JL (Domestic violence: evidence and procedure)
| Jurisdiction | England & Wales |
| Judge | C M G OCKELTON,DEPUTY PRESIDENT |
| Judgment Date | 12 July 2006 |
| Neutral Citation | [2006] UKAIT 58 |
| Court | Asylum and Immigration Tribunal |
| Date | 12 July 2006 |
[2006] UKAIT 58
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Senior Immigration Judge Grubb
Immigration Judge A D Baker
For the Appellant: Ms S Changkee of Albany Solicitors
For the Respondent: Mr G Russell, Home Office Presenting Officer
JL (Domestic violence: evidence and procedure) India
1. (a) Applications for ILR arising from domestic violence must be made by using the appropriate form. An application made otherwise than by form is not valid and cannot found a successful appeal. (b) The form may be a valid application even if it is submitted out of time. (c) If it is out of time, it will not give rise to a right of appeal under s82(2)(d) but will clearly be relevant if some other immigration decision (e.g. to remove as an overstayer) is made. (d) The Regulations (SI 2003/1712) contain provisions relating to documents accompanying the form. It is for the Secretary of State to take any point about missing documents within the prescribed time; if he does so the form is invalid and an appeal based on it cannot succeed, but if he does not, the application by form is to be treated as valid. 2. Evidence of domestic violence. If (but only if) there has been a valid application, the Immigration Judge is not confined on an appeal to the evidence “required” by the Secretary of State, nor is an appeal bound to fail if the “required” evidence has not been produced. The question of whether domestic violence has occurred is to be determined on the basis of all the evidence before the Immigration Judge. Paragraph 289A(iv) is to be read down to reflect this.
The appellant is a citizen of India who claims to be entitled to remain in the United Kingdom as the victim of domestic violence. The respondent refused her application made on that basis and on 27 October 2004 decided to issue removal directions against her as an overstayer. She appealed to an Immigration Judge who allowed her appeal on what he described as “immigration grounds” and separately under Article 8. The respondent sought and was granted an order for reconsideration. Thus the matter comes before us.
The appellant was born and brought up in India. On 6 May 2001, in India, she married her husband. He was a British citizen who had come to India for the marriage and to live with her. The couple remained together in India until late in 2001. By then the appellant was pregnant. On application she was on 8 November 2001 granted entry clearance with a view to settlement as her husband's spouse. The entry clearance was valid from 13 November 2001 for one year. She came to the United Kingdom on 16 November 2001: the effect of her visa was that she thereupon had leave to enter until 13 November 2002. A son was born to the appellant and her husband on 10 March 2002. In April 2002 the appellant's passport expired and she obtained a new one in this country, which was issued on 24 May 2002. In the summer of 2002 her parents sent her a ticket so that she could return to India. She did so, and, taking her son with her, went to live with her parents in India. Her husband remained in the United Kingdom.
In December 2002 the appellant's husband travelled to India and persuaded her to return to the United Kingdom with her son. She applied for and was granted entry clearance, again with a view to settlement as a spouse. Her visa was issued on 31 January 2003 and was valid for a year. She arrived in the United Kingdom on 6 February 2003 and thereupon had leave to enter until 31 January 2004.
In July 2003 the appellant's aunt visited her at her home and eventually the appellant and her son left the matrimonial home to live with the aunt. The appellant has not since lived with her husband.
The appellant says that the reason for her leaving her husband to go to India in the summer of 2002 and leaving her husband again in the summer of 2003 was that she was subject to domestic violence. On 17 November 2003 solicitors acting on her behalf wrote to the respondent's domestic violence unit applying for the appellant to have further leave to remain in the United Kingdom as a victim of domestic violence. They supported the application by a copy of a statement which the appellant had made two months earlier in connection with proceedings brought by her husband against the appellant under the Children Act 1989. It set out the factual basis for her application and it remains the basis for her claim now.
The respondent appears to have taken no immediate action on that letter. The position is not entirely clear, because the solicitors then acting for the appellant have closed their immigration department and Ms Changkee who appeared before us told us that it had been not always easy to interpret the way in which their files were put together. What we do have is a letter from the respondent to the appellant's solicitor, dated 18 May 2004, in the following terms:
“Thank you for the requested information however as I mentioned in our telephone conversation today I still need details of how your client entered the UK. Please could you complete and return the attached questionnaire and also submit a full birth certificate or passport for [the son].
Please do not hesitate to telephone the above number if you need assistance.
If you do not produce the information requested within fourteen days, the application will be considered on the basis of the documents and information you have already provided. This could result in the application being refused, as provided for in paragraph 322 of HC 395 of the Immigration Rules.”
The “questionnaire” was the form SET(O), to which we will make further reference in due course. The form was completed and returned to the respondent apparently on 3 June 2004, apparently with no accompanying documents. Again there was no immediate reaction from the respondent. The application was, however, formally refused on 11 October 2004. It is clear that the respondent had by then a copy of a police report, made in connection with the proceedings in Swansea County Court, indicating that the appellant's husband had been reported for the offence of common assault and, upon caution, had made no reply. There is also a Criminal Justice Act witness statement by the appellant in connection with the same investigation.
The letter accompanying the refusal includes the following passage:
“5. Your client has not submitted any of the relevant documents that are required to consider a claim for indefinite leave to remain on the grounds of domestic violence.
6. Your client has failed to submit any objective evidence from the authorities which would support her claim. The report from PC Andrew Gunn dated 30 September 2003 states that your client's spouse has denied all allegations of mistreatment towards his wife. [He] has not received a police caution for his alleged behaviour and your client has not sought any form of injunction or protection order against her spouse. Your client's spouse was given a caution for the offence of common assault which has a six month time limit and the offence according to the statement produced by your client was over a year old.
7. Your client has also failed to produce a medical report confirming that she has injuries that are consistent with being a victim of domestic violence.
8. Your client has stated that she had been ‘treated like a slave’ and that her spouse had attempted to hurt her physically during the marriage. However, she does not explain when these events occurred and whether they happened during the probationary period of her marriage to [her husband]. In addition, your client only reported the alleged violence by her spouse to the police in September 2003, almost two years after she had arrived in the United Kingdom and faced any alleged abuse. As such, it is not possible to say whether the abuse which took place happened during the probationary period of the marriage.”
The appellant appealed against the decision to remove her as an overstayer. The respondent's appeal bundle summarises her immigration history in the following way:
“The subject entered the United Kingdom on 16 November 2001 and was granted leave to enter as the spouse of a person present and settled in the United Kingdom, following her marriage to [her husband] on 6 May 2001. On 13 November 2002 the subject's leave to enter expired and at this point she became an overstayer. On 27 September 2004 she was served with an IS151A. The subject applied for indefinite leave to remain on 4 June 2004. This application was refused on 11 October 2004.”
The appellant's appeal was heard by an Immigration Judge, Mr G J Hart TD, on 21 November 2005. The appellant gave oral evidence before him and he had a considerable number of documents. After setting out the immigration history and making some observations about the law of divorce, he noted that since the hearing he had received a copy of a decree absolute made on 17 October 2005, following a decree nisi made on 14 July. He summarised the evidence of domestic violence as follows. On 5 August 2003 the appellant made her Criminal Justice Act statement. That appeared to have been made as a result of her husband's refusal to allow her to collect her valuables and belongings. The statement resulted in a police officer visiting her husband at his home, the report for possible prosecution for common assault and, as we have already recorded, the husband's lack of any comment, following a police and Criminal Evidence Act caution. The next event appears to have been that the husband instigated proceedings under the Children Act 1989 claiming a residence order that the son should live with him. That application was resisted by the...
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