England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE ASYLUM AND IMMIGRATION TRIBUNAL

		Royal Courts of Justice Strand, London, WC2A 2LL
		06/07/2010

Lord Justice Richards :

1. The appellant is a national of Pakistan who entered the United Kingdom in December 2005 on a visa which gave her leave to enter as the spouse of a person present and settled here. She returned to Pakistan in August 2007 but came back to this country shortly before her visa was due to expire in October 2007. She then submitted an application for indefinite leave to remain as a victim of domestic violence. The application was refused by the Secretary of State. An appeal to the AIT was dismissed by Designated Immigration Judge Manuell. It was found on reconsideration that the judge had erred materially in law, and the matter proceeded to a de novo hearing before Designated Immigration Judge Woodcraft who, in a determination promulgated on 22 December 2008, again dismissed the appeal against the Secretary of State's decision. The appellant now appeals against that determination.
2. The main issues in the appeal concern the judge's application of paragraph 289A of the Immigration Rules, which provides:

"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:

(a) was admitted to the United Kingdom or given an extension of stay for a period of two years as the spouse or civil partner of a person present or settled here; and

(b) the relationship with their spouse was subsisting at the beginning of the relevant period of leave or extension of stay referred to in (a) above; and

(c) 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. There is a subsidiary issue as to whether the appellant's removal to Pakistan would be in breach of article 3 or 8 ECHR by reason of the risk of suicide.

The tribunal's determination

4. The evidence before the designated immigration judge included written and oral evidence from the appellant herself and from her maternal uncle. The essence of her account was that she married her husband (a first cousin) in Pakistan in August 2004. He then returned to the United Kingdom, where she joined him at the end of 2005 and lived with him and his parents at the family home. The marriage was happy until March 2007, when a sudden change came over her husband. His mood ranged from being cold and distant towards her to being angry and raging at her. He pushed her at times and she feared injury. On 23 April her emotional state deteriorated to the point where she attempted suicide by taking an overdose. She was taken to hospital where she remained for eight days. She and her husband did not live together after this incident, because he moved out of the family home. In August she went to visit her parents in Pakistan because she was so depressed, but she came back to this country because her family told her to return to her husband. On her return she moved in with her maternal uncle.
5. There was an expert report from a consultant psychiatrist, Dr Perinbanayagam, on the appellant's mental state and the question of suicide risk. He assessed the appellant in August 2008. His diagnosis was of a moderate to severe depressive disorder with post traumatic stress disorder. In his opinion her current presentation was closely linked to things that went wrong in her marriage. He advised against return to Pakistan even though treatment facilities were available in Pakistan for her condition. His reason was that hostility in her community towards women who were separated or divorced from their husbands, coupled with avoidance or hostility by her own family, could cause her depression to become very severe, to the extent where she could kill herself.
6. There was also an expert report from a consultant anthropologist, Dr Balzani, on the position of women in Pakistan, including the issue of domestic violence, and the problems that the appellant would face if she returned to Pakistan.
7. In his findings the judge dealt first with the issue of domestic violence. At para 48 he said that there was no allegation of actual physical violence by the appellant's husband against her: "she refers to pushing which may or may not be unpleasant but … does not amount to the level of seriousness required by the Rules". Part of her evidence was that in June or July 2006 her husband had been convicted of violent criminal offences for which he had subsequently received a three year prison sentence. On that issue, given the substantial challenges to the appellant's credibility, the judge attached significance to the absence of any supporting documentation. He also said: "In any event if the Appellant's case is that her husband was a violent man she has the difficulty to overcome that he was not physically violent to her".
8. At para 49 he considered her claims that her husband had made threats against her. He referred to her evidence that no-one else in the house had heard those threats. He said that it strained credibility to breaking point to suggest that the husband's parents had no idea of stresses and strains in the marriage caused by a very abrupt change in behaviour by their son in the days leading up to the overdose. He did not find this part of the evidence to ring true.
9. It was accepted that the appellant had taken an overdose, and the judge said at para 50 that this appeared to be a relatively serious incident which threatened her life. Even in relation to this, however, he referred to a number of discrepancies in her account which in his view undermined her general credibility. One example was an inconsistency in her account of who found her after she had taken the overdose: he said that if she had been driven to such a desperate act by domestic violence he would have expected her to be consistent as between her statement to the solicitors and what she told the psychiatrist Dr Perinbanayagam. Another discrepancy, considered at para 51, was that she had given the duty psychiatrist at the hospital a very different account of what led up to the overdose from the account she gave to the Secretary of State and the tribunal. I shall return to this point because one of the grounds of appeal relates specifically to it.
10. The judge went on to say at para 52 that the appellant was discharged from hospital because she appeared well and the doctors were satisfied it was safe to do so. He found that the attempt to link alleged violence from her husband with this episode was a gloss put on the matter by the appellant to justify her application.
11. In para 53 he said that taking the evidence as a whole and looking at matters in the round he found that the appellant's inability to be consistent about the details of her case undermined the veracity of her present account. In the following paragraph he add that he found that she had exaggerated the degree of isolation and alleged hostility she faced from her in-laws in order to bolster her claim.
12. At para 56 the judge stated: "I do not find that the Appellant has been the victim of domestic violence. I find that she has described difficulties in her marriage and that her husband is no longer with her." The circumstances in which her husband came to leave the matrimonial home in April after she had taken the overdose were obscure. It was noted that the appellant had not instituted divorce proceedings and that she continued to live with her in-laws until her return to Pakistan.
13. As to the appellant's evidence that when she returned to Pakistan the community were hostile to her, the judge found at para 57 that her alleged ostracism by others in her community was an embellishment to her account and that such hostility had not been shown to exist.
14. In conclusion on the issue of domestic violence, the judge stated at para 58:

"Overall … therefore I do not find that the Appellant has suffered from domestic violence. There is a question mark over whether the marriage itself has broken down. She has still not presented divorce proceedings despite having told people that she was going to do that. The letters from the family members are very brief and do not take matters any further. I only have her word and to a lesser extent that of her maternal uncle … that this has occurred. There are very real concerns surrounding the Appellant's credibility such that I cannot be satisfied on this point. Even if the Appellant can show on the balance of probabilities that her marriage has broken down I do not find that she can show that the breakdown of the marriage is linked in any way to the alleged domestic violence. Whatever the reason for the breakdown of the marriage it was not in my view because of domestic violence (which the Appellant cannot show happened) and thus the Appellant cannot bring herself within the Immigration Rules."

15. He then turned to issues under articles 3 and 8 ECHR which for the most part are not pursued on this appeal. Because it is of some relevance to the issue of suicide risk, however, I should note that in paras 60-61 he rejected, as embellishments, the appellant's evidence that she was pressured by her family in Pakistan into coming back to the United Kingdom and the suggestion that she might be at risk of an honour killing if she were removed to Pakistan. At para 64 he found that her removal to Pakistan would result in her rejoining her immediate family there.
16. The judge turned finally to the issue of suicide risk, holding that the circumstances did not engage article 3 or article 8. I will come back to this issue later.

The grounds of appeal

17. Permission to appeal was granted by Longmore LJ in respect of three specific grounds advanced at the permission hearing by Mr Abid Mahmood, counsel for the appellant. Pursuant to the order of Longmore LJ, the written grounds of appeal were subsequently amended in line with the submissions he had made at the hearing. The amended grounds contend, in summary, that (1) the evidence before the tribunal showed that domestic violence had been perpetrated against the appellant, and the tribunal erred in looking for actual physical violence; (2) there were certain errors of fact, amounting to errors of law, in the tribunal's decision concerning domestic violence; and (3) the tribunal erred in its assessment of the risk of suicide.
18. Grounds (1) and (2) face a fundamental initial difficulty that under paragraph 289A of the Immigration Rules the issue of domestic violence does not arise unless the relevant relationship has broken down; yet the judge, on the basis of his adverse credibility findings, was not satisfied that the appellant's marriage had broken down (see [14] above), and the amended grounds do not challenge either the finding that the marriage had not broken down or the adverse credibility findings on which it was based. At the hearing of the appeal, Mr Mahmood sought to overcome that difficulty by seeking permission to add a fourth ground of appeal which, generously interpreted, would be just about sufficient to challenge the finding that the marriage had not broken down. The way he put it orally was that the application of the wrong test to the issue of domestic violence infected the judge's approach to the assessment of credibility and therefore the finding as to breakdown, and that the finding as to breakdown was not reasonably open on the evidence. Miss Broadfoot, for the Secretary of State, objected to this late additional amendment.
19. There are strong reasons of principle why a late amendment should not be entertained in circumstances such as these. Nonetheless we reserved our position on the issue at the hearing until we had heard how precisely Mr Mahmood put his overall case on the issue of domestic violence and the application of paragraph 289A.

Domestic violence

20. The December 2009 version of the Immigration Directorate Instructions (chapter 8, section 4, para 1.3) gives the definition of "domestic violence" used by the Home Affairs Committee of the House of Commons in a report in 1993:

"Any form of physical, sexual or emotional abuse which takes place within the context of a close relationship. In most cases, the relationship will be between partners (married, co-habiting or otherwise) or ex-partners."

