R Jamila Kausar v The Secretary of State for The Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE WALKER: |
| Judgment Date | 28 September 2006 |
| Neutral Citation | [2006] EWHC 2281 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/10279/2005, CO/7436/2005 |
| Date | 28 September 2006 |
[2006] EWHC 2281 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mr Justice Walker
CO/10279/2005, CO/7436/2005
Co/7436/05
Mr K Thathall of ISS Solicitors for the claimants.
Mr R Palmer (instructed by the Treasury Solicitor) for the defendant.
Table of contents:
Introduction 2
Material facts 4
Ms Jamila Kausar 4
Mr Wajid Mahmood 5
The domestic violence refusal issue 8
The Immigration Rules 8
The Immigration Directorate Instructions 10
Mr Mahmood's arguments on the domestic violence refusal 12
Ms Kausar's arguments on the domestic violence refusal 20
The defendant's arguments on the domestic violence refusal 26
Written submissions on the domestic violence refusal 26
The domestic violence refusal: analysis 27
The statutory appeal issue 28
The arguments on the statutory appeal issue 29
The statutory appeal issue: analysis 32
Conclusion 32
Introduction
These applications for permission to apply judicial review have been beset by procedural hiccups and consequential delays. The result is that this judgment is delivered much later than I would have wished and is far longer than would normally be appropriate on an application for permission.
Ms Jamila Kausar and Mr Wajid Mahmood are sister and brother. Each came to the United Kingdom with leave to enter for a limited period of time, the basis for the leave being marriage to a United Kingdom resident ("the sponsor"). The limited leave expired in the absence of any application for an extension. Eventually the defendant took steps with a view to removal. At a late stage in that process each of Ms Kausar and Mr Mahmood made an application for indefinite leave to remain as a victim of domestic violence. In each case the application was refused by the defendant. I shall refer to such an application as a "domestic violence application", and to refusal of such an application as a "domestic violence refusal." Domestic violence applications fall into a category of applications made using Form SET (O). References in the documents in this case to a "SET (O) application" are to be taken as references to a domestic violence application.
Separate applications for permission to apply for judicial review were issued on behalf of each of Ms Kausar and Mr Mahmood. These applications have now been refined so that in each case only two issues are sought to be raised. The first issue ("the domestic violence refusal issue") in each case is whether on the facts the domestic violence refusal was unreasonable or improper. The second issue ("the statutory appeal issue") is whether on the facts the domestic violence refusal gave rise to a statutory right of appeal.
Ms Kausar's application for permission to apply for judicial review was considered on the papers by Lindsay J. In a ruling dated 6 December 2005 he concluded that all points other than the statutory appeal issue were unarguable. He considered that it might be arguable that the domestic violence refusal fell within a statutory right of appeal. For this reason he adjourned consideration of permission to apply for judicial review to an oral hearing, indicating that the substantive hearing should follow if permission were granted.
On 9 January 2006 proposed amended grounds were served. These grounds were elaborated in a "supporting statement" included in a further bundle served on 13 January 2006. The two substantive remedies sought were that the defendant be ordered to review his decision and that the claimant be granted a right of appeal.
Mr Mahmood's application for permission was prepared on 13 December 2005 and filed the following day. He had been due to be removed at 10.30 p.m. on 13 December 2005, but this was prevented by an emergency injunction granted by Pitchers J an hour earlier on the footing that a claim under Article 8 of the European Convention on Human Rights ("ECHR") was to be advanced on behalf of Mr Mahmood. The application for permission to apply for judicial review was considered on the papers by Lloyd Jones J. In a ruling dated 21 February 2006 he refused permission, having concluded that the application disclosed no arguable case for judicial review. On 22 February 2006 notice of renewal of the claim for permission was given. This observed that the judge appeared not to have been aware of a letter sent on 8 February 2006 enclosing proposed amended grounds for review and additional documents. The proposed amendments complained of a refusal by the defendant on 13 December 2006 of Mr Mahmood's domestic violence application made on 12 December 200Orders were sought that Mr Mahmood be given an opportunity to submit his case properly to the defendant and that he be granted a right of appeal. The letter of 8 February 2006 also requested an extension of time of 4 weeks in order to take witness statements from individuals who could confirm Mr Mahmood's claim of domestic violence. Further material on behalf of Mr Mahmood was lodged on 8 March 2006.
