England and Wales High Court (Administrative Court) Decisions

Butler, R (on the application of) v Secretary of State for the Home Department [2002] EWHC 854 (Admin) (26th April, 2002)

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		26th April 2002

MR JACK BEATSON Q.C.:-

1. This case concerns the concession outside the immigration rules for the victims of domestic violence. Under this a person granted limited leave to enter the U.K. as the spouse or unmarried partner of a British citizen for a probationary period of one year, whose marriage or relationship breaks down during the probationary period as a result of domestic violence, may be granted indefinite leave to remain in the U.K. provided that there is proof to a specified standard that the person has been the victim of domestic violence during the probationary period while the marriage or relationship was subsisting.

2. The Claimant, a Russian citizen, challenges the Secretary of State’s decision dated 26 July 2001, confirming a decision made on 1 November 2000, that she cannot benefit from the concession. The Claimant last entered the U.K. on 20 September 1998 on a one-year student visa. On 6 November 1998 she married Mr Eric B, a British citizen she had met on a previous visit to the U.K. in August 1998, and, following an investigation by the immigration authorities, on 29 September 1999 was granted limited leave to remain for 12 months as Mr B’s wife.

3. The marriage was a difficult one. For instance, the Claimant informed the police that some three months after the marriage she had told Mr B that she did not want to be married to him any more or to sleep with him, she returned her wedding ring, and said she would pay him rent for the house. The marriage was also a stormy one. In July 1999 Mr B complained to the police that the Claimant assaulted him with a bottle and she was arrested and interviewed by the police but Mr B later withdrew the complaint. On 14 December 1999 Mr B complained to the police that the Claimant, who was pregnant, had assaulted him with a lamp. When interviewed by the police the Claimant stated that she had in fact been defending herself against violence from Mr B. She was charged and bailed and it was a condition of her bail that she move out of the former matrimonial home and have no contact with Mr B. The Claimant left the matrimonial home on 16 December 1999.

4. On the 21 December Mr B instituted divorce proceedings. He also declared to the immigration authorities that that the marriage had broken down and that his wife had left the matrimonial home. As a result of this, on 22 December 1999 the Secretary of State issued a notice curtailing the Claimant’s limited leave to remain. An appeal against this decision was lodged on 24 December 1999. In January 2000 Mike Hancock, a local councillor and M.P. wrote to Barbara Roche M.P, the Minister of State for Immigration and Asylum, outlining the stormy nature of the relationship and questioning the circumstances in which the decision to curtail the Claimant’s leave to remain had been made. The Minister responded on 13 March stating that the decision to curtail leave had been made as a result of Mr B’s statement to the immigration authorities that that the marriage had broken down but stating that she had asked that it be reviewed by a senior caseworker.

5. The trial of the alleged assault on 14 December 1999, which was due to take place on 9 March 2000 before the Portsmouth magistrates, was adjourned in view of the advanced stage of the Claimant’s pregnancy; she gave birth to a son on 27 March 2000. When the adjourned trial took place on 10 May she was found not guilty. By then the couple were divorced since, on 27 March 2000, Mr B had been granted a decree nisi.

6. On 26 May 2000 the appeal against the curtailment of the Claimant’s limited leave to remain was withdrawn on the basis that representations would be made seeking consideration of her case outside the Immigration Rules. On 14 June 2000 the Claimant obtained a without notice non-molestation order from the Portsmouth County Court forbidding Mr B from using or threatening violence against her, or intimidating harassing or pestering her. The order, which was coupled with a power of arrest, was made until 23 June when the matter was to come before the court on notice. On 23 June the orders were renewed for a 12 month period, with the power of arrest being granted until 22 December 2000. In her witness statement for the injunction proceedings the Claimant complained of Mr B’s behaviour after the separation. In particular she stated in paragraph 8 that “[t]he reason that I am applying for non-molestation and occupation orders is that recently Mr B has taken to following me and delivering things to my home in the knowledge or expectation that that will upset me”. She also stated, in paragraph 10, that before the separation his behaviour included forcing her against her will to have sexual intercourse with him, telling her that if she did not he would inform the immigration service, and frequent violence to her leaving her on several occasions with quite serious bruising. She stated that the incident which resulted in her arrest in December occurred when Mr B attacked her after she had declined to have sex with him because she was bleeding and her doctor had advised her to abstain from intercourse.

