Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/26361/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 26th May 2016
On 13th June 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE RAMSHAW

Between
MISS SEEMAB IQBAL
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

Secretary of State FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R Sharma, of counsel
For the Respondent: Mr L Tarlow, a home office presenting officer

DECISION AND REASONS
Introduction
1. This is an appeal by the appellant against a decision of the First-tier Tribunal dismissing her appeal against a decision taken on 14 May 2014 to refuse her application for indefinite leave to remain on the grounds of being a victim of domestic violence.
Background Facts
2. The appellant is a citizen of Pakistan who was born on 9 November 1987. She entered the UK on 25th March 2012 with leave as a Tier 4 student. She was subsequently granted leave to remain as a foreign spouse from 18 June 2013 to 18 June 2015. On 2 April 2014 she applied for indefinite leave to remain as a victim of domestic violence under the Immigration Rules HC395 (as amended). That application was refused because the Secretary of State was not satisfied that the appellant had shown that her relationship had been caused to permanently breakdown as a result of domestic violence.
The Appeal to the First-tier Tribunal
3. The appellant appealed to the First-tier Tribunal. In a determination promulgated on 8 September 2015, Judge Meah dismissed the appellant's appeal. The First-tier Tribunal found the appellant's evidence to be incredible, that she had not been the victim of domestic violence and that she was not a witness of truth.
The Appeal to the Upper Tribunal
4. The appellant sought permission to appeal to the Upper Tribunal. The grounds of appeal, in essence, were that the First-tier Tribunal failed to follow case-law, that the judge applied a higher standard of proof, failed to consider the evidence appropriately, had conducted the hearing in an unfair manner and failed to adjourn the matter when the representation was wholly inadequate. On 12 April 2016 First-tier Tribunal Judge Hollingworth granted the appellant permission to appeal. In granting permission Judge Hollingworth indicated that it was arguable that the analysis of the judge was insufficient and that the judge had failed to set out sufficient reasons in relation to the lack of supporting evidence and failed to attach sufficient weight to that evidence. Thus, the appeal came before me.
Summary of the Submissions
5. The first ground of appeal argues that the judge erred by failing to follow the case of JL (Domestic violence: evidence and procedure) India [2006] UKAIT 00058 ('JL'). It is asserted that in that case the respondent conceded that the correct standard of proof in domestic violence matters is the low standard. Reference is made to paragraph 14 of the decision in JL. It is asserted that the decision in JL was confirmed by the Court of Appeal in Ishitaq [2007] EWCA CIV 386 and by the court in R (Hadis Balakoohi) v SSHD [2012] EWHC 1439 (Admin).
6. The second ground of appeal is that the judge adopted a standard of proof higher than the balance of probabilities. Reference is made to paragraph 12 of the First-tier Tribunal decision. It is asserted that the judge was incorrect to say that no proper supporting evidence had been provided as evidence had been obtained from the appellant's GP and from proof of her attendance of appointments with her local mental health team. It is also argued that the judge erred by failing to attach appropriate weight to the evidence that the appellant had submitted from official sources.
7. The third ground of appeal is that the judge failed to consider the evidence appropriately. It is asserted that the judge did not attach weight to the evidence from the appellant's GP and her psychiatrist. The grounds assert that the judge entered into conjecture by stating that the GP, psychiatrist and psychologist do not have the ability to detect whether or not the time limited NHS resources are being misused. It is submitted that it is arguable that when read in conjunction with paragraph 17 the judge erred by requiring up-to-date evidence.
