogskamer v Netherlands (2007) 44 EHRR 34; Jeunesse v Netherlands (2015) 60 EHRR 17; R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin).

[56] Immigration rules were within the primary responsibility of the executive and the fact that there may be an adverse effect on certain groups, including gender groups, may be no more than an unavoidable consequence. The reclaimer was not herself a refugee. The spouse of a refugee may properly be compared with the spouse of a worker or student who has been given limited leave to remain in the UK, and for whom there was no guarantee of ILR. The spouse was at one stage removed from the primary individual - refugee, student, worker. The primary individual may elect not to maintain their immigration status, a refugee may return to his home country, or the circumstances there may have changed. Over and above that the status may be lost: individuals who joined asylum seekers with limited leave to remain knew that at some point the ability to continue to reside would undoubtedly come under the scrutiny of the state - that was the "certain uncertainty" of their position. If they did find themselves in an abusive situation, they were more likely to be able to leave and re-establish such ties as they had in their state of origin. That was to be contrasted with the position of the spouse of a settled person or citizen who did not have that certain uncertainty, and who was more likely, with a view to fulfilling the settled status held by the spouse, to cut ties with the country of origin. The state recognised that such individuals were in an invidious position if the marriage broke down through domestic violence. To prevent a situation where they could only stay in the country by remaining in the abusive relationship the Home Secretary introduced into the rules the domestic violence concession. There was no manifestly unreasonable justification for drawing the line where it had been drawn. This uncertainty of position of those granted 5-year leave was commented on by David, J in R (Algeria) v Secretary of State for the Home Department [2006] EWHC 3513 (Admin), when the 5-year policy was introduced:

"23 There was debate before me as to the true significance of the differences between five years' initial leave to remain and indefinite leave to remain. The most important difference, as it seems to me, from the perspective of the refugee, is that it gives rise to a lack of certainty, in that if the situation in the country of origin has improved in that time, the refugee is liable to be required to be returned there."

[57] Counsel for the reclaimer had sought to emphasise that the term "precarious" had been used in cases of illegal immigrants or overstayers, but the word was not to be equiparated with illegality. Although an individual's presence in the host country might be described as "unlawful" the word used to describe the commensurate immigration status of such a person was not "unlawful" but "precarious", suggesting that the two words were not being used inter-changeably- see, for example, para 39 of Rodrigeur da Silva. Furthermore, by amendment in 2014 of the 2002 Act Parliament had introduced a requirement for the court to attach little weight to the effect of family life established in such circumstances. Section 117B provides that in relation to public interest considerations:

"Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious"

[58] In Deelah v Secretary of State for the Home Department [2015] UKUT 00515 (IAC) one of the issues raised was whether:

"The adjective "precarious" in section 117B(5) of the 2002 Act does not contemplate only, and is not restricted to, temporary admission to the United Kingdom or a grant of leave to remain in a category which permits no expectation of a further grant."

McCloskey, J said:

"30. I consider that Mr Malik's submission is confounded in any event by the decision of the Upper Tribunal in AM at [19] - [33], AM (S117B) Malawi [2015] UKUT 260 (IAC), at [19]-[33] and, in particular, the conclusion enshrined in [32]:

'To put the matter shortly, it appears to us that a person's immigration status is "precarious" if their continued presence in the UK will be dependent upon their obtaining a further grant of leave. It is precisely because such a person has no indefinite right to be in the country that the relationships they form ought to be considered in the light of the potential need to leave the country should that grant of leave not be forthcoming'

Judges and practitioners should be constantly alert to this clear and concise formulation of the principle of "precariousness". More recently, in BM and Others (Returnees - criminal and non-criminal) DRC CG [2015] UKUT 00293 (IAC), the Upper Tribunal stated, in the context of a person who had been granted limited leave to enter and remain in the United Kingdom after making an asylum claim, at [107](v):

'Section 117B(5): We find that this Appellant's immigration status in the United Kingdom was at all material times precarious. All of his attempts to establish a stable, secure status in the United Kingdom were unsuccessful. It follows that the private life which he has developed in the United Kingdom qualifies for the attribution of little weight.'

