Spouses of Refugees and the Domestic Violence Concession

The Petitioner sought to challenge a decision of the Secretary of State in refusing her leave to remain under the benefit of the domestic violence concession for spouses whose marriage breaks down as a result of ( evidenced ) domestic violence during the probationary period of leave on the grounds 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.

Having lost at the Outer House in her action for Judicial Review, she pursued her appeal to the Inner House of the Court of Session where judgement was issued on 27th May ( A V Secretary of State [2016] CSIH 38 ) allowing the appeal and reducing the original decision of the Secretary of State.  The court stated

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". [66] concluding "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."[82]