Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/35017/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 10 January 2018
On 11 January 2018

Before

UPPER TRIBUNAL JUDGE SOUTHERN

Between

AMANPREET HEER
Appellant

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr Z. Awan, solicitor, of Mayfair Solicitors
For the Respondent: Ms A. Fijiwala, Senior Home Office Presenting Officer

DECISION

1. The appellant, who is a citizen of India, arrived in the United Kingdom in December 2010 and was admitted as the spouse of a British citizen with leave to remain that was subsequently extended until 6 February 2015. On the last day of that leave he made an application for indefinite leave to remain as the victim of domestic violence.

2. That application was refused by a decision of the respondent made on 1 December 2015. The respondent considered the requirements of paragraph 289A(i)-(iii) of the Immigration Rules but concluded that the appellant had not met those requirements. The respondent noted that although the appellant had said that his wife had made a false complaint about him to the police, it was the appellant, and not his wife, who had accepted a police caution, which indicated he had admitted an offence and had agreed to be cautioned. In none of the evidence submitted, which included medical notes, was there any mention of the appellant being a victim of domestic violence. The respondent concluded:

"In the absence of independent corroborative evidence, such as police reports, medical reports, MARAC letters or letters from domestic violence organisations confirming that you were a victim of domestic violence, it is not accepted that your relationship was caused to permanently break down as a result of domestic violence.

As such, your application does not meet the requirements of Paragraph 289(iii) of the immigration rules."

3. The appellant's appeal came before First-tier Tribunal Judge Burnett at a hearing at Taylor House on 16 March 2017.

4. Having heard oral evidence from the appellant and his father-in law, the judge made clear findings of fact. He was satisfied that there had been no false allegation made by the appellant's wife about him to the police. On the contrary, the appellant accepted in oral evidence before the First-tier Tribunal that"he had seen his wife kiss another person and he went out of control". He accepted that he had slapped her which showed, said the judge, that he had been violent towards his estranged wife which explained why he had been asked by police to accept a caution. Indeed, as can be seen from the copy of that police caution reproduced at page 409 of appellant's bundle, the appellant signed a declaration admitting having committed the offence of assaulting his wife by beating her on 11 April 2012, contrary to s39 Criminal Justice Act 1088

5. There was reference in the documentary evidence to police reports but none that disclosed anything to support the appellant's claim to have been a victim of domestic violence. The judge noted that the first reference in the appellant's medical notes to his asserted experience of being a victim of domestic violence was in December 2015, after the date of the decision under challenge in these proceedings. The judge rejected as untrue the explanation advanced by the appellant for this, saying:

"The appellant was asked why the first mention of his domestic violence problems in his medical records was not until December 2015. The appellant stated he had told his GP everything and when he had started on his medication. I do not accept the appellant's explanations. Given the issue of domestic violence is recorded in the medical records in December 2015 I do not accept it would not have been recorded before if the appellant had stated it to his GP. I should also note that it does not appear in the medical records until after the appellant's application was refused on 1st December 2015."

6. "Mr R", a witness who was said to be the appellant's father in law, gave oral evidence in support of the appellant's claim to have been the victim of domestic violence. However, the judge did not find Mr R to be a credible witness and did not feel able to rely upon that evidence as being correct. Mr R claimed to have been a guest at the appellant's wedding but was unable to confirm his address as stated on the wedding invitation card. His knowledge of the appellant's wife was scant and there was no evidence to confirm that he was, in fact, her father. He said he no longer had any contact with her

7. Having considered the totality of the evidence produced by the appellant, the judge concluded that the appellant had not established to the standard required that he had been the victim of domestic violence. It followed that he had not established his relationship with his wife was caused to permanently break down as a result of domestic violence and so the appeal was dismissed.

8. At the commencement of the hearing before the Upper Tribunal, Mr Awan made an application pursuant to rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 because he wished the Upper Tribunal to consider evidence that was not before the First-tier Tribunal. Mr Awan indicated that the purpose served would be to demonstrate that the judge was wrong to conclude that the police reports he had notice of did not relate to allegations made by the appellant of domestic violence. This was evidence that the appellant had attended at the counter of a police station on 24 December 2014 to make a complaint that he was a victim of domestic violence. As he is recorded also to have told the police officer who completed this form that his wife had moved out of the matrimonial home, that he believed she was "in another relationship" and he did not know where she was now living, it is not entirely clear what motivated his decision to go to the police station. This report form records that the appellant said both that "she is hitting him" and, later on, that "he has not been assaulted by her but is frightened of her because he feels she has used him and no longer wants a relationship. There is evidence with the rule 15 application of a second visit to the police station on 27 December 2014 when the appellant is recorded as having said that his wife had been blackmailing him and was seeking money for his new visa.

9. The report from 27 December 2014 includes this:

"I have spoken to complainant at length. He moved to England from India four years ago and got married. His wife has moved out of the matrimonial home 4 months ago and male party believes she is in a new relationship. There are cultural differences and male party believes that his wife should still be with him and she should be arrested for being in another relationship?.. The male party wants his estranged wife to sign the papers for his new visa so he can stay in England she keeps putting this off and has stated it is no longer her problem?"

10. Also included with this new evidence was a witness statement by the appellant dated today, 10 January 2018 Rule 15(2A) demands that a party wishing to make such an application to adduce evidence not considered by the First-tier Tribunal must explain why that evidence was not before that tribunal. In his new witness statement the appellant says this is because he had forgotten he had these documents.

