England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No. IA/06750/2006]

		Royal Courts of Justice Strand, London, WC2A 2LL
		5th December 2007

Lord Justice Laws:

1. This is an appeal brought with permission granted by the tribunal below on 13 December 2006 against the decision of the Asylum and Immigration Tribunal (Immigration Judge Trethowan) of 20 November 2006, on what is called a second stage reconsideration, by which the immigration judge dismissed the appellant's appeal against the decision of the Secretary of State, made on 6 June 2006, to refuse to grant her indefinite leave to remain in the United Kingdom as a victim of domestic violence. This case required the immigration judge to consider paragraph 289(A) of the Immigration Rules House of Commons Paper 395, to which I will return.
2. The appellant is a national of India born on 25 May 1982. On 10 October 2003 she married KP -- a British citizen present and settled here. On 23 April 2004 she was granted entry clearance as the spouse of her husband, until on 23 April 2006. On 19 June 2004 she arrived in the United Kingdom and was granted leave to enter pursuant to the entry clearance. She went to live with her husband. Her case as to what followed was described by Immigration Judge Trethowan as follows:

"10. The appellant claims that after joining her husband she suffered both verbal and physical abuse at his hands and verbal and mental abuse at the hands of his mother. She did not report it to the authorities as it was not proper for her to do so in her culture. She did tell her father in India, who then wrote to the appellant's husband. Her father also told friends of his in the United Kingdom. Full details of the behaviour the appellant claims she suffered at the hands of her husband and her mother-in-law are fully set out in the report from the Crime and Anti-Social Behaviour Service.

"11. On 31 December 2004 the appellant returned to India, at the insistence of her husband. He said he would come to collect her after a few weeks. He never did. The letter dated 13 April 2006 from Councillor Omana Gangadharan indicates that whilst the appellant was in India she had contacted her for advice with regard to the domestic violence she claimed she had experienced at the hands of her husband. Councillor Gangadharan advised the appellant to return to the United Kingdom in order to report the issues to the relevant authorities. On 5 November 2005 the appellant returned to the United Kingdom. She was granted entry under the terms of her then current entry clearance visa. She did not feel able to return to live with her husband. Instead she went to stay with family friends. After her return she received counselling. Since her return she has been receiving counselling from the Newark Asian Womens' Project."

3. On 5 April 2006 the appellant completed what is called an SET(0) form in order to apply under Rule 289(A) of the Immigration Rules for indefinite leave to remain as a victim of domestic violence. Paragraph 289(A) states, so far as material:

"Refusal of indefinite leave to remain in the United Kingdom as the victim of domestic violence

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 2 years as the spouse or civil partner of a person present and settled here; or

(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."

4. The application form was sent to the Secretary of State under cover of a letter from the appellant's solicitors, dated 18 April 2006. On 5 May 2006 the Secretary of State wrote to the solicitors seeking further information and documentary evidence in relation to the appellant's claim to have been the victim of domestic violence. In particular, he required the documents referred to in the Secretary of State's "Immigration Directorate Instructions (IDIs)" at chapter 8 section 4.3. There was also a request that the appellant should complete a "Domestic Violence pro forma". On 26 May 2006 the solicitors replied, supplying some further documentation and the pro forma. The application was refused by the Secretary of State in a decision letter dated 6 June 2006. The decision letter stated that the material supplied by the appellant did not "meet the requirements of the Immigration Rules". In context that meant that the appellant's documents did not conform to the list of "acceptable evidence" in the IDIs chapter 8 section 4.3.
5. Notice of appeal was completed on the appellant's behalf on 22 June 2006. The appeal was heard by Immigration Judge Blandy on 3 August 2006 and dismissed by him on 9 April 2006. The appellant applied for a reconsideration and on 21    August    2006 Senior   Immigration   Judge    Mckee granted reconsideration in a first stage decision. He stated:

"The Immigration Judge's interpretation of what is meant by 'the beginning of the relevant period of leave' at paragraph 289(A)(iii), and his rejection of the documents adduced by the appellant as not meeting the evidentiary requirements of paragraph 289(A)(iv), are both arguably erroneous in law. See now JL [2006] UKAIT 58."