31. The argument that in the Strasbourg and domestic jurisprudence a precarious immigration status generally equates to unlawful residence was not developed by reference to any decided cases. Furthermore, it is not easily reconciled with the Appellant's principal contention, formulated in [3](iv) above. In addition, in Jeunesse v the Netherlands (Application No. 12738/10), the Grand Chamber stated that the Applicant's residence in the Netherlands during a 17 year period - which, on the facts of her case, could not be described as anything other than precarious - was unlawful: see [102]. She was an alien whose presence was "tolerated" by the host state: see [103]. The precarious nature of her presence emerges clearly in the succeeding passage:

"Confronting the authorities of the host country with family life as a fait accompli does not entail that those authorities are, as a result, under an obligation … to allow the applicant to settle in the country. The court has previously held that, in general, persons in that situation have no entitlement to expect that a right of residence will be conferred upon them …".

[Emphasis added].

As the case references which follow demonstrate, there is clear and consistent Strasbourg authority to this effect. See, for example, B v Sweden (Application No. 57442/11).

32. I consider that the word "precarious" is an unsophisticated, unpretentious member of the English language. It denotes generally, something which is unstable, uncertain, fragile. It describes a state of affairs, condition or status which is bereft of guarantees and security. It is the antithesis of something which is stable, secure, certain. This is its ordinary and natural meaning. In deciding whether a person's immigration status is "precarious", the application by the court or tribunal concerned of this ordinary and natural meaning will focus on the nature, quality and reality of such status.

33. Giving effect to the principles and approach outlined above, I conclude unhesitatingly that in enacting these statutory provisions it was the intention of the legislature that a person who is granted limited leave to enter and remain in the United Kingdom as a student is possessed of an immigration status which is precarious. Such status regulates the life, arrangements and affairs of the person concerned for a measured period of time and with no assurance of continuation or extension. It does not extend beyond the short or medium term. Its effect is to convey to the beneficiary from the outset an unequivocal message, or admonition, that permission to reside in the United Kingdom for the permitted purpose and complying with all of the stipulated conditions will expire on a specified date, or sooner in certain eventualities. The immigration status of every such person is, in my view, both captured and defined by the adjective "precarious". Furthermore, Parliament has made a clear and deliberate distinction between those unlawfully present in the United Kingdom and those whose presence derives from a precarious immigration status. The suggestion that Parliament has legislated in a manner which treats unlawful immigration status as synonymous with precarious immigration status is confounded by the clear statutory language and has no jurisprudential underpinning which was brought to the attention of the Tribunal. I reject all of Mr Malik's arguments accordingly. For this combination of reasons the fourth ground of appeal must fail."

[59] It was not the legality but the absence of an entitlement to expect a further grant which created the precariousness. The government's policy reflected that difference in the character and status of a person already settled in the country, and one who was not, and informed the attitude taken to the likelihood of the spouse being in a position to return if the relationship turned abusive. As such it could not be said to be manifestly without a reasonable foundation.

The Lord Ordinary
[60] In paragraph 21 of his opinion the Lord Ordinary, regarding the treatment of the reclaimer, asked himself: "Does it pursue a legitimate aim and is there a reasonable relationship of proportionality between the means employed by the policy behind Appendix FM and the aims sought to be realised?", showing that he understood the nature of the issue and that he required to consider both the questions of legitimate aim and proportionality. He considered the justification advanced; and the weight which might be afforded to family life created at a time when the immigration status of one of the persons was precarious. He concluded that drawing the line where it had been drawn was not without reasonable or objective justification, and that not only was that not irrational, it was proportionate.

