About this case:

• Citation:
  [2024] CSOH 31
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Richardson

The petitioner sought reduction of a decision of the Secretary of State for the Home Department that her claim was unfounded based on the visa she entered the UK on, thus denying her an appeal to the First-tier Tribunal against the refusal of her claim.

The petition was heard by Lord Richardson in the Outer House of the Court of Session. Halliday, advocate, appeared for the petitioner and Maciver, advocate, for the respondent.

Analogous situation

The petitioner initially entered the UK as the partner of a tier 2 migrant, with her husband acting as her sponsor and her immigration status dependent on their relationship. She alleged that from February 2020 she began to suffer domestic abuse at the hands of her husband, including forcing her to have sex with him under threat of him withdrawing his sponsorship of her.

On 30 April 2021, the petitioner applied for further leave to remain, while at the same time her husband applied for Indefinite Leave to Remain. His ILR application was granted, and as such on 22 June 2021 the petitioner’s application was amended to FLR as the spouse of a settled person. Shortly afterwards, she was informed by the respondent that her husband had withdrawn sponsorship.

The petitioner, now separated from her husband and in hotel accommodation provided by the Glasgow Health and Social Care Partnership, applied to vary her outstanding application to a human rights claim. The respondent refused her claim as unfounded on 9 March 2023 as she did not enter the UK in a category that would enable leave under domestic violence concessions. The letter made no reference to the change in her spouse’s visa status to that of a settled person.

It was argued by the petitioner that her removal would be disproportionate in terms of Article 8 ECHR as it would not achieve the legitimate aim pursued by the Immigration Rules. She was in an analogous situation to someone with leave to remain as the spouse of a settled migrant and there was no reasonable justification for treating her differently. From 4 June 2021, when her spouse was granted ILR, she had a reasonable expectation of settlement in the UK and of obtaining ILR herself.

Overlooked the fact

In his decision, Lord Richardson observed: “In a case, such as the present, where there is no material dispute of primary fact, the challenge to the respondent’s decision is essentially a rationality challenge whereby the court requires to consider whether the respondent’s decision was rational by asking itself the same question that the respondent has considered: namely, whether the petitioner’s claims are clearly unfounded?”

Assessing those claims, he said: “I do not consider that the petitioner’s argument was properly considered by the respondent in the decision dated 9 March 2023, if, indeed, it was considered at all. It is telling that the decision fails to mention the change in the petitioner’s spouse’s status on 4 June 2021. Furthermore, there is no express consideration within the decision of the petitioner’s argument advanced before me which depended upon her spouse’s settled status.”

He added: “On the face of it, there would seem force in her argument both that she had a reasonable expectation of settlement in the United Kingdom following her spouse being granted settled status and that, in her circumstances, the danger existed of her being compelled to remain in an abusive relationship.”

Lord Richardson concluded: “It seems to me that the respondent fails properly to recognise the relevant features of the petitioner’s position. The respondent’s submission overlooks the fact that, at the relevant time, the petitioner’s spouse had settled status having been granted indefinite leave to remain. When that fact is taken into account, I do not consider that the petitioner’s argument that she did have a reasonable expectation of settlement can be dismissed as being clearly unfounded.”

The decision of the respondent of March 2023 was therefore reduced.