6. So the matter went to a second stage reconsideration and, ultimately, Immigration Judge Trethowan's decision of 20 November 2006 now under appeal. The point which exercised Senior Immigration Judge Mckee concerning the meaning of the phrase "the beginning of the relevant period of leave" is no longer live. Immigration Judge Trethowan accepted (paragraph 29) that the phrase referred to the date of the appellant's first arrival in the United Kingdom, rather than the date of her return on 5 November 2005, as Immigration Judge Blandy had thought. Immigration Judge Trethowan also accepted (paragraph 33) that the marriage had broken down before the appellant's return to India on 31 December 2004. However, he concluded that the appellant had not shown that the breakdown of the marriage was as a result of domestic violence within the meaning of the Immigration Rule and this is the conclusion now sought to be overturned as being erroneous in law.
7. Before setting out the immigration judge's reasons for concluding as he did, it is convenient to summarise the evidence that was put before him for the appellant. There was first the appellant's oral testimony together with her witness statement of 20 July 2007. In the witness statement she said (paragraph 6) that her husband had "constantly abused me both verbally and physically," and she spoke of "horrific beatings" (paragraph 10). There were reports from two doctors who had examined her. They had received hearsay accounts from the appellant of violence at her husband's hands. One of them, Dr Sivaprasad, referred to a haematoma on the lower part of the spine. Next, a Mr Pillai, a friend of the family, gave an affidavit saying he had become aware of "brutal abuse" by the husband. A letter from Councillor Gangadharan of Newham Borough Council contains hearsay evidence of the appellant's ill-treatment, and refers to two letters which the appellant had written to her parents in India describing her husband's violence and the humiliation and bullying that she had suffered at the hands of her mother-in-law and also her sister-in-law.
8. There was a report from the Crime and Anti-Social Behaviour Service of Newham Borough Council. That sets out a very graphic account of the appellant's ill-treatment at the hands of her husband and mother-in-law. It includes, but is by no means limited to, occasions of physical violence. Indeed, much of it describes other forms of ill-treatment. It was completed following an interview with the appellant on 14 March 2006. There are letters from the Newham Asian Women's Project which also lent some support for the appellant's case, though again they depend largely on accounts given by the appellant to others. Finally, there are two letters from the appellant to her family in India which predate her return there on 31 December 2004. I apprehend they are the same letters that have been referred to by the Newham councillor.
9. As the immigration judge noted, none of these materials conform to the type or types of "acceptable evidence" set out in the IDIs chapter 8, section 4.3. As I understand it, those forms of evidence are collected under these heads:

"1. Evidence that the applicant had an injunction against her partner obtained after a hearing; or

2. A relevant court conviction against; or

3. Detailed relevant police action against the partner."

[Alternatively, a combination of two of the following forms of evidence are said to be sufficient:]

"1. Medical report from a hospital or family doctor;

2. An undertaking given by the partner;

3. A police report confirming attendance at matrimonial home;

4. Social services letter confirming involvement;

5. A letter of support or report from a refuge."

10. In those circumstances, Immigration Judge Blandy had held that he had no discretion but to reject the appellant's case on the footing that it could in law only be proved by evidence falling within the categories set out by the Secretary of State in the IDIs. The immigration judge considered that this restrictive approach was required by Rule 289(A)(iv). Immigration Judge Trethowan correctly held (paragraph 30) that Immigration Judge Blandy had been wrong in that respect. Immigration Judge Trethowan had before him the decision of the tribunal in JL (Domestic Violence; evidence and procedure) India [2006] UKAIT 00058, in which it was held:

"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."

11. Since Immigration Judge Trethowan's decision, this court has had occasion to examine the decision in JL (see Ishtiaq v SSHD [2007] EWCA Civ 386). The Court of Appeal disagreed with some of the reasoning in JL but upheld the essential finding that receivable evidence of a Rule 289(A) issue, relating to domestic violence, was not limited to what was specified in the IDI. Dyson LJ, giving the judgment of the court, said this:

"31. In my judgment, para 289A(iv) should be construed so as to further the policy of enabling persons whose relationships have permanently broken down as a result of domestic violence before the end of the probationary period to be granted indefinite leave to remain. A construction which precludes an application, whose relationship has in fact broken down as a result of domestic violence, from proving her case by producing cogent relevant evidence would defeat the evident purpose of the rule. The purpose of para 289A(iv) is to specify what an applicant has to prove in order to qualify for indefinite leave to remain during the probationary period: viz that the relationship has been caused to break down permanently as a result of domestic violence. It is not the purpose of para 289A(iv) to deny indefinite leave to remain to victims of domestic violence who can prove their case, but cannot do so in one of the ways that have been prescribed by the Secretary of State in his instructions to case workers."