Remedy
[61] In the event that the reclaimer were successful, declarator was unnecessary and inappropriate (Mahmood v Secretary of State for the Home Department [2005] CSOH 54; Boum v Secretary of State for the Home Department [2006] CSOH 111; Mathieson, paras 49 and 61).

Written Submissions for the Commission for Equality and Human Rights

[62] In their written submissions the CEHR submitted that the correct approach to review in a case such as the present was that identified in Medical Costs by Lord Mance at para 45, namely a four stage proportionality test under which the court must decide for itself (a) whether there is a legitimate aim; (b) whether the measure is rationally connected to that aim; (c) whether the aim could have been achieved by a less intrusive measure; and (d) whether, on a fair balance, the benefits of achieving the aim by the measure outweigh the benefits resulting from the restriction of the relevant protected right.

[63] The margin of appreciation was not applicable at the domestic level, and the fact that a measure was within a national legislature's margin of appreciation was not conclusive of proportionality, although the national court must attach appropriate weight to informed choices at each stage of the convention analysis (Medical Costs, para 54).

[64] The factors relevant when assessing the margin of discretion accorded to the legislature included: the extent to which the matter was one of broad economic or social strategy; the nature of the complaint, particularly if it was one of alleged discrimination; the vulnerability of the group in question; the blanket nature of the criterion; the extent to which the decision was the result of a democratic process, in respect of which there was a spectrum with primary legislation at one end, and the decisions of unelected officials at the other: in the present case there was no evidence that Parliament addressed the issue of persons falling into the situation of the reclaimer; and the quality of the decision-maker's review of the material - a lack of consideration significantly narrowed the margin of discretion. The focus was on the discriminatory effect of a measure and not the scheme as a whole. In considering whether the measure in question discriminated against the spouses of refugees on the grounds of sex, international conventions or treaties relating to the treatment of women were relevant. Of particular relevance are: the Convention on the Elimination of All Forms of Discrimination against Women, adopted by the UN General Assembly in 1979 and ratified by the UK on 7April 1986 (CEDAW); the UN Declaration on the Elimination of Violence against Women (UN General Assembly RES/48/104); and the Istanbul Convention.

[65] The CEDAW committee has recognised that violence against women, including domestic violence, is a form of discrimination against women. The Istanbul Convention required states to take legislative or other measures to protect all victims from further acts of violence. The international materials illustrated the breadth and extent of the State's positive duties towards victims of domestic violence.

Decision

[66] The aim of the measure in question is said to be that the spouses of those settled in the UK should be treated differently from the spouses of those without that status. The rationale for doing so is that the former are likely to have a reasonable expectation of settlement in the UK, and thus to have cut or loosened their ties with their country of origin in that expectation, whereas the spouses of the latter could have no such expectation, and would be less likely to cut or loosen those ties. In asserting that rationale, the respondent equiparates the position of refugees with those granted work or study leave. We do not accept, as a matter of fact, that this is a sound equiparation. A person admitted to the country as a student or for work is very clearly someone admitted on a limited and temporary basis, entirely at the discretion of the state. The status of refugee, as has been pointed out, is declaratory. Once it has been determined to exist the state has no discretion, in terms of its international and humanitarian obligations, but must grant asylum. The worker or student enters the country by choice; the refugee out of necessity. The circumstances in which refugee status may be lost are extremely limited, and can in no reasonable way be compared to the situation applying to a worker or student. Once refugee status is acknowledged, international obligations require the state to facilitate assimilation and naturalisation, again a situation quite different from that of a worker or student. Accordingly, whilst we accept that it is not reasonable for the spouses of students or workers to have any reasonable expectation of having their future and a permanent home in the UK, and that such spouses are less likely to cut or loosen their ties with their country of origin than the spouses of British Citizens or persons with settled status, we cannot accept that this applies equally to the spouses of refugees. One can readily see that the spouse of a worker or student can have no reasonable expectation of having their future life or a permanent home in the UK, and that they would not be expected to cut or loosen their ties with their country of origin. The same cannot be said of the spouse of a refugee. A refugee is not in this country as a matter of choice or selection in the way that a student or worker may be: they have been admitted to the country because they have a well-founded fear of persecution in their own country. The idea that the spouse of such a person might be any less likely "from the outset to loosen or cut their ties with their country of origin" seems to us to be fanciful. Such an approach ignores several aspects of the reality of the position of a refugee.

