Ishtiaq v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 26 April 2007 |
| Date | 26 April 2007 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Chadwick, Dyson and Thomas LJJ
Representation
Mr Andrew Nicol QC and Miss Patel instructed by Miles Hutchinson & Lithgow, for the Claimant;
Ms Jenni Richards instructed by the Treasury Solicitor, for the Secretary of State.
Cases referred to:
JL (Domestic violence: evidence and procedure) India[2006] UKAIT 00058
RH (para 289A/HC 395no discretion) Bangladesh[2006] UKAIT 00043
Legislation judicially considered:
Immigration Rules HC 396 (as amended), paragraph 289A
Evidence admissibility of evidence s 85(4) of the Nationality, Immigration and Asylum Act 2002 evidence which could have been produced before decision-maker immigration leave to remain victims of domestic violence paragraph 289A(iv) of the Immigration Rules forms of evidence claimant required to produce caseworker's discretion JL (Domestic violence: evidence and procedure) India[2006] VKAIT 00058 Home Office policies and concessions section 4 of chapter 8 of the Immigration Directorates' Instructions not inflexibly prescriptive
The Claimant, a citizen of Pakistan, was granted leave to remain as the wife of a man present and settled in the United Kingdom. Prior to the expiry of her leave, the Claimant started divorce proceedings. In her petition she set out allegations of violence and ill-treatment. Her husband admitted the allegations and did not defend the petition. The Claimant applied for indefinite leave to remain on the basis that the marriage had broken down permanently as a result of domestic violence. Paragraph 289A(iv) of the Immigration Rules HC 395 (as amended) required that a person seeking indefinite leave to remain as the victim of domestic violence be able to produce such evidence as could be required by the Secretary of State for the Home Department to establish that the relationship was caused to break down permanently as a result of domestic violence. Section 4 of chapter 8 of the Immigration Directorates' Instructions (IDIs) provided that in order to establish a claim of domestic violence, evidence should be sought in the form of an injunction, non-molestation order or other protection order, a relevant court conviction, or details of a relevant police caution issued against the sponsor. Where it was not possible for caseworkers to obtain such evidence, acceptable evidence could take the form of more than one of the following: a medical report or letter from a family practitioner; an undertaking to the court that the perpetrator would not approach the victim; a police report; a letter from social services; or a letter of support from a domestic violence support organisation. The Secretary of State refused the Claimant's application as she was unable to produce evidence in a form specified in Section 4. An Immigration Judge allowed her appeal. On reconsideration, the Asylum and Immigration Tribunal substituted a decision dismissing the Claimant's appeal on asylum and human rights grounds. In reaching its decision, the Tribunal held that the evidence referred to in paragraph 289A(iv) of the Immigration Rules was a reference to the form of documents specified in Section 4 of chapter 8 of the IDIs. As the Claimant could not produce such evidence, she did not satisfy the requirements of paragraph 289A(iv) and was not entitled to indefinite leave to remain. Four months' later, a differently constituted Tribunal in JL (Domestic violence: evidence and procedure) India[2006] UKAIT 00058 held that paragraph 289A(iv) did not preclude the decision-maker or appellate body from making a finding of domestic violence on all the available evidence. In particular, the Tribunal in JL held first, that if paragraph 289A(iv) were to bear the meaning contended by the Secretary of State, it would be ultra vires s 3(2) of the Immigration Act 1971; secondly, that s 85(4) of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act), which permitted the Tribunal in an appeal under s 82(1) or s 83(2) to consider evidence about any matter it thought relevant to the substance of the decision, gave the Tribunal power to consider any relevant evidence relating to domestic violence. The Claimant was granted permission to appeal to the Court of Appeal.
Held, allowing the appeal and restoring the decision of the Immigration Judge:
(1) the purpose of paragraph 289A(iv) was to specify that a claimant had to prove a relationship had been caused to break down permanently as a result of domestic violence in order to qualify for indefinite leave to remain, not to deny indefinite leave to remain to victims of domestic violence who could prove their case, but could not do so in one of the ways prescribed by the Secretary of State; a construction of paragraph 289A(iv) which precluded a claimant, whose relationship had in fact broken down as a result of domestic violence, from proving her case by producing cogent evidence would defeat the purpose of the paragraph; thus, paragraph 289A(iv) did not provide that a claimant could prove the necessary facts only by producing evidence of the kind prescribed by the Secretary of State (para 31);
(2) instead, paragraph 289A(iv) gave the caseworker a discretion to decide what evidence to require a claimant to produce; in exercising that discretion, the caseworker would usually start by applying the guidance in section 4 of chapter 8 of the IDIs; if the claimant was unable to produce evidence in accordance with that guidance, the caseworker should seek an explanation; if the claimant provided a reasonable explanation, the caseworker should give the claimant an opportunity to provide such other relevant evidence as he or she wished (para 38);
(3) although it was not necessary to decide the point, section 4 of Chapter 8 of the IDI was not inflexibly prescriptive; it provided strong guidance as to what evidence caseworkers should require to be produced, but not more than that: RH (para 289A/HC 395no discretion) Bangladesh[2006] UKAIT 00043 disapproved (paras 4142);
(4) the Tribunal in JL was wrong to hold that paragraph 289A(iv) would be ultra vires if it bore the meaning suggested by the Secretary of State; as paragraph 289A(iv) did not have the meaning contended for by the Secretary of State, there was no need for the Tribunal to have recourse to the doctrine of ultra vires (paras 5758);
(5) section 85(4) of the 2002 Act did not permit the Tribunal to disregard the contents of the Immigration Rules or widen the scope of its role beyond a consideration of whether the Secretary of State's decision was taken in accordance with the Rules or in accordance with the law pursuant to s 84; the purpose of s 85(4) was not to allow a claimant to produce evidence before the Tribunal which he or she was not permitted to produce to the original decision-maker; rather, its purpose was to enable a claimant to produce evidence which was not, but could have been, produced before the decision-maker (para 60).
Lord Justice Dyson:
[1] 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.
[2] 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.
[3] 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
[4] 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.
[5] 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...
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