On 4 April 2006 the adjourned permission application in the case of Ms Kausar and the renewed permission application in the case of Mr Mahmood were heard together. Mr Khadim Thathall of ISS Solicitors appeared on behalf of the claimants. Mr Robert Palmer of counsel appeared on behalf of the defendant. During the course of the hearing questions arose which required further consideration. A written response to those questions dated 24 April 2006 was filed by the defendant. There appears to have been some difficulty on the claimants' side in relation to the receipt of this document. A response on behalf of the claimants was eventually filed on 20 July 2006. Regrettably, this came at too late a stage in the legal term for me to prepare my judgment prior to the legal vacation. During August I re-read the papers in the case, reviewed the oral argument, and considered the written submissions. In early September, however, I was informed of other cases which appeared potentially relevant. Further written submissions were lodged dealing with these. This is my judgment on the two applications.
Material facts
A helpful account of the material facts was set out in the Defendant's skeleton argument. This section of my judgment is in large part based on that account.
Ms Jamila Kausar
Ms Kausar arrived in the UK on 14 January 2001 with an entry clearance as a spouse. She was granted leave to enter for 12 months. Upon the expiry of that leave, she failed either to apply for leave to remain, or to leave the UK. On 8 August 2005, she was detained by Immigration Officers as an illegal overstayer. She was served with notice of her liability to removal. Removal directions were set.
On 9 August 2005 she claimed asylum. Removal directions were cancelled in light of that claim on 11 August 2005. The basis of her application was that she feared persecution because of her social group, and in particular because her estranged husband wanted her to return to Pakistan so that unknown people could kill her and her family. She also claimed that her removal would breach Articles 2, 3 and 8 of the ECHR.
Asylum was refused on 30 August 2005. This was followed by notification of a decision to remove her as an illegal overstayer and of her right of appeal against that decision. She lodged a notice to appeal on 31 August 2005, but withdrew it on 5 September 2005.
Syeds Solicitors on her behalf on 5 September 2005 submitted a domestic violence application. Ms Kausar had signed this application on 26 August 2005. It was accompanied by documentary material which I shall describe later in this judgment.
Ms Kausar's domestic violence application was refused on 14 September 2005 in a letter which said this:
The only evidence you have supplied in support of your client's application are affidavits from her two uncles and her sister's neighbour which can hardly be considered objective. I would point out that when your client applied for asylum she clearly stated that she has had no contact with her husband or his family since the middle of 2005. She also stated that since that time she had made several attempts to make contact with her husband and his family as in her words, "I wish my home would not have broken up and I tried to reconcile." This hardly seems consistent with your client's latest claim that she has suffered domestic violence at his hands.
In order to establish a claim of domestic violence evidence would be needed in the form of an injunction or other protection order made against the sponsor, a relevant court conviction against the sponsor or details of a police caution issued against the sponsor. None of these have been forthcoming in your client's case and accordingly we are not prepared to grant her leave to remain in the United Kingdom on the grounds that she is a victim of domestic violence."
This led to further correspondence in which Syeds Solicitors, among other things, contended that Ms Kausar was entitled to a statutory appeal. In the course of that correspondence Ms Kausar's application for judicial review was lodged on 19 September 2005.
Mr Wajid Mahmood
Mr Mahmood arrived in the UK on 14 January 2001 with an entry clearance as a spouse. He was granted leave to enter for 12 months. Upon the expiry of that leave, he failed...
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