Ahmed Iram Ishtiaq v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dyson,Lord Justice Thomas,Lord Justice Chadwick |
| Judgment Date | 26 April 2007 |
| Neutral Citation | [2007] EWCA Civ 386 |
| Docket Number | Case No: C5/2006/1041 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 April 2007 |
[2007] EWCA Civ 386
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION APPEAL TRIBUNAL
Mr A.L. McGeachy (Senior Immigration Judge), Mrs M. Padfield and Dr C.J. Winstanley
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Chadwick
Lord Justice Dyson and
Lord Justice Thomas
Case No: C5/2006/1041
Andrew Nicol QC & Miss Patel (instructed by Miles Hutchinson & Lithgow) for the Appellant
Jenni Richards (instructed by Treasury Solicitors) for the Respondent
Hearing dates: 28 March 2006
Introduction
This appeal is concerned with the true interpretation of para 289A(iv) of the Immigration Rules HC 395 (“the Rules”). Para 289A is headed “Requirements for indefinite leave to remain in the United Kingdom as the victim of domestic violence”. It provides:
“The requirements to be met by a person who is the victim of domestic violence and who is seeking indefinite leave to remain in the United Kingdom are that the applicant:
(i) was admitted to the United Kingdom or given an extension of stay for a period of 2 years as the spouse or civil partner of a person present and settled here; or
(ii) was admitted to the United Kingdom or given an extension of stay for a period of 2 years as the unmarried or same sex partner of a person present and settled here; and
(iii) the relationship with their spouse, civil partner, unmarried partner or same-sex partner, as appropriate, was subsisting at the beginning of the relevant period of leave or extension of stay referred to in (i) or (ii) above; and
(iv) is able to produce such evidence as may be required by the Secretary of State to establish that the relationship was caused to permanently break down before the end of that period as a result of domestic violence.”
Para 289B of the Rules provides that “indefinite leave to remain as the victim of domestic violence may be granted provided that the Secretary of State is satisfied that each of the requirements of paragraph 289A is met”.
The appellant is a citizen of Pakistan. She entered the United Kingdom as the wife of a man who was present and settled here and was granted leave to remain until 1 January 2005. On 12 November 2003, she applied for indefinite leave to remain on the basis that her marriage had permanently broken down as a result of domestic violence. She was able to prove that her marriage had permanently broken down as a result of domestic violence, but was unable to do so by producing evidence in the form of one or more of the documents specified by the Secretary of State in section 4 of chapter 8 of the Immigration Directorate Instructions (“IDIs”). IDIs contain guidance to caseworkers as to how they should apply the Rules (including para 289A) when they make decisions in individual cases. The principal question that arises on this appeal is whether it is fatal to an application for indefinite leave to remain under para 289A that an applicant is unable to produce evidence in the form of one or more of the documents specified in section 4 of chapter 8 of the IDIs.
By a decision promulgated on 9 March 2006, the Asylum Immigration Tribunal (“AIT”) held that “such evidence as may be required by the Secretary of State” within the meaning of para 289A(iv) is a reference to evidence in the form of documents specified by section 4 of chapter 8 of the IDIs. Since the appellant had not produced any such evidence, she had not satisfied the requirements of para 289A(iv). Accordingly, she was not entitled to indefinite leave to remain, although, having heard the appellant give evidence, the immigration judge had found as a fact that her marriage had broken down permanently before the end of the 2 year “probationary” period as a result of domestic violence.
On 10 July 2006, a differently constituted AIT reached a different conclusion on the same question of interpretation in JL (Domestic violence: evidence and procedure) India [2006] UKAIT 58. In that case, the AIT held, for reasons to which it will be necessary to refer later in this judgment, that para 289A(iv) did not preclude the decision-maker or the appellate body from making a finding of domestic violence on all the available evidence. We have been told that tribunals are applying the reasoning of that AIT in domestic violence cases. Mr Andrew Nicol QC relies on the reasoning of the AIT in JL's case as part of his argument in the present appeal. We note that permission to appeal was given by Richards LJ in the present case in part, at least, because the conflict between the two decisions needs to be resolved.
The relevant statutory provisions
Before I come to the decisions in the present case, I need to refer to the relevant statutory provisions. The Immigration Rules are made by the Secretary of State pursuant to section 3(2) of the Immigration Act 1971 (“the 1971 Act”) which provides:
“The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; and section 1(4) above shall not be taken to require uniform provision to be made by the rules as regards admission of persons for a purpose or in a capacity specified in section 1(4)…..”
Section 1(4) of the 1971 Act provides:
“The rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right to abode shall include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules…) persons coming for the purpose of taking employment, or for the purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom.”
Section 31A of the 1971 Act provides:
“(1) If a form is prescribed for a particular kind of application under this Act, any application of that kind must be made in the prescribed form.
(2) If procedural or other steps are prescribed in relation to a particular kind of application under this Act, those steps must be taken in respect of any application of that kind.
(3) “Prescribed” means prescribed in regulation made by the Secretary of State.
(3A) Regulations under this section may provide that a failure to comply with a specified requirement of the regulation—
(a) invalidates an application,
(b) does not invalidate an application, or
(c) invalidates an application in specified circumstances (which may be described wholly or partly by reference to action by the applicant, the Secretary of State, an immigration officer or another person).
(4) The power to make regulations under this section is exercisable by statutory instrument.
(5) Any such statutory instrument shall be subject to annulment in pursuance of a resolution of either House of Parliament.”
The applicable regulations for the purposes of these appeals are the Immigration (Leave to Remain) (Prescribed Forms and Procedures) Regulations 2003 (SI 2003/1712) (“the 2003 Regulations”). Regulation 9 provides:
“(1) The form set out in Schedule 7 is hereby prescribed for an application for indefinite leave to remain in the United Kingdom:
as a work permit holder,
………….
(i) as a victim of domestic violence,
for the purposes of the immigration rules.”
Regulations 11 and 12 set out the “Prescribed Procedures”:
“11. The following procedures are hereby prescribed in relation to an application for which a form is prescribed in any of regulation 3 to 9 above:
(a) the form shall be signed and dated by the applicant…..;
(b) the application shall be accompanied by such documents and photographs as specified in the form; and
(c) the application shall be:
(i) sent by prepaid post to the Immigration and Nationality Directorate of the Home Office, or
(ii) submitted in person at a Public Enquiry Office of the Immigration and Nationality Directorate of the Home Office.
12. – (1) A failure to comply with any of the requirements of regulation 11(a) or (b) above to any extent will only invalidate an application if:
(a) the applicant does not provide, when making the application, an explanation for the failure which the Secretary of State considers to be satisfactory,
(b) the Secretary of State notifies the applicant, or the person who appears to the Secretary of State to represent the applicant, of the failure within 21 days of the date on which the application is made, and
(c) the applicant does not comply with the requirements within a reasonable time, and in any event within 28 days, of being notified by the Secretary of State for the failure.”
Section 85(4) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) provides:
“(4) On an appeal under section 82( 1) or 83(2) against a decision the Tribunal may consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision.”
Section 86 of the 2002 Act provides so far as material:
“(3) The Tribunal must allow the appeal in so far as it thinks that—
….
(b) a discretion exercised in making a decision against which an appeal is brought or is treated as being...
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