8. The fourth ground of appeal is that the judge conducted the hearing in an unfair manner. It is submitted that the judge placed far too much focus on the appellant's vague responses concerning her sex life. It is asserted that the appellant found it difficult before a male judge, the male Home Office presenting officer and a male representative to discuss the issue of sex. It is submitted that the judge erred by expecting that the appellant would be comfortable talking about her sex life or sexual abuse. It is asserted that the insensitive manner in which these issues were approached during the hearing has led to a situation of unfairness. Reference is made to the witness statement of the appellant of 27 February 2015 wherein it makes clear that she felt uncomfortable disclosing and discussing her marital life with her male representative. It is asserted that in these circumstances, in order to ensure fairness and justice, it was incumbent upon the judge to ascertain whether or not the appellant was content to proceed with an all-male court or whether she would prefer an all-female court. It is submitted that the un-comfortability faced by the appellant in answering such questions would explain her vague responses. It is submitted that there is no major discrepancy in the appellant's evidence as despite the incapability of her ex-husband to consummate their marriage he still made sexual demands. It is asserted that the judge's finding that the appellant had concocted an elaborately elaborate scenario in order to achieve indefinite leave to remain in the UK was wholly unfair and inaccurate and not a finding open to the judge because this ignores the possibility that the appellant could succeed under paragraph 276ADE in that as a single woman in Pakistan without any male support network she would face significant obstacles in re-establishing herself in the country deemed to be the third dangerous for women. And furthermore there are protection issues arising based upon the risks that the appellant would face an account of her membership of a particular social group and again having no male support network upon which she could rely upon for protection
9. The fifth ground of appeal is that the judge failed to adjourn the matter when it was clear that there was wholly inadequate representation. It is submitted that the duty of the first-tier tribunal judge is to ensure fairness, justice and just disposal of matters and that the judge therefore has an obligation to adjourn matters. It is submitted that it incumbent upon judges to halt proceeding where representation is wholly inadequate. The appellant relies upon the decision of BT (Former solicitors' alleged misconduct [2004] UKIAT 311. It is asserted that the allegation concerning the conduct of the previous representatives, Bajwa and Co, will be put to that firm. The grounds of appeal set out the following comments that it is asserted the judge made about the quality of the representation:
'(a) I also received the appellant's bundle comprising a total of 14 page purporting to contain various other documents to support the appeal (paragraph 5)
(b) Mr Bajwa's very brief submissions (paragraph 17)
(c) Mr Bajwa did not seek to persuade me ? All he did was to ask me to accept the appellant's story ? And to allow her appeal on that basis. (Paragraph 18)
(d) Mr Bajwa stated article 8 was not being relied upon. Paragraph 21'
10. Mr Sharma adopted the grounds of appeal and submitted that the cases of JL and Ishitaq assisted the appellant. He submitted that the judge had misdirected himself as to the proper approach. In response to my question Mr Sharma confirmed that no application had been made at the First-tier tribunal hearing either for the matter to be adjourned or for the case to be heard by an all-female court. He submitted that it was open to the tribunal to infer that the appellant felt uncomfortable. He submitted that when the tribunal is dealing with issues of this nature they should be cautious. In particular, the appellant's background is one of conservatism, she is from Pakistan. He referred to her conservative appearance and the background information provided in support. He submitted that those factors together with the nature of the answers given by the appellant should have highlighted to the judge that something was not right. He submitted that the judge fell into error in finding that there was no evidence to support the appellant's assertions. He submitted that there was sufficient evidence that there was a strong possibility that the appellant had suffered domestic violence.
11. Mr Sharma submitted that the complaint about the representation had been put to Bajwa and Co. He submitted that the representation was so inadequate that the judge should have adjourned the matter. When looking at the content of the bundle of documents it is clear that supporting documents have not been included that were available. He submitted that although Article 8 was not being pursued it was improper not to consider paragraph 276ADE. There is no reference to Article 8 in that paragraph. He submitted that the brevity of the determination and the appeal bundle has resulted in the appellant not being able to make her case properly yet
12. Mr Tarlow relied on the Rule 24 (of the Tribunal Procedure (Upper Tribunal) Rules 2008) response. He submitted that the standard of proof is the civil standard which is the balance of probabilities, there is no lower standard in domestic violence cases. He submitted that the judge could reasonably do what he had to do which was to make a finding on the evidence as to whether or not the appellant had been a victim of domestic violence. He submitted that it is clear from paragraphs 17 and 18 that the judge took into account that there is no mention of evidence of domestic violence made by the health professionals. The finding of the judge was entirely open to him. He noted that no evidence has been produced today that the complaint had been made to Bajwa and Co. He submitted that the determination is more than adequate, there are sufficient reasons and that there was no material error of law.