[I interpolate that reference is of course to the IDIs.] Then, at paragraph 38 of the judgment:

"For the reasons that I have given, I would hold that para 289A(iv) gives the caseworker a discretion to decide what evidence to require the applicant to produce in the individual case. In exercising that discretion, I would expect the caseworker usually to start by applying the guidance given in section 4 of chapter 8 of the IDIs. But if the applicant is unable to produce evidence in accordance with that guidance, it would seem to me that the caseworker should seek an explanation for his or her inability to do so. If the applicant provides a reasonable explanation for her inability to produce such evidence, then the caseworker should give the applicant the opportunity to produce such other relevant evidence as she wishes to produce."

12. Having on the strength of the JL case accepted that he might consider evidence without the IDI categories, what was the immigration judge's approach in this case? This is what he said:

"32. The list of acceptable evidence of domestic violence as documented in the IDU already referred to is not an exclusive list, but is an indication of the nature of the documentary evidence that will be necessary to enable the appellant to prove to the necessary standard that she has suffered domestic violence. The two medical reports and the record of the account given by the appellant to the Crime and Anti-social Behaviour Service are documnents I am entitled to consider as part of the evidence before me in determining whether domestic violence has occurred. However none of these documents confirms that the appellant has suffered physical or mental injury as a result of the conduct of her husband. The most that the report prepared by the Crime and Anti-Social Behaviour Service indicates is that the appellant gave an account of the problems she had suffered. The medical report of Dr David makes no reference to domestic violence suffered by the appellant. The report of Dr Sivaprasad does refer to a bruise on the lower part of her spine which the appellant claimed was caused by her husband, but there is no indication that the bruise was consistent with the appellant's complaint. The letters from the Newham Asian Womens' Projectindicate that the appellant is receiving counselling and that 'as a result of domestic violence she is suffering from flashbacks and unable to sleep at night.' However that finding is not made by a person who has any psychiatric qualifications and is also made on the basis of what the counsellor has been told by the appellant.

33. from the evidence before me it is clear that this marriage had broken down prior to the appellant's return to India on 31 December 2004. it is also apparent that the main reason for the appellant returning to the United Kingdom on 5 November 2005 was a result of advice she received from Counsellor Gangadharan. There is then evidence that after her return when she visited her husband's home in order to collect her belongings, her behaviour was such that the Bradford County Court felt able to make a restraining order against her with a power of arrest attached. She confirms that she received notice of these proceedings but did not attend court to oppose the application by her husband, ostensibly on the advice of her solicitors. I am unable to accept that explanation.

34. In the light of all the evidence, both written and oral, which I have looked at in the light of my interpretation of paragraph 289A and the Tribunal's decision in JL, although I can find that this marriage has permanently broken down, I am unable to find as probable that it was a result of domestic violence suffered by the appellant. Not only has she failed to produce any documentary evidence as listed in the relevant IDI, but she has failed to produce any other documentary evidence which might be sufficient to establish her claim."

13. Mr Hawkin for the appellant seeks to attack these conclusions on fresh grounds, somewhat different from what was originally advanced. The Secretary of State is not prejudiced by this change of tack, though it is submitted on his behalf in a supplementary note which confronts the fresh grounds that the appellant should not be allowed to ventilate them because they are brought so late. However, that is not frequently pursued; and it seems to me right that we should confront the fresh grounds, though ultimately, as I shall show in a moment, the resolution of this case depends on what is in fact a refinement even from those. It is enough to say that it is important that decisions in this area -- the area of immigration control (in common indeed with administrative public decisions generally) – have to be properly scrutinised by the appropriate appellate court.
14. Counsel took three points in his fresh skeleton argument. First, it is submitted that the immigration judge appears (paragraph 32) to have thought that actual injury had to be proved if domestic violence was to be made out. But the definition of domestic violence in the IDIs is:

