Domestic violence and discretionary leave to remain
Guzman-Barrios (domestic violence-DLR- Article 14 ECHR) Colombia [2011] UKUT 352 (IAC) (09 September 2011)
This Upper Tribunal case was heard on 28th July 2011. In this case it was held that
“Someone who is married to a person settled in the United Kingdom but who only has discretionary leave to remain cannot, if his marriage breaks down because of domestic violence, claim an entitlement to indefinite leave by analogy with paragraph 289A of the Immigration Rules. There is no unlawful discrimination in terms of ‘other status’ under Article 14 of the ECHR. That the rule only benefits those given leave to enter or remain under Part 8 of HC 395 does not itself engage the Convention, although the circumstances of the marital breakdown may be relevant to the assessment of any Article 8 claim that removal would be disproportionate”.
The facts of this case:
The appellant is a national of Columbia who arrived in the UK clandestinely in 2001. In 2004, he applied for leave to remain in the UK on the basis of his marriage to a woman settled here. The appellant was granted discretionary leave to remain (herein after referred to as DLR). He was not eligible for the two years leave to remain as a spouse under Immigration Rule 284 as he was present in the UK illegally. His DLR was due to expire on 21st August 2010 however, his marriage had begun to break down in 2007. The appellant applied for indefinite leave to remain (ILR) on the basis that his marriage broke down due to domestic violence on the part of his wife. The appellant applied for settlement on application form SET(M) which was not the correct form as it applied to those in a subsisting relationship not to one that had broken down.
The appellant then re-submitted an application in September 2010 on form SET(DV). This application was refused with no right of appeal as the application was made after the expiry of his leave. The appellant lodged an appeal regardless and Immigration Judge Cockrill accepted the appeal by stating that the initial application which was made in time, was not the wrong form. The decision was made in accordance with the reasoning in the case of JH (Zimbabwe) [2009] EWCA Civ 78. The judge did accept that the appellant’s marriage had broken down permanently as a result of domestic violence however; he did not accept that there was any discriminatory breach of the appellant’s article 8 or 14 ECHR rights.
The appellant’s representatives tried to argue that a person who is given leave to remain as a spouse under the immigration rules and whose marriage breaks down as a result of domestic violence can apply for ILR. The appellant was said to be in the same position save for the fact that he was given DLR instead of leave to remain under the immigration rules. It was argued that this was contrary to Article 14.
The judge noted that the appellant’s marriage was already breaking down by the time he was actually granted DLR and had the Secretary of State been aware, he may not have been granted DLR at all. The judge concluded that the appellant had lived the most part of his life in Columbia and that it would not be disproportionate for him to return in his circumstances.
The appellant sought permission to appeal to the Upper Tribunal which was initially refused but subsequently granted on renewal.
Conclusion
The Upper Tribunal concluded that there was no unlawful discrimination in this case and accepted that those who fall within the immigration rules are treated more favourably than those who don’t. The appellant had chosen not to apply for entry clearance as a spouse in which case, he could have obtained ILR. He remained in the UK making an application outside of the rules. The Tribunal held that the fact that people who fall outside of the scope of the immigration rules and who are treated differently as a result, does not necessarily constitute unlawful discrimination. It was stated that ‘Immigration control necessarily involves treating some people more favourably than others’. The Tribunal pointed out those British citizens are treated more favourably than foreign migrants and that in some cases, European nationals are treated more favourably than British nationals (in respect of family reunion) however none of this amounts to unlawful discrimination.
The Tribunal considered the appellant’s article 8 right to a private and family life and concluded that domestic violence is relevant to this consideration but it will not necessarily lead to the appeal being allowed.
There was no error of law in the First Tier Tribunal decision and the appeal was dismissed.
September 2011