Tribunal decisions

The decision

Asylum and Immigration Tribunal

RH (Para 289A/HC395 - no discretion) Bangladesh [2006] UKAIT 00043

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 14 March 2006
On 18 April 2006
Prepared
…………………………………

Before

Miss K E Eshun, Senior Immigration Judge
Mr C P Mather, Senior Immigration Judge

Between

Appellant

and

Secretary of State for the Home Department

Respondent

The documents specified under para 289A(iv) of HC395 (and to be found in section 5 of chapter 8 of the IDIs) are not subject to interpretation and the requirements do not allow for the use of discretion as to the acceptance of other documents by an Immigration Judge.

Representation:

For the Appellant: Mr A Pipe, Counsel instructed by Heer Malek, Solicitors
For the Respondent: Mr J Jones, Presenting Officer

DETERMINATION AND REASONS

1. The appellant is a citizen of Bangladesh and was born on 16 August 1982. She married in Bangladesh in about 1999 and initially lived there with her husband for about six months. Thereafter her husband returned to the United Kingdom for a short period of time and in due course the appellant applied for entry clearance to join him in the United Kingdom as his spouse. She came to the United Kingdom in November 2003 and was granted leave to enter on that basis until September 2005. They lived together in Croydon. The marriage deteriorated and in October 2004 the appellant says that her husband severely assaulted her. With the help of a female friend from Birmingham she moved to that area. Despite attempts by her friend, and encouragement from her mother, she was unable to come to any arrangement with her husband. Following threats by her husband to kill her if she returned to the matrimonial home she made a complaint to the police in the West Midlands about the treatment she had received. On 2 November 2004 she went to a police station where she made a formal complaint. She was assisted by a PC Ali, a Bengali-speaking police officer, who arranged for an interpreter to attend so that she could make a statement. This was then forwarded to the police in Croydon. PC Ali then assisted the appellant by taking her to a women's refugee run by a Mrs Butt in Coventry. She has remained there since. Since arriving in Coventry she has registered with a General Practitioner.

2. On 25 January 2005 the appellant applied for indefinite leave to remain on the basis that she was the victim of domestic violence. She relied upon the provisions of paragraph 289A of the Immigration Rules. Paragraph 289A then read as follows:-

"The requirements to be met by a person who is a 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 two years as the spouse 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 two years as the unmarried partner of a person present and settled here; and

(iii) the relationship with their spouse or unmarried 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.

That paragraph was inserted into the immigration rules as from 18 December 2002. It has since been amended by HC582 with effect from 24 October 2005. The amendments do not have any relevance to this appeal. It should be noted that the rule as printed in Phelan 4th Ed contains errors. It refers to 12 months in sub-paragraph (i) not 2 years; and puts the word ‘or’ at the end of sub-paragraph (ii) when it should be ‘and’.

3. There is a reference in paragraph 289A(iv) to "such evidence as may be required". In this case the appellant received a letter, dated 16 February 2005, setting out the respondent's requirements. That letter reflects the terms of the respondent's Immigration Directorate's Instructions of 2004 (IDI). Section 5 of Chapter 8 of the IDI deals with domestic violence applications and the relevant parts say this:-

"5.2 Standard of Proof

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 (other than an ex parte or interim order); or

ii. a relevant court conviction against the sponsor; or

iii. full details of a relevant police caution issued against the sponsor."

4. At 5.7 under the heading "Other acceptable proof of domestic violence" the IDI goes on to say this:-

"It is often difficult for victims of domestic violence to produce documentary evidence of violence as set out at 1.2 (sic) above, and there is often 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 [emphasis in the original]:

A medical report from a hospital doctor confirming that the applicant has injuries consistent with being a victim of domestic violence;

a letter from a family practitioner who has examined the applicant and is satisfied that the applicant has injuries consistent with being a victim of domestic violence;

an undertaking given to a court that the perpetrator of the violence will not approach the applicant who is the victim of the violence;

a police report confirming attendance at the home of the applicant as a result of a domestic violence incident;

a letter from a Social Services Department confirming its involvement in connection with domestic violence;

a letter of support or report from a women's refuge.

For the avoidance of doubt, the Immigration Judge quotes from the respondent's letter in the determination. There, the requirements are referred to not as bullet points but paragraphs (a) to (e). The provisions are otherwise identical.

5. The appellant's application was refused and there is a detailed explanatory statement dated 25 July 2005 setting out why. The statement says (inter alia) this:-

"3.2…..The only documentary evidence the appellant had submitted was a letter dated 3/05/2005 from her GP, Dr Kakad (J2), which stated that she had first gone to her doctor's on 29/03/2005 where she mentioned an assault that took place in October 2004. However, the report did not confirm that the appellant was examined and found to have injuries consistent with being a victim of domestic violence. An extract from a police officer's notebook (B3-B4) which had not been substantiated with a crime reference or a crime report (sic). Furthermore, Home Office enquiries with the police showed no trace of an incident involving the appellant. Also submitted was a letter dated 08/04/2005 from The Sisters Haven (G2) which confirmed that the appellant was residence (sic) with them and that they were supporting her, however, this alone was insufficient evidence to prove the appellant was a victim of domestic violence. The Secretary of State was therefore not satisfied the appellant had produced sufficient documentary evidence to meet the requirements of paragraph 289A(iv) of the Immigration Rules.