Discussion
13. I will deal with the fifth ground of appeal first. It is asserted that the representation by Bajwa and Co was wholly inadequate so that the failure of the judge to adjourn amounted to a material error of law.
14. In BT (Former solicitors' alleged misconduct) Nepal [2004] UKIAT 00311 the Tribunal considered:
"4. Ms Tucker asserts that the letter from the solicitors dated 11 August was in response to the Appellant's refusal to pay their fees. We do not know whether or not that is right and we decline to make any finding against Adams Solicitors in a case in which, although allegations are made implicitly against them, they have been given no opportunity at all to reply to them. If the certificate which they gave in July is true, then the reason for the letter of 11 August may, in truth, be that the Appellant had decided no longer to retain them as her solicitors. We do not know.
5. We wish to make it clear that, in general, we will not make a finding of fact based on an allegation against former representatives unless, first, it is clear that the former representatives have been given an opportunity to respond to the allegation which is being made expressly or implicitly against them, and secondly, we are either shown the response or shown correspondence which indicates that there has been no response."
15. In this case the appellant now indicates that a complaint has been made to Bajwa and Co. However, no correspondence was provided indicating such and neither was any response available. In respect of the assertion that the judge made comments about the quality of the representation and the particular paragraphs quoted I find that these are not critical about the quality of the representation. For example, the appellant's 'quote' from paragraph 18 is taken out of context and is misleading:
"Mr Bajwa did not seek to persuade me? All he did was to ask me to accept the appellant's story? And to allow her appeal on that basis. (Paragraph 18)"
16. At paragraph 18 the judge was referring to whether or not the appellant was suffering from suicidal ideation when he set out:
"There is no evidence to suggest that the appellant is suicidal or that she is suffering from suicidal ideation and again, Mr Bajwa did not seek to persuade me that this was the case or that it was a relevant consideration here. All he did was to ask me to accept the appellant's story regarding what she said she suffered at the hands of her husband, and to allow the appeal on that basis."
17. I do not find that the judge's comments referred to by the appellant, either individually or collectively, are indicative of the judge having concerns about the quality of the representation. No specific details of the inadequacy of representation have been given. No written evidence of a formal complaint and a response from Bajwa and Co have been provided. I do not consider that it was not incumbent upon the judge to adjourn the matter. There was no material error of law.
18. The fourth ground of appeal is that the judge conducted the hearing in an unfair manner. No application was made by the appellant for the hearing in the First-tier Tribunal to be before an all-female court. There was no application for an adjournment.
19. It is asserted that the issues were approached in an insensitive manner and that the appellant's un-comfortability with answering intimate questions could explain why her answers appeared vague. The appellant did indicate (in correspondence) that she had felt embarrassed in discussing the details of her marital relationship because her representative was male. The judge concluded that the failure by the appellant to explain what he saw as a major discrepancy in the evidence 'significantly damages her credibility'. However, the judge did not consider solely the evidence given orally during the hearing he also considered the application, the witness statements of 28 August 2014 and 18 August 2015 and the information provided to her GP and other health professionals. Whilst it is incumbent upon a judge to ensure that a hearing is conducted fairly which includes ensuring that any questioning is appropriate it is not incumbent upon a judge to ascertain whether or not the appellant was content to proceed with an all-male court purely on the basis of a mention in a letter that the appellant had been uncomfortable and when the appellant was legally represented at the hearing. I do not consider that the judge conducted the hearing in an unfair manner.