21. A more recent report on the subject by the Home Affairs Committee, Domestic Violence, Forced Marriage and 'Honour'-Based Violence (Session 2007-08, 6^th report) states at para 4 that definitions of domestic violence vary. It refers to a gender-based definition used by the United Nations ("Any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women …"), but it uses as a working definition for the purposes of its inquiry a gender-neutral definition which is said to be commonly adopted across the UK Government:

"Any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults who are of have been intimate partners or family members, regardless of gender or sexuality."

22. A similar definition is to be found in the UK Border Agency guidance document, Victims of Domestic Violence: Requirements for Settlement Applications. Yet another definition is used for the purposes of the Family Division's Practice Direction (Residence and Contact Orders: Domestic Violence) (No.2) [2009] 1 WLR 251, which states at para 2 that the term "includes physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may have caused harm to the other party or to the child or which may give rise to the risk of harm".
23. The general thrust of all those definitions is much the same and it is unnecessary for present purposes to choose one in preference to the others when considering the term "domestic violence" in paragraph 289A of the Immigration Rules.
24. Mr Mahmood accepted that for conduct to constitute domestic violence it must reach some minimum level of seriousness, which will depend upon context and particular circumstances. That is inherent, as it seems to me, in the very concept of "violence" or "abuse". It is also consistent with the underlying policy as indicated by the categories of documentary evidence listed in the guidance (medical reports confirming injuries, police reports of attendance at domestic violence incidents, non-molestation orders and the like), though AI (Pakistan) v. Secretary of State for the Home Department [2007] EWCA Civ 386 establishes that an applicant is not limited to evidence within those categories. The definitions used by the United Nations and by the Family Division practice direction point in the same direction by their references to harm or the likelihood or risk of harm.
25. The first strand in Mr Mahmood's submissions was that the judge applied the wrong legal test when considering domestic violence. The specific way in which it is put in the first ground of appeal is that the judge was "looking for actual physical violence", but Mr Mahmood also submitted orally that the judge set the bar too high in considering what level of seriousness was required for conduct to amount to domestic violence.
26. In my judgment, that line of argument is clearly unsustainable. The judge considered all aspects of the appellant's allegations of domestic violence. He referred first to her evidence that her husband had pushed her. When dealing with that evidence earlier in his determination, he pointed out that the appellant had not said that this caused her injury, only that she feared that it would lead to him causing her injury. The judge found that the pushing did not reach the minimum level of seriousness to constitute domestic violence (see [7] above). He then considered the appellant's other principal complaint, that her husband had made threats against her. He found that this part of the evidence did not ring true (see [8] above). He went on to consider the appellant's suicide attempt, rejecting the alleged link between this and violence from her husband (see [9]-[10] above). All those findings were reasonably open to the judge on the evidence. His reasoning reveals no legal error in relation to the test of domestic violence.
27. Another strand in Mr Mahmood's submissions brought in various objective materials showing an enhanced appreciation in recent years of the importance and complexities of the issue of domestic violence. He referred in particular to the 2007-08 report of the Home Affairs Committee and to the Family Division practice direction mentioned at [21]-[22] above. Those materials were not, so far as I am aware, placed before the judge. In any event, whilst they assist with a general understanding of the issue, they contain nothing to support the contention that the judge erred in law in his approach to the issue.
28. Mr Mahmood also made extensive reference to the report of Dr Balzani, which was before the judge (see [6] above). He submitted that the report showed the proper context for the evaluation of the appellant's allegations of domestic violence and that the judge was unduly dismissive of the report and considered the appellant's evidence without regard to the context shown by it. Again I would reject the submission. The judge plainly had regard to the report, which he considered at paras 30-33 of his determination. There is nothing to show that he failed to take it into account when considering the appellant's evidence. There is nothing in the report that made it unreasonable for the judge to reach the findings he did.
29. Mr Mahmood submitted that the judge was "striving not to evaluate but to reject the evidence" of domestic violence. That is an expression taken from the judgment of Sedley LJ in Y and Another (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 362, in which a different determination by the same judge was criticised. Mr Mahmood took us through the relevant part of the judge's determination in this case, commenting on various aspects of the reasoning and contending that the approach here was flawed in the same way as in Y and Another (Sri Lanka). I disagree. It is true that some of the points relied on by the judge, in particular as regards discrepancies in the appellant's account, are relatively weak and it is possible that a different judge might have been more favourable to her. But there is nothing in the judge's analysis that could justify a finding that he was striving to reject the appellant's evidence rather than to evaluate it or was approaching the matter otherwise than in a proper judicial manner.
30. The second amended ground of appeal, that there were errors of fact amounting to errors of law in the determination, largely fell away during the hearing. It relates to para 51 of the determination, where the judge said this with reference to an examination of the appellant by a psychiatrist towards the end of her stay in hospital:

"When she was finally seen by the duty psychiatrist at the hospital the records show that she did not say that she had been a victim of domestic violence even though that was a very good opportunity for her to give that information. She had no other members of her family there to intimidate or otherwise influence her and she was being interviewed by a skilled professional accustomed to dealing with patients in desperate circumstances. Nevertheless she gave a very different account of what had led up to the overdose to the one which she now gives to the Respondent and to this Tribunal. She minimised the difficulties with her husband referring to a small argument as having taken place. I do not find as was suggested that she was confused. She was interviewed towards the end of her stay in hospital. She had had time to reflect on matters and she was being interviewed in a non threatening environment. She may not now wish she had spoken so candidly to the psychiatrist in the hospital but that is not a good argument for me to disregard her comments or their effect on her evidence."

