Tribunal decisions

The decision

Asylum and Immigration Tribunal

IN (Domestic violence – IDI – policy) Pakistan [2007] UKAIT 00024

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 1 February 2007
On 05 March 2007

Before

SENIOR IMMIGRATION JUDGE LANE
Senior Immigration Judge mCgEACHY

Between

Appellant
and

THE Secretary of State for the Home Department

Respondent

Representation:

For the Appellant: Mr A. Mahmood, Solicitor, of Bedford Solicitors
For the Respondent: Ms R Brown, Senior Home Office Presenting Officer

The IDI of March 2006 on Victims of Domestic Violence does not contain any policy on the part of the Secretary of State whereby persons may be granted indefinite leave to remain if the domestic violence that caused the marriage or other relationship to break down occurred after the end of the relevant probationary period mentioned in paragraph 289A of the Immigration Rules.

DETERMINATION AND REASONS

1. The appellant, a citizen of Pakistan born on 20 July 1982, arrived in the United Kingdom on 2 June 2002 with leave to enter as the spouse of a person present and settled in this country. The period of leave was until 20 May 2003. After the expiry of that leave, the appellant applied for leave to remain on the basis that she was the victim of domestic violence. That application was refused on 22 February 2006, when the respondent decided that the appellant should be removed from the United Kingdom, by way of directions. The appellant appealed against that decision to the Tribunal and her appeal was heard at Hatton Cross on 6 April 2006 by Immigration Judge Burns. He dismissed the appellant’s appeal, both in relation to the Immigration Rules (paragraph 289A of HC 395) and on human rights grounds.

2. On 16 May 2006 reconsideration of the Immigration Judge’s decision was ordered under section 103A of the Nationality, Immigration and Asylum Act 2002. The Senior Immigration Judge who ordered reconsideration was concerned that the second of the appellant’s three grounds, which accompanied the application for reconsideration, suggested that the Immigration Judge should arguably have allowed the appeal, in the light of the facts found by him, to the extent of requiring the respondent to consider the appellant’s application in the light of a particular published policy, said to be contained in the Immigration Directorate Instructions of March 2006 regarding the victims of domestic violence.

3. At paragraph 6 of the determination, the Immigration Judge set out the nature of the appellant’s assertions that she had been subjected to domestic violence at the hands of her husband. The Immigration Judge referred to a letter of 2 April 2004 from Luton Women’s Aid, which recorded that the appellant had been known to that organisation since the beginning of that year, having requested its support following “severe physical and mental abuse by her husband, who was also supported by his family”. On 2 June 2004 the appellant forwarded to the respondent a letter from her GP, in which it was recorded that the appellant had been seen in the practice

“quite a few times with various complaints mostly of a trivial nature but on 3 March 2004 when she saw one of the partners she alleged she was having a lot of family problems and not getting on well with her husband. She feels depressed and lonely.”

4. On 20 May 2004, the appellant visited her doctor and “alleged that she had been assaulted a few times by her husband in the past but could not report this to anyone because of the Asian culture.” On examination, the doctor could not find any sign of assault or injury, although he considered that the appellant appeared depressed, anxious and worried.

5. At paragraph 12, the Immigration Judge recorded the appellant in her witness statement of 27 March 2006 as saying that “there had been an incident in August 2002 when for the first time her husband had abused her. He had slapped her and sworn at her.” At paragraph 13, the Immigration Judge noted that a few months before the expiry of her leave on 20 May 2003, the appellant informed her husband “that he should assist her in applying for indefinite stay. He said that he would not do that and that he would get her deported.” She was again beaten by her husband in March 2004 and told to get out of the house. Whilst walking along the street, a Mr SK, an “aid worker” who happened to be driving past the appellant in his car, picked her up and took her to a refuge. On 19 April 2004 Mr SK made an application on behalf of the appellant under the Domestic Violence Concession. Having left the matrimonial home, the appellant, however, then “resumed married life with her husband but on September 2004 he attacked her.” Following this, she again left the matrimonial home and had not seen her husband since September 2004. A letter from her doctor of 30 March 2006 described the appellant having “black eyelids, both upper and lower of the left eye, a small superficial bruise on the left side of the neck, generalised aches and pains.” Although these were consistent with an assault as alleged by the appellant, the doctor “could not confirm whether they were caused in that manner.”