7. Representations outside the Immigration Rules were made by the Claimant’s representatives on 13 July 2000. These stated inter alia that the Claimant had been subjected to domestic violence, had obtained an injunction, and was not in a position to return to Russia. They also relied on Mr B’s conduct and character. There was no express reference to the domestic violence concession. Mike Hancock M.P. wrote a further letter to the Minister on 13 July. On 19 September 2000 the Minister replied stating that there was no basis for Mrs B and her son to remain in the U.K.. Mr Hancock wrote again on 25 September and on 1 November the Minister replied stating that the Claimant was not entitled to benefit from the domestic violence concession because “the non-molestation injunction Mrs B obtained against her husband was as a result of his actions after the marriage had already broken down and the couple were not cohabiting”. The letter also stated that “to benefit from the concession on domestic violence there needs to be evidence that violence took place during the probationary year of marriage and that the marriage broke down as a result. Mrs B cannot benefit from the concession and her circumstances are not sufficiently compelling as to outweigh the normal course of removal when someone overstays”. Mr Hancock wrote again on 7 November stating inter alia that he had witnessed the state the Claimant was in just after she took a beating from her husband and that he would be prepared to go to court to state that the violence took place long before the marriage broke down. The Minister responded on 30 November. She stated that the case had been reviewed in the light of Mr Hancock’s additional comments but that she was not satisfied that Mrs B benefited from the domestic violence concession because, inter alia the Claimant’s non-molestation order against her husband “was obtained on the basis of his behaviour towards her after the marriage had broken down and they were no longer living together”.

8. Judicial review proceedings challenging the decision of 1 November were launched on 20 December 2000. On 12 March 2001 permission was refused by Sullivan J and on 11 June 2001 Stanley Burnton J adjourned a renewed application so that the Secretary of State could consider additional material in support of the claimant’s application. This consisted of a statement by the Claimant dated 14 June 2000 in support of the application for the non-molestation order, a further statement by her dated January 2001, a report by Ms Patel of the Southall Black Sisters, a letter dated 8 June 2000 from a Mr Popham about Mr B’s behaviour, and DNA evidence concerning the Claimant’s son.

9. On 26 July the Home Office wrote to the Claimant’s representatives stating that the Secretary of State had considered the additional material and giving detailed reasons for his decision not to reverse the decision of 1 November 2000 that the Claimant cannot benefit from the domestic violence concession, and belief that the removal of her and her son from the U.K. would not breach Articles 8 or 3 of the European Convention on Human Rights. The Secretary of State did not accept the contention that the Claimant’s statement clearly established that she had been the subject of domestic violence during her marriage to Mr B, and, even if she had suffered domestic violence while the marriage subsisted, did not consider that she qualified under the terms of the concession. This was because he considered that it was clear that any violence by Mr B to the Claimant was not the reason for the breakdown of the marriage.

10. With regard to the Claimant’s statement, the Secretary of State accepted that this established that the Court accepted that Mr B was molesting or harassing the Claimant at that time and that there was a risk that he would continue to do so. But he did not accept that the non-molestation order amounted to proof that Mr B had been violent to the Claimant before the breakdown of the marriage. The order had been sought due to harassment of the Claimant after the marriage had broken down and, notwithstanding the reference to violence before the breakdown, the Secretary of State did not consider that it should be inferred by the non-molestation order that the Court had taken into account the violence she had suffered during the marriage. On the assumption that there had been any violence by Mr B to the Claimant it was, in his view, nevertheless clear that the concession did not apply. This was because it was clear that any violence by Mr B was not the reason for the breakdown of the marriage because it was not the Claimant’s choice to leave her husband; she was forced to do so by her husband who had her arrested for assaulting him.

11. On 1 August 2001 Burton J refused the renewed application for permission. The Claimant renewed her application to the Court of Appeal and, following a hearing, Potter L.J. granted permission to move for judicial review. At that hearing Mr Juss, on behalf of the Claimant, made an application that there be a woman judge involved in the hearing of the substantive application. At the outset of the hearing before me he renewed the application and indicated that Potter L.J. had considered that this might be appropriate in this case. After considering Potter L.J.’s judgment, I rejected this application. His Lordship stated that, in his view, there was:-

“ … no reason to doubt the ability or willingness of a male judge to accept submissions concerning the likeliness or willingness of a woman who may be suffering domestic violence to seek a remedy or make a complaint in the face of violence from her husband and/or threats from him as to what would happen if she left home, in a situation where she might thereby become vulnerable to deportation. Those do not seem to me matters which are peculiarly able to be understood by a woman judge. In those circumstances, I make no direction in the matter so far as the constitution of the court is concerned, even if I were able, or it would be proper for me to do so.”