20. I also note (although this is not a point I have taken in to consideration in my error of law decision) that the appellant was represented by Mr Sharma, a male barrister, at the hearing before me and no application had been made for an all-female court for the Upper Tribunal hearing. If an error of law was found the hearing would ordinarily proceed with a view to re-making the decision in the Upper Tribunal which may entail giving evidence and being cross examined.
21. It is also argued that the judge's finding that the appellant had concocted an elaborately elaborate scenario in order to achieve indefinite leave to remain in the UK was wholly unfair and inaccurate and not a finding open to the judge because this ignores the possibility that the appellant could succeed under paragraph 276ADE and there are protection issues arising based upon the risks that the appellant would face an account of her membership of a particular social group. The appellant's representative informed the judge that Article 8 was not being pursued. No grounds appear to have been pursued in relation to the appellant's private life either under paragraph 276ADE or outside the Immigration Rules. No application for asylum or humanitarian protection has been made. There was no error in the judge failing to consider either of these issues in the circumstances.
22. The first ground of appeal argues that the judge erred by failing to follow the case of JL. It is asserted that correct standard of proof in domestic violence matters is a low standard.
23. In the headnote in JL the Tribunal set out:
"2. Evidence of domestic violence. If (but only if) there has been a valid application, the Immigration Judge is not confined on an appeal to the evidence "required" by the Secretary of State, nor is an appeal bound to fail if the "required" evidence has not been produced. The question of whether domestic violence has occurred is to be determined on the basis of all the evidence before the Immigration Judge. Paragraph 289A(iv) is to be read down to reflect this."
24. There is no finding that the standard of proof is a low standard. The issue concerned the requirement in the IDIs for certain specified 'required evidence' to be produced. The Tribunal held:
"38. The suggestion that an appellant appearing before the Tribunal and seeking to prove a fact of which he has the burden of proof is limited to proving it by evidence and on terms prescribed by the respondent is a somewhat alarming one. The terms of paragraph 289A of the Immigration Rules, if interpreted in the sense for which the respondent contends, and if directly applicable, as he submits, to the determination of an appeal, apparently mean that any evidence available to the appellant, however independent and however persuasive, can be excluded from the decision-making and appellate process by the respondent simply not "requiring" it. Further, an appellant who is unable to produce evidence that is "required" by the respondent will be prevented from proving his case, however persuasive the other evidence that he submits. If the Secretary of State's case is right, the Immigration Judge could be required to dismiss the appeal, and to ignore the persuasive evidence, for the simple reason that the evidence "required" had not been submitted?
46. For this reason we consider that the provisions of paragraph 289A that refer to the need to provide the evidence "required" by the Secretary of State apply only within the parameters of s31A and the Regulations. Once a valid application has been made the role of the "requirement" ceases and, in accordance with the power to make them under s3(2) of the 1971 Act, the provisions of paragraph 289A should be read without reference to the requirement. On this view, for the purposes of an appeal, paragraph 289A(iv) is to be read down as:
"(iv) is able to establish that the relationship was caused to permanently break down before the end of that period as a result of domestic violence.""
25. In Ishtiaq the Court of Appeal confirmed that an applicant should be expected to produce evidence of the kind provided for in the IDI guidance but if she cannot then any cogent relevant evidence can be taken into account:
"31. In my judgment, para 289A(iv) should be construed so as to further the policy of enabling persons whose relationships have permanently broken down as a result of domestic violence before the end of the probationary period to be granted indefinite leave to remain. A construction which precludes an applicant, whose relationship has in fact broken down as a result of domestic violence, from proving her case by producing cogent relevant evidence would defeat the evident purpose of the rule. The purpose of para 289A(iv) is to specify what an applicant has to prove in order to qualify for indefinite leave to remain during the probationary period: viz that the relationship has been caused to break down permanently as a result of domestic violence. It is not the purpose of para 289A(iv) to deny indefinite leave to remain to victims of domestic violence who can prove their case, but cannot do so in one of the ways that have been prescribed by the Secretary of State in his instructions to caseworkers." [emphasis added]
26. In Balakoohi, the High Court set out that independent and objective evidence is not required to establish a claim for domestic violence.
