IN (Domestic violence – IDI – policy) Pakistan  UKAIT 00024
ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 01 February 2007
Date Determination notified: 05 March 2007
SENIOR IMMIGRATION JUDGE MCGEACHY
|Secretary of State for the Home Department||RESPONDENT|
For the Appellant: Mr A. Mahmood, Solicitor, of Bedford Solicitors
For the Respondent: Ms R Brown, Senior Home Office Presenting Officer
DETERMINATION AND REASONS
The IDI of March 2006 on Victims of Domestic Violence does not contain any policy on the part of the Secretary of State whereby persons may be granted indefinite leave to remain if the domestic violence that caused the marriage or other relationship to break down occurred after the end of the relevant probationary period mentioned in paragraph 289A of the Immigration Rules.
"quite a few times with various complaints mostly of a trivial nature but on 3 March 2004 when she saw one of the partners she alleged she was having a lot of family problems and not getting on well with her husband. She feels depressed and lonely."
"of her own will resumed married life with him from around June that year until September. I did not accept that she was forced to resume married life and instead concluded that she did so willingly in the hope of reconciliation and an improved marriage. The reconciliation did not work, and the marriage broke down permanently following assault by her husband in September of that year. I accept that she was assaulted in March 2004, that being confirmed by the bruising on her arm." (paragraph 33)
"289A. 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 12 months 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; or
(iii) the relationship with their spouse or 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."
"3.1. Other Acceptable Proof of Domestic Violence
It is often difficult for victims of domestic violence to produce the documentary evidence of violence as set out at 1.2 above [it would seem this is a reference to paragraph 3(i) to (iii) of the IDI, which refer to an injunction, non-molestation order or other protection order; a relevant court conviction; or full details of a relevant police caution issued against the sponsor], and there is often an 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:-
- 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 GMC registered 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;
- a letter from a social services department confirming its involvement in connection with domestic violence;
- a letter of support or report from a refuge;
- a letter of support or a report from a domestic violence support organisation which is identified at annex AB.
This evidence may relate to one incident or a number of incidents and should confirm that domestic violence has taken place. Witness statements from friends or family and letters from official sources that simply relay unfounded reports by the applicant but do not confirm the incident should not be accepted. Where two pieces of evidence have been supplied but concerns remain caseworkers may contact the applicant to ask for further information."
"3.6 Out of Time Applications
Applications made 'out of time' after the expiry of the applicant's limited leave, where all the other requirements are met, should nevertheless be considered sympathetically. However, ILR should be granted outside the rules. Acceptable reasons for the delay in making an application could be that the sponsor's passport (sic) had been withheld by the sponsor or that the stress of the situation had led the applicant to overlook the need to regularise their immigration status.
Applications from long-term overstayers who claim to have been victims of domestic violence, but are unable to provide the evidence required, should be refused."
"refers to applications being made out of time, that is after the expiry of the applicant's limited leave, 'where all the other requirements are met'. One of the 'other requirements' is that the 'relationship was caused to permanently break down before the end of that period as a result of domestic violence.' Accordingly, in the present appeal, the appellant does not satisfy the requirements of 289A, and the appeal in respect of the Immigration Rules in my view must fall on that head."
"2.1 Key Points
The main points on which a caseworker needs to be satisfied in cases of domestic violence are:-
- the applicant has limited leave to enter or remain in the UK as a spouse, civil partner or unmarried partner of a person present and settled here; and
- the applicant is no longer living with the sponsor; and
- the applicant was the victim and the domestic violence occurred during the probationary period while the marriage or relationship was subsisting; and
- domestic violence was the reason for the breakdown of the marriage or relationship; and
- there is proof that domestic violence took place."
(a) he or she suffered domestic violence during the probationary period; and
(b) the marriage broke down after the end of the probationary period, whether or not as a result of the domestic violence which occurred during that period.
"provided that the domestic violence occurred during the probationary period while the relationship was subsisting and the applicant is able to provide satisfactory evidence that domestic violence has taken place".
Signed Date: 20 February 2007
Senior Immigration Judge Lane