12. Turning to the substance of the challenge, Mr Juss’s skeleton argument contained three submissions. First, that the Secretary of State misdirected himself in law or took into account an irrelevant consideration in concluding that the domestic violence concession did not apply to the Claimant even though she had obtained a domestic violence injunction supported by a statement which expressly referred to the existence of violence during the marriage. Secondly, that the Secretary of State’s approach was disproportionate in view of the fact that the domestic violence concession was promulgated in order to combat the abuse of wives in a situation where they were vulnerable and susceptible to abuse, breakdown of marriage and consequent deportation. The strict criteria required for relief in effect virtually precluded it operating. Thirdly, the domestic violence concession as applied is said to be incompatible with the Human Rights Act as currently constituted and applied. This last argument was not pursued at the hearing.

13. Mr Juss’s primary submission was that the Secretary of State had erred or taken into account an irrelevant consideration in concluding that the domestic violence concession did not apply to the Claimant. He put this in two ways. First, paragraph 10 of the Claimant’s statement (see paragraph 6 above) had stated that Mr B had been violent before the breakdown of the marriage. This was uncontradicted before the County Court. Ms Patel’s report stated that the Claimant’s statement clearly established that she had been the subject of domestic violence during her marriage to Mr B. There was further evidence of such violence in Mike Hancock’s letter of 7 January 2000. Moreover, the fact that the County Court made a non-molestation order was in itself sufficient to bring the Claimant within the domestic violence concession. He submitted that on this evidence it was not open to the Secretary of State to conclude, as he did in the letter of 26 July 2001, that the Claimant’s statement did not clearly establish that she had been the subject of domestic violence during her marriage.

14. With regard to the Secretary of State’s conclusion that any violence by Mr B to the Claimant was not the reason for the breakdown of the marriage because the Claimant was forced to leave by her husband who had her arrested for assaulting him, Mr Juss submitted that it was artificial to ask this question of a woman who had, as the Claimant had, been raped and subjected to indignities which led to the breakdown of the marriage. To require such person in addition to proving the violence and indignities to prove that they were was the reason for the breakdown and her leaving was to impose too high and disproportionate a burden.

15. If on any reasonable view, the facts considered by the Secretary of State fell within the policy Mr Juss submitted on the basis of the “legitimate expectation” cases of R v Home Secretary, ex p. Khan [1985] 1 All ER 40; R v Ministry of Agriculture, Fisheries and Food, ex p. Hamble (Offshore) Fisheries Ltd. [1995] 2 All ER 714 and R v North & East Devon Health Authority, ex p. Coughlan [2000] 3 WLR 622 that it was not open to the Secretary of State to say that he would not apply it.

16. On behalf of the Secretary of State, Miss Giovannetti submitted that, in the present case, where the facts were fiercely contested with allegations and counter allegations of violence between Mr B and the Claimant, and conflicting accounts to the police, the Secretary of State was entitled to conclude as he did that the policy did not apply. The only order made against Mr B related to conduct after the marriage had ended and the Claimant stated that the reason that she applied for the order was such conduct. In these circumstances, Miss Giovannetti argued that, notwithstanding paragraph 10 of the Claimant’s statement, the Secretary of State was entitled to conclude that this was not a case where he could be satisfied that there was the requisite proof that the Claimant was a victim of domestic violence from Mr B while the marriage was subsisting. It was not irrational, she submitted, for the Secretary of State to conclude in these circumstances that the existence of the non-molestation order did not prove the violence during the relevant period. Moreover, on the evidence before him, it was open to the Secretary of State to conclude that any violence by Mr B to the Claimant was not the reason for the breakdown of the marriage. This evidence included Mr B’s account of the relationship’s deterioration, the agreed evidence that, some three months after the marriage, the Claimant had told Mr B that she did not want to be married to him any more or to sleep with him, and her statement that she only left the matrimonial home when forced to after her arrest for assault.

17. I have to consider whether the Secretary of State was entitled to find:- (a) that it had not been established by the Claimant that she had been the subject of domestic violence during her marriage to Mr B, and, (b) that even if she had suffered such violence while the marriage subsisted, it was not the reason for the breakdown of the marriage.

18. With regard to domestic violence during the marriage, paragraph 4.2 of the concession, which deals with the “standard of proof”, is of assistance on the question of “domestic violence”. It states that “in order to establish a claim of domestic violence there must be one of the following pieces of evidence available: (i) an injunction, non-molestation order or other protection order made against the sponsor (other than an ex-parte or interim order) …”. It is not expressly stated whether the existence of an order is sufficient to establish a claim of domestic violence or whether this is only a necessary requirement, but I have concluded that on the proper construction of the concession it is sufficient.

