England and Wales High Court (Administrative Court) Decisions

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

		Manchester Civil Justice Centre 1 Bridge Street West, Manchester, M3 3FX
		3rd July 2013

HIS HONOUR JUDGE PELLING:

Introduction

1. This is the substantive hearing of a claim for judicial review by the claimant, by which he seeks to challenge a decision taken on 14th October 2012, to refuse to treat the claimant's application for indefinite leave to remain under rule 289 of the Immigration Rules as valid.

Factual Background

2. The claimant married a British citizen, Mr Zahir Amin, on 19th February 2011. On 23rd August 2011 the claimant was issued with an entry clearance as the wife of Mr Amin, which was valid until 23rd November 2013. On 11th September 2011 the claimant arrived in the UK and was granted leave to enter as the spouse of Mr Amin. On 29th April 2012 the claimant returned to Pakistan in circumstances to which I refer in more detail hereafter.
3. On the 6th June 2012 the claimant arrived in the UK and sought leave to enter using her spousal visa at Manchester airport. The claimant was questioned by an immigration officer and in the result the claimant was served with a notice which purported to suspend her leave to enter or remain in the United Kingdom on the basis that there were further enquires or questions that the immigration officer wished to ask of her. At the same time she was issued with a notification of temporary admission as a person liable to be detained. The notice provided that, that the claimant was authorised to be temporarily admitted into the United Kingdom, subject to a number of restrictions, including a requirement to report to an immigration officer at Manchester airport on 15th June for the purpose of undergoing the further interview to which I have referred. The notice expressly stated that the claimant had not been given leave to enter the United Kingdom within the meaning of the Immigration Act. On 18th June 2012 the claimant made an application for indefinite leave to remain in the United Kingdom, under rule 289, as a victim of domestic violence.
4. The interview of the claimant by the immigration officers took place at Manchester airport on 19th June 2012. Following various intermediary steps that it is not necessary to take up time describing, by 14th October the position was that the claimant had been issued with a notice of refusal of leave to enter, the claimant's preceding continuing leave and entry clearance had been cancelled and a letter had been issued to her refusing her discretionary leave to remain outside the Immigration Acts, on the basis that she had previously returned to her home country. Removal directions were set, which were ultimately first suspended and then cancelled.
5. The circumstances that led the claimant to apply for indefinite leave to remain under rule 289 are set out in her witness statement in support of the application. The statement refers to serious physical domestic violence, including assaults and rape by her husband and to him having deprived her of medical assistance when such was required. It also refers to assaults by her mother-in-law. The statement that is filed in support of the present application then described what happened on 29^th April 2012 in these terms:

"On 29th April 2012 my mother-in-law arranged for me to go to Pakistan without my knowledge. She had asked her sister-in-law, Tahira Hussain, to take me out on the pretext of shopping so that she could arrange for the trip whilst I was out. When I returned home I was told to wash and get changed as we were going to Pakistan. When I asked my mother-in-law to let me call Pakistan and inform my parents of my return to Pakistan, she would not let me, saying that we did not have time for that as we needed to get to the airport. After my father-in-law had dropped us off at the airport he returned home and called my parents and advised them they should go to Islamabad airport if they wanted to see me alive and well as he did not know what his wife was going to do. My parents then reached the airport as soon as possible and informed the police there of the situation and that my mother in law might have taken my passport from me. The police then intervened at Islamabad airport and retrieved my passport from my mother-in-law and took me to my parents. Once I had reached my parents home I started to receive death threats from my husband and mother in law. At one point my husband was in Pakistan and came to my parents' house with several men while I was on my own in my house and started banging on the front door to let them in. I managed to see the people and then started screaming and making a noise to attract attention and they fled as they did not want to be seen. I received death threats via phone and text. I then returned to the UK on 6th June 2012 as I had no security in Pakistan and my life was in imminent danger. My husband and my mother-in-law have continuously been calling my family in Pakistan and threatening that they will find me and kill me and threatened to kill my family as well ... I am scared and fear that if I return to Pakistan I will not be able to adequately protect myself as I am from a poor family and do not have the funds to be able to receive the same level of security that I currently have in the UK ..."

6. The Decision Letter to which I have referred was in the following terms:

"Your in-country application for indefinite leave to remain on grounds of domestic violence is not acceptable because the requirement of paragraphs 289A(i) to (iv)-289B of the rules are not met as detailed below ... The requirement of the above sub paragraph are not met because on last arrival in the United Kingdom your leave was suspended upon issue of form IS81 and you were not admitted to the United Kingdom with any form of leave. Therefore upon submitting your application on 15th June 2012 you had no qualifying leave to enter or remain. Your application is therefore invalid.