[67] Statistical material before the court (which was not disputed by the respondent) indicates that some 95% of refugees granted 5 year limited leave to remain are granted ILR at the end of the 5 year period. That accords with the view of the AIT quoted in para 47(17) A (Afghanistan) v Secretary of State for the Home Department [2009] EWHC Civ 825 that:

"…while refugee status is said to be subject to 'active review' at this point, in practice indefinite leave is nearly always granted".

[68] The justification fails to recognise the factors which we have just mentioned: namely, that although refugee status may be lost, or a refugee expelled, the grounds upon which either might occur are significantly limited, not simply as a matter of domestic law, but as a matter of international law; and the effect of article 34 of the Refugee Convention.

[69] Accordingly unless the status of refugee is lost in terms of article 1C, or there are grounds for expulsion in terms of article 33, a refugee can reasonably expect to proceed to assimilation and naturalisation under article 34 and to ILR. Proceeding to settlement at the end of the 5 year period is very much the rule, rather than the exception. These considerations in our view indicate that the position of a refugee is in no way to be equiparated with that of a student or worker, and the spouse of a refugee corresponds much more closely to the spouse of a British Citizen or person settled in the UK.

[70] Insofar as the Lord Ordinary accepted that a refugee could be equiparated with someone in the UK on a work or study visa, and considered that the spouse of a refugee was not entitled to have any reasonable expectation of proceeding to have a future life and permanent home in the UK, we consider that he misdirected himself.

[71] The Lord Ordinary considered it relevant that family life was created at a time when the immigration status of one of the parties was such that family life within the host state would from the outset be precarious. We accept the submission of counsel for the respondent, as observed in Deelah, that "precarious" does not mean "unlawful" but we do not consider that this advances his argument. We would observe that in none of the cases cited to us in which the term "precarious" has been applied was that term applied to the immigration status of a refugee with 5-year limited leave to remain. Family life established by a refugee pre-flight and which lawfully subsists post-flight cannot be compared to family life established post-flight and in the full knowledge that one of the parties has no right to stay at all. The respondent relied heavily upon the observations of McCloskey J in Deelah but (a) the observations were obiter, since the issue was held not to arise; (b) the case related to a student; and (c) the analysis at paras 32 and 33, whilst appropriate to a student/worker, does not apply equally to refugees, largely for the reason we have already given.

[72] Although in R (Algeria) Davis J recognised that the 5-year initial limited leave introduced in 2005 gave "rise to a lack of certainty, in that if the situation in the country of origin has improved in that time, the refugee is liable to be required to be returned there", he went on to add:

"24 As against that, as pointed out by Mr Otty QC appearing on behalf of the Secretary of State, it is fundamental to the new policy that a refugee will not be liable to be returned unless the situation in his home country has sufficiently changed on a "significant and non-temporary basis" so as to render it safe to do so. It is said that such a decision to return would call for the appropriate objective country information; that each case would be reviewed on its own merits; and further that there would be the potentiality for appeals and for the raising of any Article 8 points in individual cases that may have arisen. Overall, it is submitted, and I agree, that the grant of five-year leave to enter or remain, subject to further review, is significant and valuable protection."

[73] This "significant and valuable protection" is an important consideration: the fact that the position of a refugee may come under review may indeed introduce a degree of uncertainty, compared to the secure position of a settled individual, but that is not by any means to say that his position must therefore be considered "precarious". We consider that insofar as the Lord Ordinary appears to have considered that the immigration status of the reclaimer's husband was "precarious" he was in error.

