Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/07565/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20 December 2016
On 23 January 2017

Before

DR H H STOREY
JUDGE OF THE UPPER TRIBUNAL

Between

H P
(ANONYMITY DIRECTION MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Shiraz Bhanji, Counsel instructed by Cranbrook Solicitors
For the Respondent: Ms A Fijiwala, Home Office Presenting Officer

DECISION AND DIRECTIONS FOR REMITTAL

1. The appellant, a citizen of India, challenges the decision of First-tier Tribunal (FtT) Judge N P Dickson dismissing her appeal against a decision made by the respondent on 3 February 2015 refusing to vary leave to remain and to remove her by way of directions. This was in response to an application for ILR made by her on 24 October 2014 on the grounds of being the victim of domestic violence. The respondent's refusal letter reviewed the evidence submitted by the appellant which included her own statement, a victim care card dated 5 October 2014, testimonials from friends and a psychological report dated 12 October 2014 stating that the appellant was displaying symptoms of anxiety and a co-morbid depression and that her symptoms had been precipitated by a difficult abusive marriage. The respondent's letter stated:

"Whilst you have submitted a psychological report it is considered that in the absence of further corroborative evidence, police reports, MARAC [Multi-Agency Risk Assessment] letters or letters from a domestic violence organisation confirming evidence of domestic violence, it is not accepted that your relationship was caused to permanently break down as a result of domestic violence."

2. The respondent's refusal was principally under paragraph 289A of the Immigration Rules which provides:

"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:

(i) (a) the applicant was last admitted to the UK for a period not exceeding 27 months in accordance with sub-paragraph 282(a), 282(c), 295B(a) or 295B(c) of these Rules; or

(b) the applicant was last granted leave to remain as the spouse or civil partner or unmarried partner or same-sex partner of a person present and settled in the UK in accordance with paragraph 285 or 295E of these Rules, except where that leave extends leave originally granted to the applicant as the partner of a Relevant Points Based System Migrant; or

(c) the applicant was last granted leave to enable access to public funds pending an application under paragraph 289A and the preceding grant of leave was given in accordance with paragraph 282(a), 282(c), 285, 295B(a), 295B(c) or 295E of these Rules, except where that leave extends leave originally granted to the applicant as the partner of a Relevant Points Based System Migrant; and

(ii) the relationship with their spouse or civil partner or unmarried partner or same-sex partner, as appropriate, was subsisting at the beginning of the last period of leave granted in accordance with paragraph 282(a), 282(c), 285, 295B(a), 295B(c) or 295E of these Rules; and

(iii) is able to produce evidence to establish that the relationship was caused to permanently break down before the end of that period as a result of domestic violence; and

(iv) DELETED

(v) DELETED".

3. In his decision the FtT judge made a number of findings of fact which took the case in a somewhat different direction. In particular at [40] he found that:

- the appellant's marriage had broken down and that her husband may have been responsible;

- he did not treat her well and may have insulted her;

- he also "forced her to have an abortion which would have had a traumatic effect on the appellant";

- that the appellant had not suffered physical abuse.

4. The FtT judge concluded at [46] that: "The appellant has not established that her marriage broke down as a result of domestic violence. Any abuse that she received cannot fall within the meaning of domestic violence under the immigration rules."

5. As regards the definition of domestic violence, it is settled law that it is not necessary for such violence to be physical. It can also be emotional. The Home Office definition in Guidance: Domestic violence and abuse, 8 March 2016 is 'any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexuality. The abuse can encompass, but is not limited to: psychological, physical, sexual, financial, emotional.' Despite noting at [38] that the submission was made to him that such violence does not need to be physical, the judge's subsequent reasoning for finding there was no domestic violence can only be understood to rely on the absence of physical violence. That is because he accepts that the appellant suffered non-physical abuse. Insofar as it could be suggested that the judge considered the non-physical abuse to fall below the threshold of domestic violence, (i) that was not stated in terms by the judge; (ii) some of the conduct of the husband accepted by the judge clearly did fall potentially within the ambit of the concept of domestic violence and to cross any necessary threshold, viz. coercing the appellant to have an abortion. Further, in assessing whether there was domestic violence, it was necessary for the judge to consider the various types of abuse accepted to have happened to her cumulatively. Against this background, the judge's findings at [46] that "Any abuse she received cannot fall within the meaning of domestic violence ..." denotes a clear error of law.

6. As regards the issue of causation, it is difficult to follow what the judge's reasons were for his findings at [46] that the appellant "has not established that her marriage broke down as a result of domestic violence". Assuming the abuse she suffered was sufficient to constitute domestic violence, then it was clearly capable of having a causative effect on the breakdown of the marriage. There was medical evidence from Dr Halari which identified the cause of the breakdown of the marriage as being caused by psychological abuse and the abortion, which her husband forced her to have. Significantly, the judge nowhere states that he rejects Dr Halari's evidence. If he intended to reject it (as we must assume, to achieve consistency with his conclusions), then it was incumbent on him to give reasons. If the judge's observation at [43] was intended to convey a rejection, that is problematic. The judge stated that:

"43. While the abortion was a traumatic experience it is relevant that this occurred in 2010 and on 23rd February 2012 the Appellant submitted an application for leave to remain as a spouse which was granted until 26th October 2014. At the time of the application it is reasonable to assume that the Appellant was happy to continue living with her husband."

However, paragraph 289 does not specify any temporal limitations and the fact that a woman who has been the victim of domestic violence chooses to continue living with her husband (and to go on to make a further application for leave to remain as a spouse) is certainly not per se proof of either happiness or lack of or a break in, causation. The fact that the medical report from Dr Halari was dated October 2014 and that there was no more recent report is not enough in itself to explain why it was accorded no weight on the issue of causation, since by October 2014 it would appear the marriage had already broken down irretrievably.

7. In my judgment the above errors on the part of the judge constitute a material error of law and necessitate that I set aside his decision.

8. I would observe that my decision finding an error of law is not to be taken to indicate any particular view of the facts. However, whatever assessment is made must be one that takes into account the appellant's account of the behaviour towards her not just of her husband and his family (including the father-in-law's alleged inappropriate behaviour) but also the behaviour of her own family.

9. The above comment also stands as an explanation for why I have decided to remit the case to the FtT. The judge's errors appear to have arisen in part from a negative assessment of the appellant's credibility in certain respects and that assessment and his application to it if incorrect legal criteria are inextricably intertwined. Hence it is impossible to preserve any of the judge's findings of fact. To ensure time is not wasted at the next hearing I direct that the respondent provide a statement to be sent to the appellant and her representatives and to the Tribunal at least 7 days before the hearing setting out what if anything she accepts as regards the appellant's adverse experiences within her marriage.

10. For the above reasons:

The FtT judge materially erred in law and his decision is set aside.

The case is remitted to the FtT to be heard by a judge other than N P Dickson.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date

Dr H H Storey
Judge of the Upper Tribunal