RM (Pakistan) v Secretary of State for the Home Department [2007] EWCA Civ 1437

Case No C5/2007/1668[2007] EWCA Civ 1437
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No. 1A/02182/2006]
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday, 20 th November 2007
Before
LORD JUSTICE PILLLORD JUSTICE SEDLEY
Between
RM (PAKISTAN)ApplicantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
THE APPLICANT APPEARED IN PERSON for in person for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED
Judgment
[1]This is an application by RM (Pakistan), anonymity having been granted, for permission to appeal against a decision of the Asylum and Immigration Tribunal promulgated on 30 April 2007, dismissing the applicant’s appeal against the prospective respondent’s -- that is the Secretary of State refusal to grant her indefinite leave to remain in the United Kingdom. This is a renewed application, Sir Henry Brooke having refused it on paper on the ground that no arguable error of law had been detected.[2]The applicant is thirty-five years old, a national of Pakistan. She arrived in the United Kingdom on 24 December 2003 in possession of an entry clearance visa for settlement as a spouse of KM, whom she had married in a traditional marriage in Pakistan on 27 October 2002. He had permanent leave to remain in the United Kingdom. The visa was valid for two years -- that is, until December 2005.[3]Just before it expired, the applicant applied for indefinite leave to remain under paragraph 289A of the immigration rules, as amended. She claimed to be a victim of domestic violence under that paragraph. The requirements are set out; I do not cite them verbatim, but it is necessary to establish, amongst other things, a subsisting relationship at the beginning of the period of leave -- that is, in December 2003 -- and a requirement that the relationship has broken down and must have been caused to break down permanently before the end of the relevant period as a result of domestic violence. It is that requirement which is the central issue in this appeal.[4]Following refusal by the proposed respondent, the applicant appealed to the tribunal. An appeal was dismissed on 8 May 2006. The immigration judge found that the relationship had been subsisting in December 2003, relying on the provision of funds by the husband to the applicant to travel. The judge was not satisfied as to the further requirement which I have already cited. A reconsideration was ordered by a senior immigration judge on 19 May 2006. The AIT found that the test imposed by the first judge had not been the appropriate test and it is the second stage reconsideration which is now the subject of the present application. At the hearing in April 2007 the applicant was represented by Mr Bajwa. The appeal was dismissed on both immigration and human rights grounds under articles 3 and 8 of the Convention.[5]The applicant submits that there was an error of law in the tribunal decision. She has submitted written grounds and developed these orally this morning. She had requested that an interpreter be present, but it appears to me that her English is sufficiently good; indeed, so sufficiently good that the court has followed her submissions made in English and the services of the interpreter she requested have not in the event been required.[6]One ground of appeal is that the decision of the tribunal against her was based on a different paragraph of the rule from the decision of the Home Office. The Home Office found that the applicant did not comply with paragraph 3 of the rule: that is the requirement of a subsisting relationship in December 2003. However, the consideration by the tribunal was, and rightly was, of the entire position and the Home Office in their letter did mention domestic violence; they did not need to make a finding about it because the applicant failed at the earlier stage -- sub-paragraph 3. I am quite unable to find an arguable error of law on that basis. It is submitted that the tribunal went wrong on causation. I have considered the determination of the tribunal. They appear to me to have taken considerable care in their approach to the evidence. Evidence was given by the applicant and the circumstances, and her allegations as to the cause of the breakdown of the marriage, appear to me to have been considered in detail and with the right considerations in mind.[7]The immigration judge constituting the tribunal did not believe the applicant’s evidence about her husband’s assaults on her. Of course, we have not heard his side of the story, but it appears to me on the basis of the information available that the applicant has had a bad time as a result of her coming to this country and the sequence of events which has followed. She says that her health has been affected and I have no reason to doubt that for present purposes. However, the fact-finding tribunal is the AIT, and the issue was considered by the AIT. The issue was considered whether her condition had been caused by physical violence and material in relation to bruises she claims to have had. It is right to say that a doctor, at the relevant time, reported that complaints had been made to him about bruising, but the tribunal commented, as it was entitled to comment, that there was no independent evidence of bruising caused to the applicant.[8]The tribunal took the view that the mother-in-law had a part to play in the breakdown of the marriage. The husband had not told the applicant that he had had a previous marriage, with children as a result of it. At paragraph 38 the tribunal state:
“The problem that arose with her mother-in-law was that insufficient dowry had been paid and that her mother-in-law expected more dowry which she could not afford. She also states that she discovered that her husband was previously married and had children but that she was prepared to accept this.”
[9]The tribunal considered the evidence which had been given about violence. The tribunal considered the letter from the Women and Girls’ Support Group of 7 February 2004. At paragraph 43 it is commented that the reason for the behaviour of her husband and in-laws was due to arguments about dowry. The husband attempted to resolve the situation which had arisen between his wife and his mother. At paragraph 43, according to her own evidence, it was not her husband who was demanding dowry. Indeed, he went as far as asking his mother to leave his home because of her demands for more dowry. Reference is made to the absence of documentary evidence of violence, and the conclusion is expressed at paragraph 48:
“I have carefully considered all the evidence on the file before me and the appellant’s oral evidence. I do not find her to be a credible witness. On the evidence before me I find that the marriage broke down permanently in March 2004 when the appellant’s husband sought a divorce. The divorce was granted according to Muslim traditions in Pakistan on 29th July 2004. I do not for the reasons I have already given above believe that the appellant was unaware that her marriage was dissolved in July 2004. I am not satisfied to the appropriate standard of proof that the breakdown of the marriage occurred due to domestic violence. I find as a fact the breakdown occurred because of disagreement about the dowry paid or sufficiency of the dowry.”
[10]The applicant understandably picked up on that last point in her grounds of appeal to make the submission which I have considered, that the tribunal had misunderstood the position because it was the arguments about the dowry which led to the violence, and it is submitted that, once the tribunal has found that the dowry was the cause of the problem, then it readily follows that arguments about the dowry led to violence.[11]It was speculation by the tribunal that the dowry was the cause of the breakdown. Matters may have been more complex than that; but in my judgment it does not give rise to a arguable ground of appeal because, giving, as one is able to, a broad definition of domestic violence, in these circumstances it would need to be shown that arguments about the dowry, in which her husband took her part to some extent, had caused violence. For the reasons given by the tribunal, it appears to me that they were entitled to find that there was no violence, and arguments about the dowry, in themselves, do not demonstrate an error of law.[12]The applicant, in her oral submissions, has referred to the culture clash of which she has been a victim. I follow and sympathize with that. She said that her family in Pakistan are saying that she must make her marriage work. Clearly, it is impossible for her to do that. She says that she has been honest about other matters, as the tribunal has found, and there was no reason to doubt her dishonesty on the question of violence. Her husband had abused her and had been violent to her.[13]I am not able to accept that there is an arguable ground of appeal on the basis of those submissions. I have referred to parts of the tribunal’s determination. I have referred to the care with which they approached this question and the evidence before them. Reasons are given for the adverse finding and I have referred to some of them. In my judgment, there is no real prospect that, upon further consideration, this court would grant relief to the applicant.[14]I mention two other points. The first is on the medical evidence. There was a short statement from Mr Malik before the tribunal and I have referred to that. That is not commented upon in the tribunal’s decision. It is not clear from the adjudication whether or not that point was pursued on the applicant’s behalf by her legal representative, Mr Bajwa. It would not surprise me if it was not, in view of the firm findings about Mr Malik, made at the previous hearing before the tribunal.[15]As to articles 3 and 8, these were considered by the tribunal. They have not in my judgment made any error of law in their consideration. The applicant is an educated woman and the tribunal found that “it would not be difficult for her to access help with looking for employment in Pakistan” (paragraph 57). There is no real prospect of success on the convention either. For those reasons I would refuse this application.[16]I, too, consider that an appeal would have no realistic prospect of success. That is sufficient to explain why permission to appeal has to be refused. But, since my reasons for coming to that view are not quite the same as those of my Lord, I am going to take a moment or two to explain what they are. The applicant came here in December 2003 to join her husband after a marriage and a very brief period of cohabitation in Pakistan. He failed to meet her at the airport. She had to make her own arrangements for accommodation, and when she went to see him in the following January in Leicester, where he lived, he turned out to have a first wife and children by her. He also had his mother living with him, who made the applicant thoroughly unwelcome and demanded more dowry. The husband, trapped in the situation partly of his own making and partly of his mother’s, became violent towards the applicant, albeit on occasions he took the opportunity of her visits to have marital relations with her. There appears to me to be nothing whatever incredible about such an account, but the immigration judge disbelieved the applicant because he did not accept that she had not learned until 2007 of the talaq that her husband turned out to have obtained in Pakistan in March 2004.[17]Having disbelieved her about that, for reasons that I find impenetrable, he decided that it was not credible that, knowing of the talaq, she would have continued to visit her husband. If, of course, she did not know of it then there was nothing incredible about her attempting to sustain her marriage. But because the applicant had no independent evidence of domestic violence, everything turned upon her own credibility. The immigration judge then made a finding that it was incredible that, having had sex with her on the occasions of her visits, her husband would turn violently on her when his mother turned up demanding more dowry. Again, no reason is given by the immigration judge except that he found this incredible. I have to say that, if this case turned on nothing else, I would have been prepared to give permission to appeal on the grounds that it is not open to a fact-finder simply to dismiss as incredible things which appear credible and which he gives no reason for disbelieving.[18]The problem, however, is that in order to get within rule 287A of the immigration rules the applicant has to demonstrate that she had, at the point of time when she entered this country, a subsisting marriage, and that among other things it was caused permanently to break down within two years as a result of domestic violence. Although it appears to have been accepted that this was a subsisting marriage, if the matter came before this court I think this would come strongly into question, and it would be very difficult to show that it was a subsisting marriage. On the applicant’s evidence, taking it as entirely truthful and credible, her husband had abandoned her by the time she arrived in this country, and nothing that happened thereafter amounted to the restoration of a marital relationship. That seems to me to be one insuperable difficulty. The other is that it has to have been domestic violence which caused the marriage to break down. On the applicant’s account, there was undoubtedly domestic violence but the cause of the breakdown, it seems to me on her account, was not that violence; it was the demand of the mother-in-law for more dowry and the husband’s unwillingness to accept her into his household, trapped as he now was between his mother and an already contracted marriage with children. So the domestic violence, it seems to me, was on the applicant’s own account a consequence of the breakdown and not the cause of it. The cause of it was the factors that I have described.[19]For those reasons, it seems to me that while there may arguably have been a real injustice done to this woman in the disbelief of her account, if we take it at face value, as for present purposes I would be entirely willing to do, it cannot bring her within rule 289A, so that an appeal would be bound to fail. For those reasons, which differ as I say from My Lord’s, I too would refuse permission to appeal.

Order

Application refused