"83. Finding. It is not correct that independent and objective evidence must be provided to establish a claim for domestic violence. As Dyson LJ explains in his judgment in Ishtiaq , the applicant should be expected to produce evidence of the kind provided for in the IDI guidance. Where such evidence is lacking, the decision-maker should, where appropriate, ask the applicant to produce further evidence which is independent and objective, namely evidence which supports or corroborates the applicant's evidence but which is derived from a source other than the applicant. If the applicant gives good reasons for not being able to produce it, she should be permitted to rely on whatever evidence she wishes. It will be for the decision-maker, in carrying out the structured decision-making process using all evidence provided, to decide how much weight should be placed upon that all the evidence including evidence which is self-serving or lacking in independence and objectivity. [emphasis added]"
27. The cases establish that the question of whether domestic violence has occurred is to be determined on the basis of all the evidence before the Immigration Judge. The weight to be attached to that evidence is a matter for the judge. The cases do not support the appellant's assertion that there is a lower standard of proof in domestic violence cases. The judge applied the correct standard as set out on paragraph 6 of the decision namely, balance of probabilities.
28. Grounds 2 and 3 are interrelated. Ground 2 argues that the judge applied a higher standard of proof than balance of probabilities. Reference is made to paragraph 12 of the decision where the judge found:
"There was in fact no proper supporting evidence to show that the appellant had been the victim of any domestic violence?"
29. Ground 3 argues that the judge failed to consider the evidence appropriately.
30. The judge did consider the evidence in the appellant's bundle which was at pages 2-12. He describes this as letters from the NHS. He also considered documents sent in support of the application which included notes from her GP. The judge did not consider that this evidence showed that the appellant had suffered from domestic violence. When looking at the evidence it is clear that his was a finding open to the judge. The two GP notes of 16 August 2013 and 16 January 2014 make no mention of domestic violence being reported. The impression is one that the appellant was depressed because her in laws had taken her husband to their house and they had been brainwashing him against her and subsequently because her husband had moved out and sent divorce papers. The GP notes record on 17 February 2015 - history of domestic violence (First). The letter from her psychiatrist on 16 December 2014 does not mention domestic violence. The letter dated 4 February 2015 from her community social worker mentions abuse from her in-laws - no specific details are given. The letter dated 29 October 2014 from a counsellor refers to the appellant disclosing that she is being harassed by her former - in laws which she described as mentally torturing her - this was because they continue to send her bills. As the judge correctly pointed out at best these indicate that the appellant has reported that she has been the victim of domestic abuse. This does not lead to a conclusion that the judge considered that objective independent supporting evidence was a requirement. The question of whether domestic violence has occurred is to be determined on the basis of all the evidence before the judge. The weight to be attached to that evidence is a matter for the judge. The judge had the benefit of seeing the appellant and hearing her giving oral evidence. He was able to assess her credibility at first hand. The evidence in this case is not consistent. The application provides no detail of sexual abuse or specific incidents that amount to domestic violence. There were a number of complaints about her in-laws and of her husband being rude. The witness statement in support of her application mentions that after an argument her husband packed his bags and went back to his fathers "I have been crying and contacted him many times. I even apologised if there is anything wrong I've said. He does not want to live together and wanted a divorce." There are several other pieces of evidence that similarly paint a different picture to the appellant's later evidence. The judge considered all the evidence in the round. The findings were ones that were open to him.
31. The judge did not require up to date evidence. When considering paragraph 17 it is clear that what the judge was referring to is evidence of the appellant's suicidal ideation which may have been relevant and would need to be assessed at a current date.
32. There are no material errors of law in the First-tier Tribunal decision.
Decision
There was no error of law such that the decision of the First-tier Tribunal is set aside.

Signed P M Ramshaw Date 10 June 2016

Deputy Upper Tribunal Judge Ramshaw