Kaur, R (on the application of) v Secretary of State For Home Department [2004] EWCA Civ 818

Case No C4/2004/0614

[2004] EWCA Civ 818

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

(MR JUSTICE OWEN)

Venue Royal Courts of Justice

Date Friday, 18th June 2004

Strand

London, WC2

B E F O R E:

LORD JUSTICE LATHAM

Between

THE QUEEN ON THE APPLICATION OF MANPREET KAURApplicant

-v-

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent

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MR T MUKHERJEE (instructed by Messrs Sheikh & Co, Southall UB1 3HA) appeared for Applicant

for The Respondent did not appear and was not represented

J U D G M E N T

LORD JUSTICE LATHAM:

[1]This is an application for permission to apply for judicial review, made on behalf of an Indian national who came to this country on 26th October 1999. She had been married on 26th February 1999 to a Mr Baldev Singh, who has indefinite leave to remain in this country. When she arrived she was accordingly granted 12 months' leave to enter as a dependent spouse. The applicant applied on 25th October 2000 for that restriction to be lifted. That was refused on 12th December 2000 because she had left the matrimonial home and was no longer living with her husband.

[2]The application was renewed in different form in November 2000, when it was indicated that she had left by reason of the husband's behaviour towards her and behaviour by his family towards her.

[3]The applicant had appealed against the refusal of the Secretary of State to remove the restriction on her remaining in this country. That appeal came before an adjudicator on 10th June 2002. In a determination promulgated on 15th July 2002 the adjudicator held that the matter should be reconsidered by the Secretary of State under the domestic violence concession, in the light of findings that he made that the applicant had been assaulted by her husband and by people whom she described as her in-laws, who lived with her husband at the home during the period that she and her husband lived together. He accordingly indicated that the Secretary of State should reconsider the appellant's application on the basis of a concession which is in the following terms:

"An applicant who had limited leave to enter or remain in the United Kingdom as the spouse ... of a person who is present and settled in the UK and whose relationship breaks down during the probationary period as a result of domestic violence, may be granted indefinite leave to remain in the United Kingdom exceptionally outside the Immigration Rules provided that the domestic violence occurred during the probationary period whilst the marriage or relationship was subsisting ..."

[4]That is the basic principle. But it goes on to say:

"... and provided that the applicant is able to produce one of the following forms of evidence that domestic violence has taken place:- (i) an injunction, non-molestation order or other protection order against the sponsor (other than anex-parte or interim order); or (ii) a relevant court conviction against the sponsor; or (iii) full details of a relevant police caution issued against the sponsor."

[5]It is right to say, however, that that concession has been moderated to an extent by directions given to the Immigration Directorate as to the nature of proof which could be accepted in such cases. Paragraph 5.7 of those directions provides as follows:

"It is often difficult for victims of domestic violence to produce the documentary evidence of violence as set out at 1.2 above, and there is often an unwillingness or insufficient evidence to take the matter to court. Although caseworkers should still try to obtain police or court evidence confirmation of domestic violence, where this is not possible, acceptable evidence may take the form of more than one of the following: • a medical report from a hospital doctor confirming that the applicant has injuries consistent with being a victim of domestic violence; • a letter from a family practitioner who has examined the applicant and is satisfied that the applicant has injuries consistent with being a victim of domestic violence; • an undertaking given to a court that the perpetrator of the violence will not approach the applicant who is the victim of the violence; • a police report confirming attendance at the home of the applicant as a result of a domestic violence incident; • a letter from a social services department confirming its involvement in connection with domestic violence; • a letter of support or report from a women's refuge."

[6]The matter was then reconsidered by the Secretary of State under the policy to which I have referred. But the original decision was adhered to in a letter of 9th September 2002 on the basis that the applicant had been unable to provide an injunction, court order or police caution as required by the policy itself.

[7]That is the decision which is challenged in these proceedings. There are three bases upon which Mr Mukherjee who has ably set out, both in his written submissions and orally, all the matters which could properly be put before the court in support of this application, stating that as far as the Secretary of State's approach is concerned as disclosed in that letter it would appear to result in his fettering his discretion. If the policy is, as stated, to provide some relief for those who have been subjected to domestic violence, to restrict the forms of proof simply to those set out either in the policy or in the direction is essentially preventing the policy from being applied properly. The Secretary of State should consider not merely material which is set out in the formal documents, but also consider properly any other material of a different nature which may be put before him, bearing in mind his recognition in the direction to which I have referred that it may not always be possible for a person in the applicant's position to produce the more formal documentation envisaged in the documents to which I have referred. He submits that, in those circumstances, for the Secretary of State simply to reassert that the requisite documentation had not been provided in the face of a clear conclusion by the adjudicator establishes either that the policy itself is defective or, alternatively, the decision is irrational in the sense that a relevant consideration has not been taken into account.

