COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION APPEAL TRIBUNAL
Mr A.L. McGeachy (Senior Immigration Judge), Mrs M. Padfield and Dr C.J. Winstanley
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE DYSON
LORD JUSTICE THOMAS
| Ahmed Iram Ishtiaq
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Jenni Richards (instructed by Treasury Solicitors) for the Respondent
Hearing dates: 28 March 2006
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Lord Justice Dyson:
"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
(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; and
(iii) the relationship with their spouse, civil partner, 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."
The relevant statutory provisions
"The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; and section 1(4) above shall not be taken to require uniform provision to be made by the rules as regards admission of persons for a purpose or in a capacity specified in section 1(4)….."
"The rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right to abode shall include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules…) persons coming for the purpose of taking employment, or for the purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom."
"(1) If a form is prescribed for a particular kind of application under this Act, any application of that kind must be made in the prescribed form.
(2) If procedural or other steps are prescribed in relation to a particular kind of application under this Act, those steps must be taken in respect of any application of that kind.
(3) "Prescribed" means prescribed in regulation made by the Secretary of State.
(3A) Regulations under this section may provide that a failure to comply with a specified requirement of the regulation-
(a) invalidates an application,
(b) does not invalidate an application, or
(c) invalidates an application in specified circumstances (which may be described wholly or partly by reference to action by the applicant, the Secretary of State, an immigration officer or another person).
(4) The power to make regulations under this section is exercisable by statutory instrument.
(5) Any such statutory instrument shall be subject to annulment in pursuance of a resolution of either House of Parliament."
"(1) The form set out in Schedule 7 is hereby prescribed for an application for indefinite leave to remain in the United Kingdom:
as a work permit holder,
… … … ….
(i) as a victim of domestic violence,
for the purposes of the immigration rules."
"11. The following procedures are hereby prescribed in relation to an application for which a form is prescribed in any of regulation 3 to 9 above:
(a) the form shall be signed and dated by the applicant…..;
(b) the application shall be accompanied by such documents and photographs as specified in the form; and
(c) the application shall be:
(i) sent by prepaid post to the Immigration and Nationality Directorate of the Home Office, or
(ii) submitted in person at a Public Enquiry Office of the Immigration and Nationality Directorate of the Home Office.
12. – (1) A failure to comply with any of the requirements of regulation 11(a) or (b) above to any extent will only invalidate an application if:
(a) the applicant does not provide, when making the application, an explanation for the failure which the Secretary of State considers to be satisfactory,
(b) the Secretary of State notifies the applicant, or the person who appears to the Secretary of State to represent the applicant, of the failure within 21 days of the date on which the application is made, and
(c) the applicant does not comply with the requirements within a reasonable time, and in any event within 28 days, of being notified by the Secretary of State for the failure."
"(4) On an appeal under section 82(1) or 83(2) against a decision the Tribunal may consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision."
"(3) The Tribunal must allow the appeal in so far as it thinks that-
(b) a discretion exercised in making a decision against which an appeal is brought or is treated as being brought should have been exercised differently.
(6) Refusal to depart from or to authorise departure from immigration rules is not the exercise of a discretion for the purposes of subsection (3)(b)".
Section 4 of chapter 8 of the IDIs
"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 (but not an ex parte or interim order);
(ii) a relevant court conviction against the sponsor; or
(iii) full details of a relevant police caution issued against the sponsor".
"It is often difficult for victims of domestic violence to produce the documentary evidence of violence as set out at 1.2 above, 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:
(i) a medical report from a hospital doctor confirming that the applicant has injuries consistent with being a victim of domestic violence; OR a letter from a GMC registered family practitioner who has examined the applicant and is satisfied that the injuries are consistent with being a victim of domestic violence;
(ii) an undertaking given to a court that the perpetrator of the violence will not approach the victim;
(iii) a police report confirming attendance at the home of the applicant as a result of a domestic violence incident;
(iv) a letter from a social services department confirming its involvement in connection with domestic violence;
(v) a letter of support or report from a domestic violence support organisation which is identified in 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".
"Applying the relevant law to the established facts I find that the Appellant has been discriminated against in the working of the Respondent's policy. If the policy is to make any sense then it has to set requirements that can be sensibly met by applicants. In the present case it is my judgment that with regard to Asian women this policy sets impossible or extremely difficult requirements that effectively stifle the very relief that the Immigration rules seek to provide. For rules to be effective the policy underpinning the administration of those rules and the requirements placed upon applicants must strive to work fairly and effectively for all applicants, not just those that can communicate effectively in English or those whose cultural backgrounds free them from the constraints suffered by women in other more restrictive cultures."
"….. In the present case a simple application of the rules on the policy set out above would effectively mean that the Appellant would never have an argument for review under Article 8, there would be nothing exceptional; she would simply have failed to comply with the Immigration rules. The Appellant here only finds herself outside the Immigration rules by virtue of her inability to comply with the requirements of a policy that presupposes an adequate command of English. In the present case I find that the requirements of the rules breaches the Appellant's protected rights under Article 14 in the sense that the rules discriminate against an Asian woman in the Appellants position."
The first issue: the proper construction of para 289A(iv)
"There are, in the Secretary of State's judgment, clear policy justifications for these requirements. The domestic violence provisions exempt victims from the requirement to live in a subsisting relationship with the other party for two years and to intend to do so permanently before being granted indefinite leave to remain. However, it is easy for people to allege falsely that they have suffered domestic violence in order to obtain indefinite leave to remain. Such an allegation undermines immigration control and can seriously damage the reputation of the former partner as well as causing him or her considerable distress. In order to safeguard these provisions from abuse, the Secretary of State requires allegations of domestic violence to be supported by specific evidence, as listed in the IDIs, and not simply by the testimony of the applicant to the caseworker or the immigration judge. This requirement strikes the balance between ensuring that genuine victims of violence are helped and making it more difficult for false allegations to be advanced. The list of acceptable evidence given in the IDI is quite flexible, including police reports, medical reports, letters of support from appropriate domestic violence support organisations as well as court injunctions or convictions. In the Secretary of State's judgment and experience, a person who has genuinely been the victim of domestic violence can usually provide the relevant evidence without difficulty. The particular types of evidence that will suffice have been carefully chosen. It is important to have rules that are capable of being applied easily and consistently, which in turn promotes transparent and sound decision-making and provides for a system that can be readily operated. Furthermore neither those who determine immigration applications nor immigration judges have special expertise in assessing whether a relationship has broken down because of domestic violence, as opposed to those domestic authorities and agencies who are skilled in making such assessments."
"Mr Pipe referred first of all to the provisions of paragraph 289A(iv). He argued that the words 'may require' in relation to the evidence that an applicant needs to produce to the Secretary of State clearly gives a discretion. However, he had to agree that the effect of the rule is to enable the respondent to specify what evidence is to be produced before a decision maker can be satisfied that the appellant's relationship was caused to permanently break down as a result of domestic violence. The respondent has so specified and he has done so in the IDI. It would not be practicable or fair for the respondent to have different provisions in every case. It is entirely reasonable for him to have set the requirements out in IDI. It is true that they have not been incorporated in a rule. The use of the word 'may' is clearly intended to enable the Respondent to make such provisions, and he has done so. That was the extent of the discretion imposed by the rule and it is not one that is reviewable by an Immigration Judge. "
The second issue: the reasoning of the AIT in JL (Domestic Violence: evidence and procedure) India  UKAIT 58
The third issue: the articles 8 and 14 of the Convention
Lord Justice Thomas:
Lord Justice Chadwick: