The Equality & Human Rights Commission has welcomed a Court of Session decision upholding a challenge to a Home Office immigration rule that excludes spouses and children of refugees from a concession applied to victims of domestic abuse.

Three Inner House judges upheld an appeal by "A", a Ugandan national and the wife of a man granted leave to remain in the UK as a refugee, who had left him due to abuse culminating in an assault but who was told she did not meet the requirements to apply for indefinite leave to remain.

A had been granted a family reunion visa in 2010 for herself and her children after her husband was accepted as having refugee status on account of his political views. In 2011 she left him due to his abuse, but remained in Glasgow where the family had settled.

On her application for indefinite leave to remain, the Home Secretary considered that she failed to meet the requirements of the immigration rules for a grant of leave to remain under the concession applied to victims of domestic violence (which makes an exception to the normal rule for rights as a partner that a relationship must be subsisting), on the basis she was not the spouse of a British citizen or an individual settled in the UK.

Lady Paton, Lady Dorrian and Lord Drummond Young noted that the rationale of the rule was to treat spouses of those settled in the UK differently from those without that status, who did not have the same reasonable expectation of settlement, but did not accept that it was sound to equiparate the position of refugees with those granted work or study leave.

"The status of refugee, as has been pointed out, is declaratory", said Lady Dorrian in delivering the opinion of the court.  "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."

The Lord Ordinary had misdirected himself in accepting the comparison, and in considering the husband's immigration status as "precarious". 

While the question concerned a Government policy, "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... The position of those such as the reclaimer has simply not been brought into consideration", Lady Dorrian stated.

She concluded: "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".

EHRC Scotland had intervened in the case by providing written submissions. Commenting in response to the ruling, Lynn Welsh, EHRC Scotland Head of Legal, said: “The safety of these vulnerable women was put at risk by the current policy of the UK Government. We welcome today’s decision and encourage the Home Office to review the policy carefully in terms of its impact on victims of domestic violence from different countries.”

Sarah Crawford, solicitor at the Legal Services Agency in Glasgow, which brought the action as a test case, added: “It is accepted that women who have experienced violence should not be expected to stay in an abusive relationship. Women married to refugees should not therefore also be expected to stay in an abusive relationship due to a change made to immigration rules with no apparent consideration of their position. This is unnecessary and unjust, and the court has recognised this."

Click here to view the opinion.