3.3 Furthermore, in light of the above the Secretary of State was not satisfied the appellant had within a reasonable time produced the evidence requested, to establish her claim under the immigration rules and accordingly, he was not prepared to exercise discretion in her favour."

6. At paragraph 3.4 the respondent went on to say that it was clear that the appellant's marriage had broken down and that the appellant no longer met the conditions of her stay in the UK under her original leave to enter. He curtailed her leave. The appellant appealed the decision to refuse the application but not the decision to curtail the extant leave. The respondent made some initial observations concerning the notice of appeal at the end of the explanatory statement. He concluded there was no reason established in the grounds of appeal to make it appropriate for him to alter his decision. Part of the grounds of appeal, and an accompanying letter in support, suggested that the law discriminated against immigrant women who were subjected to violence. The respondent noted that no evidence had been submitted in support of that assertion and said he was satisfied that Article 14 of the European Convention on Human Rights had not been engaged. That issue was not argued before the Immigration Judge.

7. In coming to her conclusions the Immigration Judge said at paragraph 27:

"The appellant's representative asked me to interpret the requirements of paragraph 289A generously."

There was no disagreement between the parties that the appellant satisfied the requirements of paragraph 289A(i) and (iii). The judge said the difficulties that have arisen are in connection with the interpretation of paragraph 289A(iv). She then went on to consider the evidence which had been adduced before her. She observed that the appellant had made her original complaint to Pc Ali and that she been given a copy of the entries in his notebook. She said they were contemporaneous notes from which it was clear that the appellant complained on 2 November 2004 she had been physically assaulted by her husband and that she had lived with him at 34 Priory Road, Croydon. It was also clear that PC Ali then arranged for a statement to be taken through a police interpreter and took the appellant to The Sisters Haven Refuge in Coventry. The notes also confirm that paperwork was sent to Croydon Police Station.

8. The Immigration Judge also had a copy of a police log which confirmed the date of the complaint, namely 2 November 2004 and the fact that information was passed from Coventry to Croydon. That, she said, confirmed complaints by the appellant of physical and verbal abuse over the previous year and that all her documents had been taken by her brother-in-law. The Immigration Judge said that she was satisfied that this evidence had been given to the police and that it was the appellant's intention that the complaint would be actioned. She was satisfied that the appellant made a formal complaint of domestic violence by her husband. She then compared that with the requirements for documentary evidence in 5.7 of the IDI. She said that the nearest equivalent item in that list, to the evidence she had seen, was the requirement for a police report confirming attendance at the home of the applicant. She acknowledged the police did not attend the appellant's address in Croydon and said that the complaint "therefore does not technically satisfy those requirements but nevertheless I am satisfied that the police report was made".

9. At paragraph 35 of her determination, the Immigration Judge observed that the appellant had not reported her concerns to a General Practitioner until she registered with a doctor in Coventry. She said, by then, the physical effects of the domestic violence had disappeared. She acknowledged that the doctor stated the appellant appeared low in mood and attributed this to the possible effects of domestic violence but the Immigration Judge went on to say that this

"is not sufficient to satisfy the requirements of paragraph (a) – a medical report from a hospital, doctor or letter from a family practitioner confirming that your injuries are consistent with being a victim of domestic violence".

We should emphasise, that the requirement she refers to is not a report from a hospital or doctor (as implied by the comma in the Immigration Judge's paragraph 35) but from a hospital doctor.

10. The Immigration Judge went on at paragraph 36 to say this:-

"I was significantly influenced by the evidence given by Zakia Butt particularly with regard to the manner in which she described how in her experience the general demeanour of the appellant satisfied her that she had been a victim of domestic violence. She referred to the appellant's tearfulness, general distress, feeling of lack of worth and I am satisfied to the necessary standard that she was genuinely satisfied the appellant had been the victim of domestic violence.

37. I have taken into account the Home Office Presenting Officer's view that Mrs Butt was only able to repeat the information provided by the appellant but I also take into account that Mrs Butt is an experienced hostel worker (she told me that she had had more than fifteen years experience of working with abused women) – she is a Muslim woman herself and I am satisfied that she is highly experienced in this field. I am therefore satisfied that the letter which Mrs Butt had provided and the oral evidence which she gave before me more than satisfies the requirement at (e) of "a letter of support or report from a women's refuge".

11. At paragraph 38 the Immigration Judge said,

"I find that it would be impossible for the appellant to produce evidence which would satisfy paragraph (b) – an undertaking given to a court that your partner will not approach you – that would have required the appellant to have instituted civil proceedings against her husband for an injunction or a non-molestation order – as she was no longer living in Croydon at the relevant time and felt unable to report her concerns I discount that as being a possibility."

She went on to say

"Similarly, insofar as (d) is concerned – a letter from a Social Services department confirming its involvement in connection with domestic violence towards you I find that such involvement would only have been raised if the couple's children were involved – the couple have no children thereby this requirement is irrelevant".