11. It is, frankly, hard to see how this new evidence, if admitted, would assist the appellant since it indicates that his wife had moved out of the matrimonial home in or about August 2014 to pursue a relationship with someone else and, as the appellant is clearly saying that when this occurred, he still wanted the marriage to continue, it is impossible to see how that supports his assertion that the relationship broke down permanently because of domestic violence, rather than because his wife had chosen to form a relationship with someone else. However, as Ms Fijiwala (and indeed the Tribunal) had no advance notice of this application and there was no good reason why the evidence could not have been submitted before the First-tier Tribunal, I refused to admit it, making clear that the question of whether the judge had made an error of law material to the outcome of this appeal would be resolved in the basis of the evidence the parties had chosen to put before him.

12. The grounds upon which the appellant sought and was granted permission to appeal complain that the judge fell into error in focussing on the absence of evidence of physical abuse having been visited upon the appellant:

"It is important to note that the appellant's claim has always been of controlling and psychologically abusive behaviour, taking advantage of his vulnerable immigration status and demanding money frim him. The medical notes prior to December 2015 are consistent with this account."

In this regard, the grounds point to references in the medical notes to the fact that the appellant has been treated for depression and to the fact that his low mood was due to "wife's constant nagging" and "pressure from wife for more money". However, it is not remotely arguable that the judge misunderstood how the case was put by the appellant because, at paragraph 15 of his determination he recorded the submission made on the appellant's behalf that there need not be physical harm in order for there to be domestic violence.

13. In Mr Awan's submission, the evidence should be accepted to disclose that the marriage broke down because of the unwarranted demands made by the appellant's wife for money, giving rise to the "relationship difficulties" that led to the appellant's depression, for which he sought treatment from his GP. As this involved the appellant's wife exploiting his vulnerability as a person who needed her cooperation to secure a further grant of leave to remain, that amounted to domestic violence sufficient to satisfy the requirements of the immigration rules.

14. In my judgment the evidence produced comes nowhere even close to establishing that the appellant was the victim of domestic violence and the judge was entitled to conclude that this evidence did not establish what was required by the applicable rule. It may well be that the appellant felt depressed following a breakdown of marriage, especially as his immigration status depended upon the marriage continuing. But that does not establish that the marriage broke down because of domestic violence. Further, and in any event, it is the appellant's own evidence, as set out in his witness statement, that since December 2013 he and his wife slept in separate bedrooms and he suspected that she was being unfaithful to him. From February 2014 she began to spend two days a week away from home, explaining that she was pursuing a dental course in London, but the appellant had no idea where or with whom she was staying when away from home. At paragraph 18 of his statement the appellant explained how he discovered, sometime after June 2014 that "she was going out with a guy" and she had made clear that she no longer wished to live with the appellant. It is clear from this that whatever relationship may have existed previously, by then it had broken down, not because of domestic violence but because the appellant's wife had no interest in the relationship continuing.

15. The grounds assert next that the judge failed adequately to consider evidence in the form of text messages reproduced in the appellant's bundle. But the judge did have regard to this evidence and was entitled to find that they undermined rather than supported the case being advanced by the appellant. The judge made clear what he made of this evidence and why:

"I have considered the text messages contained within the bundles of documents but I give those little weight in my assessment. The majority of the messages seem polite and cordial. The appellant responds at times stating he would like to buy things for the children and is sending the money to the recipient of the text as a result. In December 2014 the text states he wished his estranged wife a happy Diwali and hoped she was OK. She responded stating the same to him. There are a number where the appellant contacts the person in the text message and offers money, rather than a demand for money. The messages are odd when one reads the totality of them. In one the appellant states to her that he is leaving her house and wishes to return her keys. She asks him why as she thought he was waiting for his visa. I do not consider that they provide much support for the appellant's claims that he is the victim of domestic violence."

16. Mr Awan submitted that it was not reasonably open to the judge to characterise the text messages as "polite and cordial" but a perusal of the messages makes such a submission untenable. That was an assessment plainly open on the evidence and is one that discloses no error on the part of the judge.

17. The next ground complains that the judge erred in failing to give weight to the evidence of Mr R but, for the reasons given above, the judge was plainly entitled to reach the conclusion he did and this ground is no more than an expression of disagreement with clearly reasoned findings of fact legitimately made by the judge. In any event, as pointed out by Ms Fijiwala in her submissions, Mr R had only scant knowledge of the appellant's wife, despite the asserted relationship, and had not been in any contact with her for some time.

18. Next, the grounds assert that the judge should have accepted the oral and written evidence of the appellant and that the judge fell into legal error in rejecting that evidence on the basis that corroborating evidence was absent. But the judge did not dismiss the appeal because corroborating evidence was absent. That is to misrepresent what the judge has said. The judge has provided clear and sustainable reasons for finding wanting the evidence of the appellant and his witness and in so doing he made clear that he could find nothing in the evidence as a whole that might provide support for the appellant's account of being a victim of domestic violence. Mr Awan's submission was that the judge erred in not properly considering the appellant's oral evidence. That is not arguable either. Under a heading "Findings and conclusions" at paragraph 18 of the determination the judge said:

"I start with a consideration of the appellant's evidence. "

And set out a discussion of that evidence between paragraphs 18- 24, from which it is unambiguously clear that the judge did precisely that which the grounds complain he did not.

19. Therefore, it is entirely clear that the judge gave careful consideration to all of the evidence the parties chose to put before him.

20. For all of these reasons I am entirely satisfied that the judge made no error of law and that his finding of fact, that the appellant had not established that his relationship with his wife was caused permanently to break down as a result of domestic violence, is simply unassailable.

Summary of decision:

First-tier Tribunal Judge Burnett made no material error of law and his decision shall stand.

The appeal to the Upper Tribunal is dismissed

Signed

Upper Tribunal Judge Southern

Date: 10 January 2018