Domestic violence settlement applications and appeal rights

29 Nov 2017

Should a foreign national spouse claiming domestic violence have a right of appeal against a refusal of leave to remain? Garden Court North Chambers’ Lucy Mair explores the High Court’s answer in R (AT) v Secretary of State for the Home Department [2017] EWHC 2589 (Admin) in an interview with LexisNexis. A copy of her interview, reproduced by permission, appears below.

Original news

R (on the application of AT) v Secretary of State for the Home Department [2017] EWHC 2589 (Admin)[2017] All ER (D) 94 (Nov).

The Administrative Court held that the defendant Secretary of State’s refusal of the claimant Pakistani national’s application for indefinite leave to remain based on domestic violence had been reached by an unfair process. The court also found that Appendix AR of the Immigration Rules, which replaced appeals with administrative review, had been wrongly drafted, but that it should not be quashed. The right course would be to give effect to its application to domestic violence claims that were not also human rights claims, while recognising that it could not be read as overriding the provision in section 82 of the Nationality, Immigration and Asylum Act 2002 (NIAA 2002) which conferred a right of appeal in a domestic violence case that was also a human rights claim.

What was the background to the case

Historically there has for many years been a route under the Immigration Rules to protect victims of domestic violence. Under this route those who come to the UK to marry and are granted leave to remain as spouses, but whose marriages break down as a result of domestic violence, can apply to remain in the UK indefinitely in the same way they would have been able to had they remained married to a British citizen. The policy imperative behind this route is clear—to enable those subject to domestic violence to leave their abusive relationships without losing their immigration status or right to remain in the UK.

Previously, where these applications were rejected there was a statutory right of appeal to the First-tier Tribunal and those appeals had a very high rate of success. However, since 6 April 2015, due to a combination of statutory changes limiting rights of appeal under NIAA 2002, s 82, and changes to the Immigration Rules stipulating that victims of domestic violence would only have a right to administrative review under Appendix AR, these applicants are now denied a right of appeal to the tribunal where their applications are refused and thus find it exceedingly difficult to vindicate their claims to be victims of domestic violence.

What issues arose for the court’s consideration?

There were two issues for the court to decide in this case. 

The first was with regard to the treatment of the claimant’s individual application for indefinite leave to remain in the UK as a victim of domestic violence. Her application had largely been refused on the basis of correspondence between her ex-husband and the Home Office, never disclosed to the claimant, where he alleged that she had simply used him to come to the UK and that she alone was responsible for the breakdown of the marriage. All of the claimant’s evidence was then measured against the ex-husband’s undisclosed statement and rejected, as it did not conform to his account of the marriage breakdown.

The second issue was the broader point of principle regarding the removal of appeal rights for victims of domestic violence. The claimant argued that all domestic violence applications were inherently human rights applications and should therefore continue to attract a statutory right of appeal under NIAA 2002, s 82. She also sought the quashing of the wording in Appendix AR of the Immigration Rules which excepted domestic violence cases from the statutory appeals regime and subjected them to an administrative review instead.

What did the court decide, and why?

The court agreed that the defendant’s decision in this case had been unlawful and irrational. Great emphasis was placed on the procedural unfairness of the decision making. Mr Justice Kerr found that the process was unfair on two counts:

‘First, it was procedurally unfair not to make known to [the claimant] at least the gist of what was said by [the ex-husband] in his detailed letter…Secondly, I do not accept the Secretary of State’s submission that [the ex-husband]’s account was properly evaluated. It was accepted as true without evaluation, and then relied on as the main reason for rejecting [the claimant]’s account.’

With regard to evidence which the claimant had submitted from third parties to whom she had reported her abuse (ie the police, her GP and counsellor, a friend, her aunt and her employer), Mr Justice Kerr said it was ‘capable of amounting to corroboration, and of rebutting any suggestion of fabrication’. The decision-maker had wrongly referred to the ‘absence of any corroborating and contemporaneous evidence to the events that you claim’. He pointed out that in sex offence prosecutions, such evidence was routinely called by the Crown and was admissible to rebut any suggestion of fabrication or afterthought. In that jurisdiction, no-one suggested that it was not capable of being probative.

In terms of the broader point of principle, Mr Justice Kerr found that some, although not necessarily all, applications for domestic violence were indeed also human rights claims and that the defendant could not, without primary legislation, remove the right of appeal for domestic violence claims that were also human rights claims, as that would be contrary to NIAA 2002, s 82(1)(b). In terms of a remedy, Mr Justice Kerr found that while he agreed with the claimant that Appendix AR was wrongly drafted, the right course was to ‘give effect to its application to domestic violence claims that are not also human rights claims, while recognising that it cannot be read as overriding the provision in NIAA 2002, s 82, which confers a right of appeal in a domestic violence case that is also a human rights claim’. Mr Justice Kerr did that by adopting a purposive construction of the relevant rule in Appendix AR.

How does the decision fit in with other developments in this area of law?

The judgment will no doubt be one of several cases attempting to claw back rights of appeal in immigration law, specifically to ensure that very vulnerable clients, such as those victimised by domestic violence, continue to have access to an independent tribunal judge to adjudicate upon their claims. 

What are the implications for practitioners? What will they need to be mindful of when advising in this area?

Previously the defendant’s position has been that those applying for indefinite leave to remain as victims of domestic violence who also want to assert their human rights have to fill in two separate charged application forms—SET(DV) and FLR (FP). This approach was roundly rejected by Mr Justice Kerr: 

‘It is obvious that in domestic violence claims the form to be used should include an option to assert that the claim is also a human rights claim. I hope the forms will be revised accordingly, as soon as the Secretary of State’s busy schedule permits. Meanwhile, I hope she will be advised to treat a single application, whether on form SET(DV) or on form FLR(FP), as a valid application, even if it purports to be both a domestic violence claim and a human rights claim.’

Thus practitioners would be well advised to ensure that their clients’ domestic violence and human rights claims are articulated under the cover of one application, presumably SET (DV). This would arguably also mean that applicants do not fall foul of para [34BB] of the Immigration Rules which precludes an applicant from making more than one application at a time.

It will also be important, in order to ensure that a refusal of the application does indeed generate a right of appeal to the tribunal on human rights grounds, to clearly and fully articulate the nature of the human rights claim being made in a covering letter to the application and to ensure that there is witness evidence from the applicant and any other witnesses providing the factual basis for that claim. That basis will usually be the person’s family and/or private life built up in this country and the reasons that this could not be enjoyed in the home country, including any ongoing support as a victim of domestic violence that the applicant is receiving in this country as well as any reasons the applicant would not be accepted back into her family or community in her home country.

Lucy Mair appeared for the claimant in this case. She was instructed by Ajid Miah, of Silverdale Solicitors, and Erica Restall, of Ison Harrison Solicitors.

Interview by Robert Matthews.

The views expressed by our legal analysis interviewees are not necessarily those of the proprietor.

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