12. The Immigration Judge then concluded at paragraph 39:-

"As indicated above I am satisfied that part of paragraphs (a) and (c) have been satisfied and that together with the evidence of Mrs Butt satisfies me to the necessary standard that the appellant has been the subject of domestic violence.

Accordingly, I am satisfied the requirements of paragraph 289A of the immigration rules have been satisfied and on that basis I allow the appellant's appeal".

13. The respondent applied for a review of that decision and an order for reconsideration was made on 1 September 2005. The grounds in support of the application start by saying:-

"1. The Immigration Judge has used her discretion in the interpretation of the immigration rules when it was not open to her to do so. "

The grounds then go on to argue why that is demonstrated to be the case in the determination. Later in the grounds there is also criticism of the observations that the appellant could not have instituted civil proceedings for an injunction or non-molestation order because she was no longer living in Croydon, and that she could not have approached Social Services because she had no children, when that is not the case.

14. Before us it was accepted that the appellant could not strictly comply with the requirements of the IDI. As Mr Pipe put it, she could produce none of the primary documents required by the IDI but she was able to satisfy about one and a half of the necessary minimum of two documents in the secondary list. By this he meant that the Immigration Judge had accepted (and there was no challenge to this) that the letter from the women's refuge was such a document. The 'half' was the report to the police which it is accept did occur but which does not comply with the requirement for a 'home visit as a result of domestic violence'. He conceded, for the purposes of this reconsideration, that the home referred to in the IDI is the matrimonial home, on the basis that there would be no purpose in such a visit if it was otherwise.

15. The question we had to decide was whether the Immigration Judge has a discretion to accept evidence that is not specified in the IDI.

16. 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 that rule is to enable the respondent to specify what evidence is to be provided 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 an IDI. It is true that they have not been incorporated into a rule but they have been specified as a result of a power contained 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.

17. He then moved on to look at the terms of the IDI. We have described the first documents, specified in paragraph 5.2 as the primary documents. Those documents are the ones, ideally, the respondent requires in order to establish the position. They are designed to provide proof where an applicant has satisfied a court, or where the partner has admitted the conduct to a police officer. It was common ground that the appellant could not provide any of those documents.

18. Mr Pipe moved on to the list of documents we have described as the secondary documents. That requires an applicant to produce more than one in order to satisfy the respondent. The requirement for more than one clearly arises because none of the specified documents has the same degree of objectivity as does a court order, conviction or caution administered after an admission to a senior police officer. That there is a discretion as to what documents can be provided is demonstrated, said Mr Pipe, because of the use of the words "when this is not possible, acceptable evidence may take the form of…" [our emphasis]. He argued that the word 'may' shows that the documents are only examples of the type of documentation that would be accepted and that the category of documents is not closed. He argued that the IDI gives the respondent a discretion as to what documents he will accept. We do not accept Mr Pipe's argument. What the IDI says is effectively: ‘I would like to see one of the documents in the primary category but, if you cannot produce such a document, then I will permit you to (i.e. you may) produce two of the documents from the secondary list.’ "May" is used in a permissive way to allow an applicant to produce less satisfactory evidence in the event that a document from the primary category cannot be produced.

19. Of course, the respondent always has a discretion to allow any immigration application outside the rules but that is not a discretion which is challengeable if it is not exercised in the way that an applicant would like. That is because the ground of appeal from a respondent's decision in section 84(1)(f) of the Nationality, Immigration and Asylum Act 2002 (the Act) provides
"that the person taking the decision should have exercised differently a discretion conferred by the immigration rules" [our emphasis].
We accept that the IDI is not an immigration rule but a document created using a power conferred by an immigration rule. In fact we know, because it says so in the explanatory statement, that the respondent did consider exercising his discretion outside the rules to grant the application notwithstanding the inability of the appellant to comply with the rule, but he declined to do so.

20. Quite apart from the fact that any discretion perceived by Mr Pipe in the IDI is not a discretion conferred by an immigration rule, no discretion is conferred by the IDI. The language of 5.7 is quite clear in that it says that the evidence "may take the form of more than one of the following". It does not do anything to suggest that the list is not exhaustive, or that it comprises examples of the type of document that will be acceptable. Nor does it give any indication that the respondent may be prepared to accept any other documents. It merely gives an applicant the option of producing two secondary documents rather than one primary one.

21. It therefore follows that the Immigration Judge was wrong to exercise a discretion herself. She could only have done so if the respondent had been exercising a discretion conferred by him under the immigration rules in which case she would, by virtue of Section 86(3)(b) of the Act, have been able to allow the appeal on the basis that ‘a discretion exercised in making a decision against which the appeal is brought or is treated as being brought should have been exercised differently’. That is not the situation here.

22. The parties agreed that the appellant could not comply with the rule 289A and the IDI as published. They agreed that having found the Adjudicator made an error of law by exercising a discretion which she did not have, that disposed of the appeal.

23. The Immigration Judge having made that error of law we substitute our own decision:-

The appellant's appeal against the respondent's decision is dismissed on immigration grounds.

Signed Date

C P Mather
Senior Immigration Judge

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