19. Paragraph 4.2 is not, however, of assistance on the question whether the violence took place “during the probationary period while the marriage or relationship was subsisting”. On this issue guidance as to the scope of the concession is obtained from sub-paragraph 2 of paragraph 4.3. This states that “the fact that the relationship was subsisting when domestic violence occurred would normally be evidenced by the fact that the couple were living at the same address when the incident took place”.

20. In the present case the statement supporting the application for the order dealt with both pre and post-breakdown matters, as is common in such applications. At the time of the incidents dealt with in paragraph 10 of the Claimant’s statement the Claimant and Mr B were living at the same address when the incidents took place. In the terms of the concession, if accepted, “normally” this would evidence the fact that the relationship was subsisting when domestic violence occurred. Since the County Court in deciding whether to make an order does not have to decide whether violence took place before the breakdown, it may well be unnecessary for it to make precise findings as to the timing of the conduct which justifies the making of an order and there is unlikely to be guidance from either the Court’s order or its judgment. In this case there was uncontradicted evidence before the county court which, albeit together with other evidence, has led to an order. In such circumstances to say, as the Secretary of State has in this case, that he is not satisfied that violence took place at a time when the evidence states it has, appears to go behind the order of the Court. In the present case the Secretary of State said that he did not know what the Court had in mind when it granted the non-molestation order. The letter of 26 July does not refer to the terms of sub-paragraph 2 of paragraph 4.3 of the concession. In view of the fact that there was uncontradicted evidence before the county court of incidents at a time the couple were living at the same address the “normal” evidential conclusion under paragraph 4.3 of the concession was that the relationship was subsisting when domestic violence occurred. I have concluded that the Secretary of State should have considered why this was not so in this case and that he fell into error in concluding that he was not satisfied that violence had occurred before the breakdown of the marriage on 16 December 1999 without doing so.

21. The Claimant, however, must also show that it was not open to the Secretary of State to conclude that such violence as took place was not the reason for the breakdown of the marriage. On this issue, I have some sympathy with the position in which the Claimant finds herself. But I have concluded that in view of the material before the Secretary of State (see paragraph 16 above) and considered by him, he was entitled to conclude that the violence was not the reason for the breakdown of the marriage.

22. With regard to Mr Juss’s submission that the Secretary of State’s approach to the domestic violence concession is disproportionate, this amounts to an argument that the policy contained in the concession is unlawful because of the strictness of the criteria for qualifying for the concession. Notwithstanding my sympathy with the Claimant’s position, Miss Giovannetti’s submission that the Secretary of State was under no obligation to grant any concession whatsoever to those who do not have a right to remain in the UK under either the Immigration Acts or the Immigration Rules is correct. This point was considered by Lightman J in the context of the domestic violence concession in R( McKenzie) v Secretary of State for the Home Department 9 August 2001. His Lordship stated “In framing the concession the Secretary of State has had to balance the need for an effective immigration policy and the desirability in proper cases of providing protection for those who are victims of domestic violence. The compromise is reflected in the particular temrs of the concession itself” and “I do not think that a policy which merely protects some can be open to challenge because it does not protect everybody who might have a meritorious claim to protection. That would mean that no limited concession could ever be granted. It seems to me, therefore, that the challenge to the validity of the concession and its application must fail as it appears to me what was intended here was a limited concession and that limited concession is a perfectly valid concession granted by the Secretary of State.”

23. I have concluded that the Secretary of State erred in concluding that he was not satisfied that violence had occurred before the breakdown of the marriage on 16 December 1999 without considering paragraph 4.3 of the concession. It is, however, clear from the letter of 26 July that, even if he had been satisfied that there had been violence before the breakdown he would have concluded that the concession did not apply. This was because of his conclusion, which I have stated he was entitled to make, that such violence as took place was not the reason for the breakdown of the marriage. Accordingly, the error was not material to the decision and did not affect it in any way. It is well established that for judicial review to issue it is necessary for an error of law or a misdirection to be material. In R v. Hull University Visitor, ex p Page [1993] AC 682, Lord Browne-Wilkinson stated at 702:

“The mere existence of a mistake of law made at some earlier stage does not vitiate the actual decision made: what must be shown is a relevant error of law, i.e. an error in the actual making of the decision which affected the decision itself”.

See also the authorities collected in Fordham, Judicial Review Handbook 3rd. ed. p. 722. The error or misdirection in the present case did not affect the outcome in any way and it is therefore not appropriate for the court to interfere in judicial review proceedings. This application is accordingly dismissed.