6. At paragraph 18 of the determination, the Immigration Judge recorded the evidence of Ms SK, one of three witnesses who gave evidence. The witness stated that after the appellant had left the matrimonial home in March “she had gone back there and had resumed life there with her husband.” At paragraph 19, apparently recording the oral evidence of the appellant, the Immigration Judge wrote that “she wanted to give [her husband] another chance.”

7. At paragraph 33, the Immigration Judge stated that he regarded the appellant as displaying “a tendency to exaggeration.” He found her to be “unsatisfactory as a witness on a number of points.” She could not say who had written certain letters in English on her behalf. The Immigration Judge regarded her answers in respect of why she had not reported the alleged abuse to the medical agencies or the police as lacking conviction; nor was he persuaded by the “very limited evidence with regard to the process of divorce.” In summary, the Immigration Judge did not believe that the appellant was telling the whole truth and considered that both she and her witnesses were stretching the facts of the case “in an effort to make them comply with what they perceived and understood to be the relevant Immigration Rule.”

8. Nevertheless, the Immigration Judge found the following facts to be established. First, the appellant’s leave to enter expired on 20 May 2003. Although the appellant “had difficulties with her marriage”, these remained “at a relatively low level until March 2004.” The Immigration Judge found that the appellant separated from her husband around March 2004 but:

“of her own will resumed married life with him from around June that year until September. I did not accept that she was forced to resume married life and instead concluded that she did so willingly in the hope of reconciliation and an improved marriage. The reconciliation did not work, and the marriage broke down permanently following assault by her husband in September of that year. I accept that she was assaulted in March 2004, that being confirmed by the bruising on her arm.” (paragraph 33)

9. At paragraph 34, the Immigration Judge found that the appellant’s leave had expired on 20 May 2003 “well before the first reported indication of matters being awry in or about March 2004.” The earliest date for a permanent breakdown of the marriage, according to the Immigration Judge’s findings “would appear to be around September 2004.”

10. On that basis, the Immigration Judge did not find that the provisions of paragraph 289A of HC 395 had been met in the appellant’s case. That paragraph reads 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 or given an extension of stay for a period of 12 months as the spouse or civil partner of a person present and settled here; or

(ii) was admitted to the United Kingdom or given an extension of stay for a period of 2 years as the unmarried or same-sex partner of a person present and settled here; or

(iii) the relationship with their spouse or unmarried partner or same-sex partner, as appropriate, was subsisting at the beginning of the relevant period of leave or extension of stay referred to in (i) or (ii) above; and

(iv) is able to produce such evidence as may be required by the Secretary of State to establish that the relationship was caused to permanently break down before the end of that period as a result of domestic violence.”

11. The Immigration Judge observed the requirement in paragraph 289A that the permanent breakdown of the marriage must have occurred before the end of the period of leave as a result of domestic violence. On the basis of the Immigration Judge’s clear findings of fact, that was not what had happened in the present case.

12. Having found that the appellant could not succeed in her application under the Immigration Rules, the Immigration Judge considered the Immigration Directorate Instructions to caseworkers under the heading “Victims of Domestic Violence”. Paragraph 3.1 of these instructions reads as follows:-

“3.1. Other Acceptable Proof of Domestic Violence

It is often difficult for victims of domestic violence to produce the documentary evidence of violence as set out at 1.2 above [it would seem this is a reference to paragraph 3(i) to (iii) of the IDI, which refer to an injunction, non-molestation order or other protection order; a relevant court conviction; or full details of a relevant police caution issued against the sponsor], and there is often an unwillingness or insufficient evidence to take the matter to court. Although caseworkers should still try to obtain police or court evidence confirmation of domestic violence, where this is not possible, acceptable evidence may take the form of more than one of the following:-

- 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 GMC registered 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;

- a letter from a social services department confirming its involvement in connection with domestic violence;

- a letter of support or report from a refuge;

- a letter of support or a report from a domestic violence support organisation which is identified at annex AB.

This evidence may relate to one incident or a number of incidents and should confirm that domestic violence has taken place. Witness statements from friends or family and letters from official sources that simply relay unfounded reports by the applicant but do not confirm the incident should not be accepted. Where two pieces of evidence have been supplied but concerns remain caseworkers may contact the applicant to ask for further information.”

13. Paragraph 3.6 was also relied upon by the appellant at the hearing:-

“3.6 Out of Time Applications

Applications made ‘out of time’ after the expiry of the applicant’s limited leave, where all the other requirements are met, should nevertheless be considered sympathetically. However, ILR should be granted outside the rules. Acceptable reasons for the delay in making an application could be that the sponsor’s passport (sic) had been withheld by the sponsor or that the stress of the situation had led the applicant to overlook the need to regularise their immigration status.