31. It is contended in the grounds, with elaboration in the written skeleton argument, that the medical records show that there had in fact been complaints by the appellant about family difficulties which led to the overdose, and also that there were members of the family around her in hospital which would have prevented her from being more open with the hospital about the details of the domestic violence. None of that, however, touches the point made by the judge in para 51. The judge's point is that the interview with the psychiatrist at the end of the stay in hospital was conducted in the absence of other family members and in circumstances which conduced to the giving of a true account. The records show that the interview was conducted through an interpreter, but it is clear that this was an official interpreter and not a family member, and in oral evidence the appellant said that there was no-one other than the interpreter present when she spoke to the doctor. Accordingly, there is simply no basis for doubting the factual accuracy of the judge's para 51, let alone for finding an error of law in it. The fact that there were family members around at other times does not meet the judge's point at all.
32. Pulling those various threads together, I am satisfied that there is no substance to the appeal against the judge's rejection of the appellant's claim under paragraph 289A of the Immigration Rules. I would refuse permission to re-amend the grounds of appeal so as to include a challenge to the finding that the marriage had not broken down. If that finding stands, it is in itself a fatal obstacle to the appellant's case. But there was in any event no legal error in the judge's approach to the issue of domestic violence.

Suicide risk

33. At paras 65-66 of his determination, the judge dealt as follows with the risk of suicide:

"For the sake of completeness I should add one further point. It was not argued before me that there was a risk of suicide if the Appellant were returned to Pakistan. The matter is however touched on in Dr Perinbanayagam's report and I therefore briefly mention it here. What is the risk that the Appellant will self-harm in the event that she receives notification of an adverse decision? In the event of such an adverse decision what arrangements should be made for her transportation to Pakistan? Upon arrival are there suitable facilities for her reception? The leading authority on the approach which the Tribunal should adopt in such a case is the Court of Appeal decision in … J v Secretary of State for the Home Department [2005] EWCA Civ 629.

There is no evidence to suggest that the Appellant would self harm in the event of an adverse decision. She has already received both the Respondent's decision and DIJ Manuell's decision without such a reaction. The Respondent has well established protocols for dealing with vulnerable returnees and there is no suggestion they would be inadequate to the task here. Pakistan has medical facilities which could treat any problems the Appellant might have and there is thus no risk of harm due to lack of suitable facilities. I do not find that the Appellant can show that her claim engages the Human Rights Convention whether for Article 3 or Article 8 or otherwise."

34. Mr Mahmood's written submissions rely on Y and Another (Sri Lanka), cited above, both for its criticisms of the same judge's analysis of suicide risk in that particular case and for its general observations as to the possibility of a subjective fear of torture or sexual abuse giving rise to a breach of article 3 in a suicide case even where that fear lacks an objective foundation. It is submitted that in the present case a further attempt at suicide is a real possibility. Mr Mahmood did , not develop the case any further in his oral submissions.
35. I can see no error of law in the judge's approach to the issue. It is unsurprising that he dealt with it briefly, given that it had not been raised in argument before him and he was simply covering it of his own motion for the sake of completeness. He directed himself correctly by reference to the principles set out in J v. Secretary of State for the Home Department (which the decision in Y and Another (Sri Lanka) did not alter). The one area where he might have said more related to the risk of suicide on return to Pakistan. Dr Perinbanayagam had expressed concern about the effect on the appellant of hostility in her community and from her family if she were removed to Pakistan, saying that this could lead to suicide (see [5] above). It is clear, however, that the judge had this in mind (he had summarised the report at paras 25-29 of the determination) but that he did not accept the appellant's evidence on the subject of hostility or ostracism (see [13] and [15] above). In any event the doctor had stated that treatment facilities were available in Pakistan for the appellant's condition, and there was no suggestion that they would be inadequate for the purpose if her mental state were to decline. In short, the judge dealt with the issue correctly and sufficiently.

Conclusion

36. For the reasons given I would dismiss the appeal.

Lord Justice Thomas :

37. I agree.

Lord Justice Ward :

38. I also agree.