[74] Rule 339B of the Immigration Rules provides:

"When a person's refugee status is revoked or not renewed any limited or indefinite leave which they have may be curtailed or cancelled"

[75] It will be seen therefore that the respondent's arguments as to the "certain uncertainty" of position relative to a refugee with limited leave to remain would apply to a settled refugee, yet the spouse of the latter could obtain the protection of the domestic violence concession, whilst the spouse of the former could not. In our view this significantly weakens the respondent's argument, making it very difficult to justify the difference in treatment on the basis which has been advanced.

[76] The history of the provisions shows that when introduced as a concession, and when initially that concession was included in the rules, it applied equally to the spouse of a refugee as to the spouse of a citizen. The difference in treatment arose not directly under these provisions, but as a consequence of the introduction, in 2005, of a policy granting in the first place a 5-year limited leave to refugees. The effect of that change was that refugees would not acquire settled status until after the expiry of that period, and hence until then their spouses would be excluded from the operation of the domestic violence concession. The reasons for the policy change in 2005 were examined in R (Algeria) v Secretary of State for the Home Department [2006] EWHC 3513 (Admin):

"20 On 19 July 2005 there was a written ministerial statement by Mr Tony McNulty, Minister for Immigration, Citizenship and Nationality, in the course of which he said this: 'I am also announcing today that from 30 August onwards refugees will be granted five years limited leave in the first instance, rather than immediate settlement as at present. If there is a significant and non-temporary change in conditions in a country, we would consider whether this should, in line with the Convention's cessation clauses, trigger a case by case review of the position of all or some refugees from that country with limited leave …'

21 There were no formal changes to the Immigration Rules at this time to give effect to the new published policy. In the event, on 25 August 2005 there was issued a guidance note by the Immigration and Nationality Appeals Directorate as operational policy guidance headed:

'Changes to Refugee Leave and Humanitarian Protection from 30 August 2005'".

That guidance note included the following passage:

"Family reunion and other benefits

The change to the period of leave being granted will not affect refugees' other rights. They will still be entitled to family reunion, travel documents and to use the welfare state/NHS, as they are now. Family reunion rights will be extended to those who are granted leave on Humanitarian Protection grounds on or after 30/8/05. These people will now be able to be joined by their spouses, minor children etc on the same terms as are available to refugees."

[77] The guidance note indicated that those who had been granted leave as a refugee would be subject to review of their claims if, during their initial 5-year leave, Ministers were satisfied that there had been a "significant and non-temporary change in the conditions in their country". It went on to observe that:

"If that happens, then a decision will be taken on whether they still qualify for asylum/HP and, if they do not, their leave will be curtailed so that no leave remains. Any such curtailment would attract a right of appeal. However, a person who ceases to qualify for asylum or HP may qualify for leave on some other basis (for instance on article 8 grounds, in which case DL may be appropriate). In such cases, leave will be varied rather than removed altogether."

[78] The guidance note recorded that leave would also be reviewed or curtailed where the refugee had brought himself within the cessation provisions, had acquired his status by fraud, or had committed a serious crime, noting that:

"However, provided this does not happen, and the person applies in time for further leave before his/her initial grant expires, s/he will be granted ILR/E provided s/he does not fall within the exclusion or cessation provisions of the Refugee Convention, and has not been convicted of a particularly serious crime, and provided his/her presence here is not otherwise deemed to be unconducive to the public good (see paragraph 5.4 of the API on Limited Leave or, for HP cases, para 2.5 of the API on HP for further details)."