With regard to the port granting an issue of discretionary leave outside the rules on compassionate or exceptional grounds, I can see no merit in the case put forward that you should be granted leave as a victim of domestic violence when you are effectively extracting yourself from the safety of your family and home in Pakistan and inexplicably placing yourself in seemingly more precarious position. I consider there to be little credibility surrounding the whole issue and cannot be satisfied that you are not an economic migrant.

Your case has now concluded and I enclose Form IS82A Notice of Refusal of Leave to Enter that outlines the reasons for the cancellation of your entry clearance and refusal of leave to enter under the provisions of the Immigration Rules ..."

The Statutory Framework

7. The relevant parts of the Immigration Rules for present purposes are paragraphs 289A - 289D. In so far as is material, they provide as follows:

"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 for a period not exceeding 27 months 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 ...

Indefinite leave to remain as the victim of domestic violence...

289B. Indefinite leave to remain as the victim of domestic violence may be granted provided the Secretary of State is satisfied that each of the requirements of paragraph 289A is met.

Refusal of indefinite leave to remain as the victim of domestic violence

289C. Indefinite leave to remain as the victim of domestic violence is to be refused if the Secretary of State is not satisfied that each of the requirements of paragraph 289A is met..."

8. Section 11 of the Immigration Act 1971 on which the defendant places some reliance provides as follows:

"(1)A person arriving in the United Kingdom by ship or aircraft shall for purposes of this Act be deemed not to enter the United Kingdom unless and until he disembarks, and on disembarkation at a port shall further be deemed not to enter the United Kingdom so long as he remains in such area (if any) at the port as may be approved for this purpose by an immigration officer; and a person who has not otherwise entered the United Kingdom shall be deemed not to do so as long as he is detained, or temporarily admitted or released while liable to detention..."

The Issues

9. The claimant maintains that the defendant's decision was wrong in law because (a) the claimant satisfied requirements of paragraph 289A(i) because she was admitted to the UK prior to the application being made for a period not exceeding 27 months, and (b) there is no requirement for her to have extant leave at the date when the application under paragraph 289A is made, but (c), in any event on her last admission to the UK she had the benefit of extant leave. Thus, she submits that having satisfied the requirements of paragraph 289A she was entitled to be considered for indefinite leave to remain by operation of paragraph 289B.
10. The defendant's case is that the phrase "was admitted" in paragraph 289A(1) means and can only mean "last admitted". Here the claimant left the United Kingdom after the break up of her marriage, as a result of domestic violence, but returned so the applicability of the paragraph was to be tested by reference to the purpose or basis of her most recent admission. Thus tested the claimant did not satisfy the requirements of paragraph 289A(1). In any event, in view of the fact that the claimant's leave was suspended on her last arrival in the United Kingdom and she was given temporary admission to enter outside the Immigration Act, it followed that she had not been admitted to the UK on the basis identified in paragraph 289A(1) in any event.

The Meaning of Paragraph 289A(1)

11. In construing the paragraph it is necessary to have regard to its purpose - see Odelola v SSHD [2009] 1 WLR 1230, per Lord Hoffmann at paragraph 4 where he described the construction process in these terms:

"Like any other question of construction, this depends upon the language of the rule, construed against the relevant background. That involves a consideration of the immigration rules as a whole and the function which they serve in the administration of immigration policy. The language of the rule is not in itself much help. It states the new rule but does not say anything expressly one way or the other about whether it is to apply to existing applications or not."

I adopt the general approach identified by Lord Hoffmann in the quotation set out above when resolving this case.

12. The purpose or function of rule 289 was not seriously in dispute between the parties. It is that set out in the defendant's guidance entitled "Victims of Domestic Violence", in these terms:

"This category is for people who have or have had limited leave to enter or remain in the UK as a spouse or married partner, registered civil partner or same sex partner of a British citizen or a person present and settled in the UK issued under Part 8 or appendix FM of the Immigration Rules. It allows those whose relationship has genuinely broken down because of domestic violence during their probationary period of leave to be granted indefinite leave to remain. There are no provisions in the Immigration Rules to grant someone entry to the UK as a victim of domestic violence. The rules on allow for someone who is already in the UK to be granted IRL..."

13. Further light is shed on the purpose of the provision by the Circular published by the defendant entitled "Victims of Domestic Violence: requirement for settlement applications". which under the heading "questions and answers" says this:

"2. Why is it only open to those here as the spouse, civil partner, unmarried or same sex partner?