"Any incident of threatening behaviour, violence or abuse (psychological, physical, sexual or emotional)"

15. So it is said here the immigration judge has taken all too narrow an approach. Secondly it is said that, given the AIT decision in JL and now this court's decision in Ishtiaq, the immigration judge's comment that the list of acceptable evidence in the IDIs "is an indication of the nature of the documentary evidence that will be necessary" is altogether too restrictive, and indicates that he felt that in truth only documentary evidence would do. Third and last, the immigration judge's approach to the detailed evidence lacked proper scrutiny and failed to accord proper weight to the material. For his part, Mr Johnson for the Secretary of State is at pains to submit that the real basis of the immigration judge's decision (see paragraph 34) was that although he accepted that the marriage had broken down, he could not find that this was as a result of domestic violence. Mr Johnson proceeded to submit -- and this has been the burden of his argument before us this morning -- that the reality of this case was that, even if one accepts the appellant's case on domestic violence at its highest, there is no evidence that could persuade a reasonable tribunal that that violence was causative of the breakdown of the marriage.
16. In summary, the points he takes are these: it was the husband who sent the appellant away to India; it was the husband who was filing for divorce, and there is evidence that the appellant, for her part, had hoped that the marriage might be saved. Those points, as matter of fact -- given the history of the case and the context in which they are made -- undoubtedly possess some force. But my difficulty with the case -- and it is not precisely encapsulated even in the appellant's new arguments, though it is to some extent reflected in them -- is that, as I read paragraphs 32-34, the immigration judge made no clear findings as to whether he accepted that there had been domestic violence or not -- whether he had accepted that there had been any domestic violence or violence on the scale suggested. My impression is that he was not satisfied that there had been any such violence, but if that is the case there is, as I see it, a serious want of reasoning to explain why that was so. I apprehend the immigration judge may have been unconsciously seduced by the emphasis on documentation in the IDIs. He had, after all, heard the appellant's oral testimony. Although there are some inconsistencies in different accounts that she has given, for that evidence to be dismissed -- as it were lock, stock and barrel, may be open to the immigration judge, but it would require clear and forceful reasoning to explain why such a course was being taken.
17. In fact, there is no explanation of why the immigration judge rejected the appellant's account if he did so. Her account is at least supported by some other evidence, albeit largely hearsay, and in some respects self-serving. The immigration judge makes sceptical observations about some of it, but he does not explain why none of it helps the appellant at all. It is right to say -- this is of some importance -- that much of the appellant's case involved threats or other forms of cruel treatment short of physical violence; but, as I have shown, the meaning of domestic violence within the Rule embraces just such forms of conduct. If the immigration judge was going to reject the whole case as to the events of domestic violence, whether involving bodily attack or not, much more penetrating reasoning would have been required. He may have been entitled to reject it or, if he accepted it, he might well have accepted the points now made by Mr Johnson as to causation; but in the absence of any satisfactory finding as to the domestic violence that was alleged, those possibilities cannot, in my judgment, assist the respondent.
18. It is not clear whether, had the immigration judge accepted the factual case about the violence, he would have held it had no causative force in the breakdown of the marriage. I would not accept Mr Johnson's submission that, as the evidence stands, no reasonable immigration judge could conclude (putting the evidence at its highest for the appellant) that the violence was a substantial cause of the breakdown.
19. Mr Johnson's points have considerable force, as I have already acknowledged, but on the appellant's case it may be said that the husband was a violent and cruel man, and those characteristics of his could not be separated out from the end of the marriage. In any event, the immigration judge offers no more reasoning on the causation question than on the question whether domestic violence had taken place. It is therefore, in my judgment, unsatisfactory for want of proper reasoning. The requirement of proper reasoning is a legal standard that has to be met. Accordingly, the decision is flawed in law, and in my judgment this appeal should be allowed.

Lord Justice Rix:

20. I agree.

Lord Justice Lloyd:

21. I also agree.

Order: Appeal allowed