RH (Para 289A/HC395 - no discretion)
| Jurisdiction | England & Wales |
| Judge | C P Mather,Senior Immigration Judge |
| Judgment Date | 18 April 2006 |
| Neutral Citation | [2006] UKAIT 43 |
| Court | Asylum and Immigration Tribunal |
| Date | 18 April 2006 |
[2006] UKAIT 43
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
Miss K E Eshun, Senior Immigration Judge
Mr C P Mather, Senior Immigration Judge
For the Appellant: Mr A Pipe, Counsel instructed by Heer Malek, Solicitors
For the Respondent: Mr J Jones, Presenting Officer
RH (Para 289A/HC395 — no discretion) Bangladesh
The documents specified under para 289A(iv) of HC395 (and to be found in section 5 of chapter 8 of the IDIs) are not subject to interpretation and the requirements do not allow for the use of discretion as to the acceptance of other documents by an Immigration Judge.
The appellant is a citizen of Bangladesh and was born on 16 August 1982. She married in Bangladesh in about 1999 and initially lived there with her husband for about six months. Thereafter her husband returned to the United Kingdom for a short period of time and in due course the appellant applied for entry clearance to join him in the United Kingdom as his spouse. She came to the United Kingdom in November 2003 and was granted leave to enter on that basis until September 2005. They lived together in Croydon. The marriage deteriorated and in October 2004 the appellant says that her husband severely assaulted her. With the help of a female friend from Birmingham she moved to that area. Despite attempts by her friend, and encouragement from her mother, she was unable to come to any arrangement with her husband. Following threats by her husband to kill her if she returned to the matrimonial home she made a complaint to the police in the West Midlands about the treatment she had received. On 2 November 2004 she went to a police station where she made a formal complaint. She was assisted by a PC Ali, a Bengali-speaking police officer, who arranged for an interpreter to attend so that she could make a statement. This was then forwarded to the police in Croydon. PC Ali then assisted the appellant by taking her to a women's refugee run by a Mrs Butt in Coventry. She has remained there since. Since arriving in Coventry she has registered with a General Practitioner.
On 25 January 2005 the appellant applied for indefinite leave to remain on the basis that she was the victim of domestic violence. She relied upon the provisions of paragraph 289A of the Immigration Rules. Paragraph 289A then read as follows:-
“The requirements to be met by a person who is a 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 two years as the spouse 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 two years as the unmarried partner of a person present and settled here; and
(iii) the relationship with their spouse or unmarried 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.
That paragraph was inserted into the immigration rules as from 18 December 2002. It has since been amended by HC582 with effect from 24 October 2005. The amendments do not have any relevance to this appeal. It should be noted that the rule as printed in Phelan 4 th Ed contains errors. It refers to 12 months in sub-paragraph (i) not 2 years; and puts the word ‘or’ at the end of sub-paragraph (ii) when it should be ‘and’.
There is a reference in paragraph 289A(iv) to “such evidence as may be required”. In this case the appellant received a letter, dated 16 February 2005, setting out the respondent's requirements. That letter reflects the terms of the respondent's Immigration Directorate's Instructions of 2004 (IDI). Section 5 of Chapter 8 of the IDI deals with domestic violence applications and the relevant parts say this:-
“5.2 Standard of Proof
In order to establish a claim of domestic violence evidence should be sought in the form of:
i. an injunction, non-molestation order or other protection order made against the sponsor (other than an ex parte or interim order); or
ii. a relevant court conviction against the sponsor; or
iii. full details of a relevant police caution issued against the sponsor.”
At 5.7 under the heading “Other acceptable proof of domestic violence” the IDI goes on to say this:-
“It is often difficult for victims of domestic violence to produce documentary evidence of violence as set out at 1.2 (sic) above, and there is often unwillingness or insufficient evidence to take the matter to court. Although caseworkers should still try to obtain police or court evidence confirmation of domestic violence, where this is not possible, acceptable evidence may take the form of more than one of the following [emphasis in the original]:
• A medical report from a hospital doctor confirming that the applicant has injuries consistent with being a victim of domestic violence;
• a letter from a family practitioner who has examined the applicant and is satisfied that the applicant has injuries consistent with being a victim of domestic violence;
• an undertaking given to a court that the perpetrator of the violence will not approach the applicant who is the victim of the violence;
• a police report confirming attendance at the home of the applicant as a result of a domestic violence incident;
• a letter from a Social Services Department confirming its involvement in connection with domestic violence;
• a letter of support or report from a women's refuge.
For the avoidance of doubt, the Immigration Judge quotes from the respondent's letter in the determination. There, the requirements are referred to not as bullet points but paragraphs (a) to (e). The provisions are otherwise identical.
The appellant's application was refused and there is a detailed explanatory statement dated 25 July 2005 setting out why. The statement says (inter alia) this:-
“3.2…..The only documentary evidence the appellant had submitted was a letter dated 3/05/2005 from her GP, Dr Kakad (J2), which stated that she had first gone to her doctor's on 29/03/2005 where she mentioned an assault that took place in October 2004. However, the report did not confirm that the appellant was examined and found to have injuries consistent with being a victim of domestic violence. An extract from a police officer's notebook (B3-B4) which had not been substantiated with a crime reference or a crime report (sic). Furthermore, Home Office enquiries with the police showed no trace of an incident involving the appellant. Also submitted was a letter dated 08/04/2005 from The Sisters Haven (G2) which confirmed that the appellant was residence (sic) with them and that they were supporting her, however, this alone was insufficient evidence to prove the appellant was a victim of domestic violence. The Secretary of State was therefore not satisfied the appellant had produced sufficient documentary evidence to meet the requirements of paragraph 289A(iv) of the Immigration Rules.
3.3 Furthermore, in light of the above the Secretary of State was not satisfied the appellant had within a reasonable time produced the evidence requested, to establish her claim under the immigration rules and accordingly, he was not prepared to exercise discretion in her favour.”
At paragraph 3.4 the respondent went on to say that it was clear that the appellant's marriage had broken down and that the appellant no longer met the conditions of her stay in the UK under her original leave to enter. He curtailed her leave. The appellant appealed the decision to refuse the application but not the decision to curtail the extant leave. The respondent made some initial observations concerning the notice of appeal at the end of the explanatory statement. He concluded there was no reason established in the grounds of appeal to make it appropriate for him to alter his decision. Part of the grounds of appeal, and an accompanying letter in support, suggested that the law discriminated against immigrant women who were subjected to violence. The respondent noted that no evidence had been submitted in support of that assertion and said he was satisfied that Article 14...
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