Applications from long-term overstayers who claim to have been victims of domestic violence, but are unable to provide the evidence required, should be refused.”

13. At paragraph 34 of the determination, the Immigration Judge noted that paragraph 3.6 of the IDI:-

“refers to applications being made out of time, that is after the expiry of the applicant’s limited leave, ‘where all the other requirements are met’. One of the ‘other requirements’ is that the ‘relationship was caused to permanently break down before the end of that period as a result of domestic violence.’ Accordingly, in the present appeal, the appellant does not satisfy the requirements of 289A, and the appeal in respect of the Immigration Rules in my view must fall on that head.”

14. For the appellant, Mr Mahmood, at the reconsideration hearing on 2 February, sought to rely upon paragraph 2.1 of the IDI:-

“2.1 Key Points

The main points on which a caseworker needs to be satisfied in cases of domestic violence are:-

- the applicant has limited leave to enter or remain in the UK as a spouse, civil partner or unmarried partner of a person present and settled here; and

- the applicant is no longer living with the sponsor; and

- the applicant was the victim and the domestic violence occurred during the probationary period while the marriage or relationship was subsisting; and

- domestic violence was the reason for the breakdown of the marriage or relationship; and

- there is proof that domestic violence took place.”

16. According to Mr Mahmood, the IDI contains a published policy on the part of the respondent, whereby a person may be granted indefinite leave to remain in the United Kingdom if:-

(a) he or she suffered domestic violence during the probationary period; and

(b) the marriage broke down after the end of the probationary period, whether or not as a result of the domestic violence which occurred during that period.

17. The Tribunal does not find that the IDI contains any such policy. The introduction to the document stresses the purpose of paragraph 289A as being to provide a means whereby a person who has limited leave to enter or remain in the United Kingdom as a spouse, unmarried partner or registered civil partner of a British citizen or person present and settled in this country, 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 United Kingdom:-

“provided that the domestic violence occurred during the probationary period while the relationship was subsisting and the applicant is able to provide satisfactory evidence that domestic violence has taken place”.

18. The IDI enables caseworkers to grant leave, in suitable cases, where the strict requirements of paragraph 289A are not met, for example, where the types of evidence described in paragraph 3 (standard of proof), as being required by the respondent under paragraph 289A(iv) are not available to the applicant. There is, however, nothing in the IDI to suggest that caseworkers are to grant indefinite leave by reference to it in circumstances where a person has overstayed and the relationship with his or her spouse or partner has broken down only whilst the person has been an overstayer. In the ordinary course of events, a person with limited leave to remain as, for example, a spouse, who wishes to remain indefinitely in the United Kingdom, is expected to apply for such indefinite leave under the relevant provisions of the Immigration Rules (paragraphs 287 to 289). Paragraph 3.6 of the IDI provides for relief to be granted where the application under paragraph 289A is made after the expiry of the limited leave, not because the relationship has failed to break down before the end of that leave but, as paragraph 3.6 makes plain, because there has been understandable “delay in making an application,” such as the withholding of the applicant’s passport (the reference to the sponsor’s passport being an obvious misprint) or because the “stress of the situation has led the applicant to overlook the need to regularise their immigration status.” The very reference in paragraph 3.6 to “delay” is significant. On Mr Mahmood’s interpretation, there would not be any delay.

19. The interpretation of the IDI contended for by Mr Mahmood also has the frankly peculiar consequence of breaking the causal connection between the incident of domestic violence, which Mr Mahmood accepted had to occur during the probationary period, and the breakdown of the relationship. If Mr Mahmood’s primary submission as to the construction of the IDI were correct, there would be no need to require any domestic violence to occur during the probationary period. To take the facts of the present case, the incident of violence which the Immigration Judge found had occurred in August 2002 was followed by a reconciliation, which involved the appellant resuming cohabitation with her husband. According to her account, it was the violence which occurred in the summer of 2004 that resulted in the relationship permanently breaking down.

20. It follows from our findings that the Immigration Judge could not properly have allowed the appeal, even to the extent described in paragraph 2 above.

21. The determination of the Immigration Judge does not contain a material error of law and the Tribunal accordingly orders that it shall stand.

Signed Date: 20 February 2007

Senior Immigration Judge Lane