The 'domestic violence rule' was introduced with the intention of ensuring that someone with a direct route to settlement in the UK as the spouse or partner of a British Citizen or settled person, would not have to remain in an abusive relationship to secure it.

The rule was not introduced as a means to grant settlement to all foreign nationals who have suffered domestic violence whilst in the UK, nor should it be seen as a measure to compensate those foreign nationals affected by domestic violence."

As Dyson LJ (as he then was) put it in AL [2007] EWCA Civ 386 at paragraph 30:

"...The policy which underlies para 289A(iv) is clear enough. Spouses and partners who are the victims of domestic violence should not feel constrained to remain in an abusive relationship for two years solely in order to qualify for indefinite leave to remain..."

I would add that, in my judgment, it follows that the rights conferred by rule 289 ought not in consequence to be lost as a result of withdrawing from an abusive relationship. It is common ground that the claimant was initially admitted to the United Kingdom on terms that satisfied the requirements of paragraph 289A(1). It is not disputed that had she remained here, the claimant would have been entitled to apply for indefinite leave to remain under paragraph 289 and could have done so even if hypothetically leave to remain by which she had initially been admitted to the UK had expired - see JL (Domestic Violence: Evidence and Procedure) India [2006] UKIT 00058.

14. The defendant's case is however, that this ceased to be the position when the claimant left the United Kingdom. It is submitted that it makes no difference that she did so involuntarily.
15. The issue of construction between the parties is as to the effect of the words "was admitted" in rule 289A(1). The claimant maintains that the effect of these words in context can only mean "was originally admitted" since any other construction would defeat the purpose of the rule. The defendant maintains that the words referred to the terms of the last admission to the United Kingdom with the result that if a person who is the victim of domestic violence leaves the country, or is involuntarily removed but then is able to make his or her way back, and gain admission to the UK, that will dis-entitle the person to claim the benefit of the rule or will do so, if the person is not readmitted under the leave originally granted to enter as a spouse.
16. Each party seeks to rely upon theoretical absurdities for the purpose of demonstrating the sense of their respective positions. Thus, the defendant relies on the fact that hypothetically a person could obtain leave to enter as a spouse, be admitted and then suffer a breakdown of the relationship as a result of domestic violence, following which the person returns to their home country and thereafter, perhaps years thereafter, obtains leave to enter on some other basis, perhaps as a student or possibly as a visitor. After re-entry would then be entitled to apply for indefinite leave to remain under paragraph 289.
17. The claimant was disposed to rely on the manifest unfairness illustrated by the hypothesis that if the defendant is correct, then the victim of domestic violence who leaves his or her spouse but not the United Kingdom is entitled to apply but someone who is the victim of domestic violence leaves the United Kingdom and a fortiori leaves involuntarily would not be, even though each would appear equally entitled to the protection of the policy as I have outlined it.
18. I am persuaded that on this issue the claimant's case is to be referred. In my judgment, the weakness of the defendant's arguments stems from attempting to consider the effect of rule 289A independently of the other parts of rule 289, contrary to the approach identified by the Lord Hoffmann referred to earlier in this judgment. Rule 289 is to be considered as a whole and if it is then, in my judgment, the proper approach becomes clear.
19. As the examples I have mentioned show, each of the constructions contended for by the parties before me open up the possibility of manifestly unfair or unsatisfactory outcomes. The remedy for this lies in paragraphs 289B and 289C of the rule. Paragraph 289B creates a discretion providing the requirements of paragraph 289A are satisfied. It follows that even if all the conditions identified in paragraph 289A are satisfied, there is no obligation to grant indefinite leave to remain. The Secretary of State at that stage has a discretion. In an absurd case such as that postulated by the defendant, she would no doubt exercise that discretion by refusing to grant indefinite leave to remain and, subject to a challenge, on Wednesbury grounds that will be the end of the application.
20. By the same token, if the construction contended for by the claimant is correct, then the absurdity identified by her counsel in the course of her submissions would be avoided. It is only not avoided if the construction for which the defendant contends applies for in that event paragraph 289C applies and the defendant would have no discretion.
21. My view that this is the correct approach is supported by the policy that underpins the rule, which as I have said is to eliminate the outcome that a person on a direct route to settlement ought not to have to remain in an abusive relationship in order to secure it. If that is the policy I do not see why rationally that policy ceases to apply, if such a person is involuntarily removed or, for that matter, voluntarily departs from the UK either as a consequence of such a relationship or to avoid it. If the relationship was a sham, or if the removal was not a consequence of or an attempt to avoid an abusive relationship, or if the person concerned has resettled in his or her country following such a removal and made a new life there, those are all factors material to the exercise of discretion. It does not justify an arbitrarily or artificially narrow construction of one particular subparagraph of one part of the rule which would have the effect of creating absurd or harsh outcomes, or outcomes which on the particular facts defeat rather than deliver the policy objective.
22. For those short reasons, I am satisfied that the claimant's case on the first issue is to be preferred.

