Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/10703/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10 January 2017
On 11 January 2017

Before

Deputy Upper Tribunal Judge MANUELL

Between

Mr BIPIN HAMPAUL
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Malik, Counsel
(instructed by Chipatiso Associates LLP)
For the Respondent: Mr C Avery, Home Office Presenting Officer

DETERMINATION AND REASONS
Introduction

1. The Appellant appealed with permission granted by First-tier Tribunal PJM Hollingworth on 24 November 2016 against the determination of First-tier Tribunal Judge Miles, who had dismissed the Appellant's appeal against the refusal of his claim for ILR as a victim of domestic violence under rule 289A of the Immigration Rules and under Article 8 ECHR. The decision and reasons was promulgated on 27 June 2016.

2. The Appellant is a national of India, born there on 16 October 1981. After reciting the Appellant's immigration history, which included a significant overstay, Judge Miles found that the Appellant's short marriage had ended as a subsisting relationship by 18 June 2014, as the result of the wife's choosing that she no longer wanted to be with the Appellant. The only violence took place after the marriage had broken down and was not the cause of the breakdown: see [25] of the decision and reasons. Hence the appeal was dismissed.

3. Permission to appeal was granted in the First-tier Tribunal because it was considered that it was arguable that the judge had, inter alia, applied too narrow a definition of "domestic violence", had failed to recognise that the parties had continued to live together for a period after she had written to the Home Office, that the Appellant wanted the relationship to continue and that the judge had failed to consider section 117B of the Nationality, Immigration and Asylum Act 2002.

Submissions

4. Mr Malik for the Appellant relied on the grounds of onwards appeal and grant. In summary he argued that the judge had erred in determining when the marriage broke down because it had been accepted that the parties had continued to live together after the Appellant's wife had written to the Home Office to state that the marriage was over. The Appellant had not left the matrimonial home until 2 July 2014. The judge had restricted himself when defining domestic violence and had thereby acted unlawfully when considering the evidence. Moreover, the judge had not dealt sufficiently with the evidence of the Appellant. Finally the judge was bound to consider section 117B when evaluating the Appellant's Article 8 ECHR claim and had mentioned none of the relevant factors.

5. Mr Avery for the Respondent relied on the rule 24 notice lodged earlier in which the onwards appeal was opposed. There had been no issue as to the date when the marriage failed and it was over before the Appellant left the matrimonial home. The judge had not applied too high a threshold to the assessment of domestic violence and had reached clear, properly reasoned findings. There was no material aspect of section 117B with which the judge had not dealt.

6. There was nothing which Mr Malik wished to add by way of reply.

No material error of law finding

7. In the tribunal's view the grant of permission to appeal was very generous, if not surprisingly so. There was nothing in any of Mr Malik's submissions, which amounted to no more than an extended disagreement with the proper and lawful decision of Judge Miles and an empty, technical challenge over section 117B which could not be material on the facts properly found. There was no dispute that the Appellant's wife had written to the Home Office on 18 June 2014, and the date of actual receipt by the Home Office of her letter was immaterial. The judge was entitled to find that the marriage was over at the point when the letter was written, as he said, "at latest", whatever had been the Appellant's hope for reconciliation. The judge referred to the Appellant's wife's conduct, which was in effect cheating on the Appellant. The only significant violence found by the judge was the incident when the Appellant was asked to leave the matrimonial home after he had refused: see [22] of the decision and reasons. The judge discussed the Appellant's evidence in detail at [24] of his decision and found that, while there had been arguments, there had been no domestic violence during the subsistence of the marriage, let alone any which had led to its breakdown.

8. There is no suggestion in the judge's decision and reasons that he adopted a narrow or restrictive approach to the concept or definition of domestic violence. The decision and reasons is gender neutral and is expressed in careful and judicial language throughout. Two witnesses had testified to the wife's adulterous behaviour and its effect on the Appellant and that evidence, taken with the Appellant's own testimony, was abundant support for the judge's findings about the cause of the breakdown. The judge recorded the fact that the Appellant wanted the marriage to continue, but that required the wife's agreement which was not available.

9. The judge went on to consider the Appellant's obviously weak private life claim and his similarly weak family life claim, based on his connection with his aunt: see [31]. While not perhaps identifying them by name, the judge dealt with all of the relevant section 117B factors for Article 8 ECHR purposes, i.e., section 117B(2) that the Appellant spoke English (not in dispute, no interpreter at the hearing) and section 117B(3), was, if permitted to work, capable of financial independence: see [28]. Section 117B did not add to the Article 8 ECHR assessment already undertaken in relation to rule 276ADE and it is plain that the Article 8 ECHR claim, such as it was, was comprehensively evaluated. The judge went much further than section 117B required and the relevant factors were duly considered.

10. There was no other substantive challenge to the dismissal of the Article 8 ECHR appeal, rightly for the reasons given above. The onwards appeal has no merit and must be dismissed.

DECISION

The making of the previous decision did not involve the making of a material error on a point of law and stands unchanged

Signed Dated

Deputy Upper Tribunal Judge Manuell