[79] Neither in the explanation given in that case for the 2005 changes nor in argument before this court was any material or submission advanced to indicate that at the time of those changes any consideration had been given to the effect on the spouses of refugees who might otherwise have been able to avail themselves of the domestic violence concession. The concession was not framed specifically under reference to refugees, or their spouses, and it seems that no thought was given to the position of the spouses of refugees, who, until 2005, would have been entitled to seek to avail themselves of the concession. The justification advanced to the court did not address the considerations applicable to refugee status at all: there is no considered reason placed before the court for the exclusion of such individuals from the operation of the concession. No consideration was given to the question whether it would be appropriate to equiparate refugees and their spouses with workers/students and their spouses, and so remove them from the protection afforded by the concession. Equally, no consideration was given to whether the effect of the changes would be consistent with the underlying aim of the domestic violence concession that the victims of domestic violence should not be required to stay in an abusive relationship, or the extent to which it was consistent with the government's policy of supporting international measures aimed at the elimination of violence towards women. There was no material before us to suggest that it was the view of the government that there was an aim being pursued which was thought sufficiently important to justify regulations having this difference in treatment, including an effect which was not disputed as being indirectly discriminatory to women. There was ample material before us - which was not contested - to suggest that women are significantly more likely to be the victims of domestic violence than men are. Scottish Government figures for 2011-2012 indicate that 81% of recorded incidents of domestic violence involved a female victim and a male perpetrator. Statistics in England & Wales show a different balance, but one which is still indicative of a female victim/male perpetrator balance in two-thirds of cases.

[80] This is not in our view a case in which a policy choice on the critical question has in fact been made, with due consideration of the issues, looked at in the light of the government's policy both in relation to refugees and domestic violence. In the absence of any such choice or consideration, or any reasonable basis upon which a refugee could be equiparated to a worker/student, or the reasonable expectations of their spouses being as limited as those of the spouses of students/workers, and having regard to the effect on the spouses of refugees, as well as the underlying aim of the domestic violence concession, we cannot say that the difference in treatment is proportionate. The position of those such as the reclaimer has simply not been brought into consideration. The effect on them is not an informed choice made by government upon due consideration, but appears to be an unintended by product of the changes introduced in 2005. We do not require to examine in depth the issue of the standard of review, because we are satisfied, even on the application of the higher test of whether the justification is manifestly without foundation, that the justification must be found wanting. We fully agree that policy choices of government are deserving of significant respect and we would not demur from the application of such a test. We note, however the words of Lord Dyson in R (MA) v Secretary of State for Work & Pensions [2014] PTSR 584:

"60 I acknowledge that, despite the fact that we should (i) apply the manifestly without reasonable foundation test and (ii) exercise considerable caution before interfering with the scheme approved by Parliament, we are obliged to scrutinise carefully the reasons advanced by the Secretary of State in justification of his scheme: see the Humphreys case [2012] PTSR 1024, para 22 and R (Aguilar Quila) v Secretary of State for the Home Department (AIRE Centre intervening) [2012] 1 AC 621, paras 45, 46 and 61, per Lord Wilson JSC. That is particularly important since we are dealing with a vulnerable group (disabled persons) and the discrimination is closely connected with their disabilities"

[81] We also recall the comments of Lord Neuberger in R (RJM) v Secretary of State for Work & Pensions [2009] 1 AC 311 that the court should be slow to substitute its views for those of the executive:

"57 The fact that there are grounds for criticising, or disagreeing with, these views does not mean that they must be rejected. Equally, the fact that the line may have been drawn imperfectly does not mean that the policy cannot be justified. Of course, there will come a point where the justification for a policy is so weak, or the line has been drawn in such an arbitrary position, that, even with the broad margin of appreciation accorded to the state, the court will conclude that the policy is unjustifiable. However, this is not such a case, in my judgment."

[82] For the reasons given, even allowing full weight to the element of discretion to be accorded to the executive, we consider that this is a case in which the line has been drawn effectively by oversight, and where the justification advanced is weak to the extent of being unjustifiable. We accordingly allow the reclaiming motion and reduce the decision of the Secretary of State dated 17 September 2014 to refuse the petitioner's application for ILR. We have decided not to grant the declaratory sought, on the view that it is not necessary in this case.