The effect of the suspension of the claimant's existing leave.

23. The defendant maintains that even if this analysis is correct, it is of no assistance to the claimant because the immigration officer had suspended her leave to enter as a spouse on her return to the UK and her admission to the UK was outside the Immigration Act on a temporary basis for the purpose of facilitating a further interview, as I have described.
24. In my judgment, this point does not assist the defendant. As I have explained, the only relevant question for the purpose of paragraph 289A is whether the claimant had been admitted on the relevant basis originally. Thus, the fact that leave to enter as a spouse was subsequently suspended is no more relevant than the fact that the leave to enter on that basis had expired in JL.
25. Whilst I accept that the effect of section 11 of the Immigration Act 1971 is as the defendant maintains, that is that temporary admission does not amount to leave to enter, that is immaterial. The application under paragraph 289 depends upon the claimant establishing the factual requirements of paragraph 289A. If she does, then the question whether she should be granted indefinite leave to remain involves an exercise of discretion applying paragraph 289B. If she does not satisfy the requirements of paragraph 289A, then the application must be refused - see paragraph 289C. Her status at the time the application is made is immaterial.
26. The remaining issue is whether I should quash the decision given that consideration has been given by the defendant as to whether discretionary leave to remain outside the Immigration Rules should be granted. In my judgment, I should quash the decision notwithstanding that consideration has been given as to whether discretionary leave outside the rules should be granted. I reach that conclusion for the following reasons.
27. While consideration has been given as to whether discretionary leave outside the rules should be granted, that is not the same discretion that arises under rule 289B. While some of the matters that have been considered will no doubt be relevant to the exercise of discretion under rule 289B, in my judgment the weight to be given to those will have to be balanced by, first, the policy that underpins rule 289, that is that parties otherwise on a direct route to settlement in the United Kingdom should not have to remain in an abusive relationship or return to it in order to obtain that objective, nor be deprived of it by being driven to withdraw from such a relationship by domestic violence. It may be that voluntary departure will lead to one conclusion (particularly where a significant length of time has elapsed before the person concerned has returned) and involuntary removal or departure another. There will no doubt be questions of fact and degree in between those two extremes which will have to be assessed when exercising discretion. It would be wrong of me to comment on the likely outcome in the particular circumstances of this case, because ultimately the question whether or not the discretion is to be exercised is one for the Secretary of State not me. What is clear is that there is a realistic prospect of the outcome being different if the exercise of discretion is one considered under rule 289, as opposed to one concerning discretionary leave to remain outside the rules.
28. In the result therefore the decision will be quashed.
29. HIS HONOUR JUDGE PELLING: Yes?
30. MR BRIEDEN: Thank you my Lord. Apologies for the noise that my iPad made in the middle of the judgment. I would ask for the usual costs order in this case. The claimant is legally aided and will seek costs from other side, so a detailed assessment of costs.
31. HIS HONOUR JUDGE PELLING: Agreed?
32. MR FULLWOOD: Yes, we have not seen a copy of the certificate but it upon production of that we see no reason why not.
33. HIS HONOUR JUDGE PELLING: Very good, subject to production of a certificate an order in those terms.
34. Could you draw up the order and let me have it through the usual challenges?
35. MR FULLWOOD: My Lord, I am asked to seek leave for an appeal. I am not counsel obviously who was involved in this case. It involves it appears a relatively tight interpretation of a particularly statutory provision. I have been instructed to ask for a period of time in which to lodge such an appeal which is 14 days after receipt of a transcript. I cannot really advance the grounds before you because I was not the counsel dealing with the --
36. HIS HONOUR JUDGE PELLING: I am assuming it will be the same grounds that were argued before me?
37. MR FULLWOOD: Yes.
38. HIS HONOUR JUDGE PELLING: Give me a moment (Pause).
39. This is an application for permission to appeal. I refuse that application. No grounds for the appeal were identified other than a desire to re-argue the case before the Court of Appeal on the basis it was argued before me. Those grounds are not arguable for the reasons set out in the judgment. There you go. There is the form.
40. You want an extension until 14 days after receiving the transcript; is that right?
41. MR FULLWOOD: I do.
42. HIS HONOUR JUDGE PELLING: Is that opposed?
43. MR BRIEDEN: No.
44. HIS HONOUR JUDGE PELLING: Very good, an order in those terms.