[8]Secondly, Mr Mukherjee has referred me to an application by Ms Kulwinder Kaur, which was dealt with by the Secretary of State ultimately in a decision by a letter of 4th September 2003, in which it was indicated to Ms Kaur that she would no longer be subject to the restriction which was in identical terms to the one which had been imposed on the applicant.

[9]The material put before the court seeks to establish that in fact Ms Kulwinder Kaur's situation was essentially the same as that of this applicant. She had been unable to put before the Secretary of State the sort of documentation which the Secretary of State required. She had appealed to an adjudicator. The adjudicator having heard her evidence concluded that she had established that she had in fact been subject to domestic violence; and on that material being presented to the Secretary of State the Secretary of State had come to the decision that I have indicated on 4th September 2003. Accordingly, it is said, that the Secretary of State is not treating like cases alike.

[10]Thirdly, it is submitted that the Secretary of State is in any event required to adhere loyally to a conclusion of the adjudicator. I have been referred in that regard to the case of Secretary of State for the Home Department v Danaie [1998] Imm AR 84, in which this court held that where an adjudicator had come to conclusions as to the consequences to an appellant were he to be sent back to his home country, it was not open to the Secretary of State to substitute his view for that of the adjudicator.

[11]Dealing with those three arguments in turn. The first argument, attractively presented though it is and in many ways an argument which has my sympathy, does not properly take account of the nature of the decision-making process in train in this particular type of case. This is a case involving a concession. The concession is drawn in very specific terms. The Secretary of State has established a clear policy in relation to the exercise of that discretion which is set out in terms which do not seem to me to be terms which can be described as irrational, even if one would not necessarily have expressed the requirements either in that way or in quite so exclusive a way. It is open to a Secretary of State in such circumstances to impose such restrictions. In those circumstances, I agree with the decision of Owen J when he rejected this application at first instance, that the applicant has failed to make out any proper case which could justify this court interfering.

[12]As far as the second argument is concerned, whilst on its face one can see that the position of Ms Kulwinder Kaur has clear similarities with the applicant's case, nonetheless there is nothing it seems to me which entitles me to say that the way in which Ms Kulwinder Kaur was dealt with means that this applicant should have been dealt with in the same way. We are simply not in a position from these documents to conclude that there is indeed the sort of inconsistency which could justify the conclusion that there has been a mistake in the way in which this applicant has been treated, as opposed to some beneficial approach taken in relation to Ms Kulwinder Kaur for which she should be grateful but which cannot justify the conclusion that the decision in relation to the applicant is unlawful. That is what Mr Mukherjee has to persuade me is the case. The simple statement in the letter of 4th September that Ms Kulwinder Kaur was no longer subject to any restrictions, does not tell us anything about the process of reasoning in that particular decision.

[13]If one then turns to the final argument on behalf of the applicant, that again I am afraid cannot avail the applicant for this reason. The case of Danaie was concerned with a conclusion of an adjudicator which disposed of the appeal before him. In other words, he came to a decision in relation to an issue which was properly before him as part of the appellate process.

[14]The applicant in the present case was the beneficiary of a finding of an adjudicator in relation to a concession which, by its nature, is not an issue which is an issue for an adjudicator to determine. An adjudicator determines matters in relation to the application of the rules. The indication given by the adjudicator in those circumstances was no more than an indication of his view in relation to the way in which the concession might be operated in the applicant's case. The ultimate decision always remained a decision for the Secretary of State. The Secretary of State decided that he was not willing to depart from the terms of the policy in relation to the concession, and there is nothing unlawful in his concluding that that was how he should deal with this applicant's case. Clearly he will have inevitably had the views of the adjudicator in mind. That is the necessary consequence of his having reconsidered the matter in the light of the adjudicator's decision. But it cannot be said that in declining to follow the adjudicator's views he was acting unlawfully.

[15]In those circumstances, I do not consider that there is any matter of law which could justify this court in interfering with the Secretary of State's decision. Accordingly, the application is refused.

ORDER

Applications for permission to appeal and an extension of time in which to file the appellant's notice refused. (Order not part of approved judgment)