Ishtiaq v Secretary of State for the Home Department [2007] EWCA Civ 386

[2007] EWCA Civ 386Case No C5/2006/1041
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION APPEAL TRIBUNAL
Mr A.L. McGeachy (Senior Immigration Judge), Mrs M. Padfield and Dr C.J. Winstanley
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26 th April 2007
Before
LORD JUSTICE CHADWICKLORD JUSTICE DYSONLORD JUSTICE THOMAS
Between
Ahmed Iram IshtiaqAppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(Transcript of the Handed Down Judgment ofWordWave International LtdA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Andrew Nicol QC & Miss Patel (instructed by Miles Hutchinson & Lithgow) for AppellantJenni Richards (instructed by Treasury Solicitors) for RespondentHearing Hearing dates: 28 March 2006
Judgment

Introduction

[1]This appeal is concerned with the true interpretation of para 289A(iv) of the Immigration Rules HC 395 (“the Rules”). Para 289A is headed “Requirements for indefinite leave to remain in the United Kingdom as the victim of domestic violence”. It provides:
“The requirements to be met by a person who is the victim of domestic violence and who is seeking indefinite leave to remain in the United Kingdom are that the applicant: (i) was admitted to the United Kingdom or given an extension of stay for a period of 2 years as the spouse or civil partner of a person present and settled here; or (ii) was admitted to the United Kingdom or given an extension of stay for a period of 2 years as the unmarried or same sex partner of a person present and settled here; and (iii) the relationship with their spouse, civil partner, unmarried partner or same-sex partner, as appropriate, was subsisting at the beginning of the relevant period of leave or extension of stay referred to in (i) or (ii) above; and (iv) is able to produce such evidence as may be required by the Secretary of State to establish that the relationship was caused to permanently break down before the end of that period as a result of domestic violence.” (i) was admitted to the United Kingdom or given an extension of stay for a period of 2 years as the spouse or civil partner of a person present and settled here; or (ii) was admitted to the United Kingdom or given an extension of stay for a period of 2 years as the unmarried or same sex partner of a person present and settled here; and (iii) the relationship with their spouse, civil partner, unmarried partner or same-sex partner, as appropriate, was subsisting at the beginning of the relevant period of leave or extension of stay referred to in (i) or (ii) above; and (iv) is able to produce such evidence as may be required by the Secretary of State to establish that the relationship was caused to permanently break down before the end of that period as a result of domestic violence.”
[2]Para 289B of the Rules provides that “indefinite leave to remain as the victim of domestic violence may be granted provided that the Secretary of State is satisfied that each of the requirements of paragraph 289A is met”.[3]The appellant is a citizen of Pakistan. She entered the United Kingdom as the wife of a man who was present and settled here and was granted leave to remain until 1 January 2005. On 12 November 2003, she applied for indefinite leave to remain on the basis that her marriage had permanently broken down as a result of domestic violence. She was able to prove that her marriage had permanently broken down as a result of domestic violence, but was unable to do so by producing evidence in the form of one or more of the documents specified by the Secretary of State in section 4 of chapter 8 of the Immigration Directorate Instructions (“IDIs”). IDIs contain guidance to caseworkers as to how they should apply the Rules (including para 289A) when they make decisions in individual cases. The principal question that arises on this appeal is whether it is fatal to an application for indefinite leave to remain under para 289A that an applicant is unable to produce evidence in the form of one or more of the documents specified in section 4 of chapter 8 of the IDIs.[4]By a decision promulgated on 9 March 2006, the Asylum Immigration Tribunal (“AIT”) held that “such evidence as may be required by the Secretary of State” within the meaning of para 289A(iv) is a reference to evidence in the form of documents specified by section 4 of chapter 8 of the IDIs. Since the appellant had not produced any such evidence, she had not satisfied the requirements of para 289A(iv). Accordingly, she was not entitled to indefinite leave to remain, although, having heard the appellant give evidence, the immigration judge had found as a fact that her marriage had broken down permanently before the end of the 2 year “probationary” period as a result of domestic violence.[5]On 10 July 2006, a differently constituted AIT reached a different conclusion on the same question of interpretation in JL (Domestic violence: evidence and procedure) India [2006] UKAIT 58. In that case, the AIT held, for reasons to which it will be necessary to refer later in this judgment, that para 289A(iv) did not preclude the decision-maker or the appellate body from making a finding of domestic violence on all the available evidence. We have been told that tribunals are applying the reasoning of that AIT in domestic violence cases. Mr Andrew Nicol QC relies on the reasoning of the AIT in JL’s case as part of his argument in the present appeal. We note that permission to appeal was given by Richards LJ in the present case in part, at least, because the conflict between the two decisions needs to be resolved. The relevant statutory provisions[6]Before I come to the decisions in the present case, I need to refer to the relevant statutory provisions. The Immigration Rules are made by the Secretary of State pursuant to section 3(2) of the Immigration Act 1971 (“the 1971 Act”) which provides:
“The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; and section 1(4) above shall not be taken to require uniform provision to be made by the rules as regards admission of persons for a purpose or in a capacity specified in section 1(4)…..”
[7]Section 1(4) of the 1971 Act provides:
“The rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right to abode shall include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules…) persons coming for the purpose of taking employment, or for the purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom.”
[8]Section 31A of the 1971 Act provides: “(1) If a form is prescribed for a particular kind of application under this Act, any application of that kind must be made in the prescribed form. (2) If procedural or other steps are prescribed in relation to a particular kind of application under this Act, those steps must be taken in respect of any application of that kind. (3) “Prescribed” means prescribed in regulation made by the Secretary of State. (3A) Regulations under this section may provide that a failure to comply with a specified requirement of the regulation-(a) invalidates an application,(b) does not invalidate an application, or(c) invalidates an application in specified circumstances (which may be described wholly or partly by reference to action by the applicant, the Secretary of State, an immigration officer or another person). (4) The power to make regulations under this section is exercisable by statutory instrument. (5) Any such statutory instrument shall be subject to annulment in pursuance of a resolution of either House of Parliament.” (a) invalidates an application, (b) does not invalidate an application, or (c) invalidates an application in specified circumstances (which may be described wholly or partly by reference to action by the applicant, the Secretary of State, an immigration officer or another person).[9]The applicable regulations for the purposes of these appeals are the Immigration (Leave to Remain) (Prescribed Forms and Procedures) Regulations 2003 (SI 2003/1712) (“the 2003 Regulations”). Regulation 9 provides:
“(1) The form set out in Schedule 7 is hereby prescribed for an application for indefinite leave to remain in the United Kingdom: as a work permit holder, … … … …. (i) as a victim of domestic violence, for the purposes of the immigration rules.” for the purposes of the immigration rules.”
[10]Regulations 11 and 12 set out the “Prescribed Procedures”: “11. The following procedures are hereby prescribed in relation to an application for which a form is prescribed in any of regulation 3 to 9 above:(a) the form shall be signed and dated by the applicant…..;(b) the application shall be accompanied by such documents and photographs as specified in the form; and(c) the application shall be: (i) sent by prepaid post to the Immigration and Nationality Directorate of the Home Office, or (ii) submitted in person at a Public Enquiry Office of the Immigration and Nationality Directorate of the Home Office.[12]– (1) A failure to comply with any of the requirements of regulation 11(a) or (b) above to any extent will only invalidate an application if: (a) the applicant does not provide, when making the application, an explanation for the failure which the Secretary of State considers to be satisfactory, (b) the Secretary of State notifies the applicant, or the person who appears to the Secretary of State to represent the applicant, of the failure within 21 days of the date on which the application is made, and (c) the applicant does not comply with the requirements within a reasonable time, and in any event within 28 days, of being notified by the Secretary of State for the failure.” (i) sent by prepaid post to the Immigration and Nationality Directorate of the Home Office, or (ii) submitted in person at a Public Enquiry Office of the Immigration and Nationality Directorate of the Home Office.[11]Section 85(4) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) provides:
“(4) On an appeal under section 82(1) or 83(2) against a decision the Tribunal may consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision.”
[12]Section 86 of the 2002 Act provides so far as material: “(3) The Tribunal must allow the appeal in so far as it thinks that- …. (b) a discretion exercised in making a decision against which an appeal is brought or is treated as being brought should have been exercised differently. …… (6) Refusal to depart from or to authorise departure from immigration rules is not the exercise of a discretion for the purposes of subsection (3)(b)”. …. (b) a discretion exercised in making a decision against which an appeal is brought or is treated as being brought should have been exercised differently. Section 4 of chapter 8 of the IDIs[13]It is necessary to refer to section 4 of chapter 8 of the Immigration Directorate Instructions (“IDIs”) in a little detail. As I have already said, the IDIs are instructions to caseworkers who have to make immigration decisions in individual cases. Section 4 of chapter 8 deals with victims of domestic violence. Other chapters deal with other kinds of immigration decisions. On any view, they provide valuable guidance to the caseworkers who are charged with the sensitive and difficult task of making decisions in individual cases.[14]The introduction to section 4 of chapter 8 states that an applicant who has limited leave to enter or remain in the United Kingdom as the spouse of a British citizen or person present and settled in this country and whose marriage breaks down during the “probationary period” as a result of domestic violence may be granted indefinite leave to remain under para 289A “provided that the domestic violence occurred during the probationary period while the relationship was subsisting and the applicant is able to provide satisfactory evidence that domestic violence has taken place”. Domestic violence is defined as “any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults who are or have been intimate partners or family members, regardless of gender or sexuality”.[15]Para 2.1 of the document identifies the “main points on which a caseworker needs to be satisfied in cases of domestic violence”. These included that “there is proof that domestic violence took place”.[16]Para 3 is headed “Standard of Proof”. Its states: “In order to establish a claim of domestic violence, evidence should be sought in the form of:(i) an injunction, non-molestation order or other protection order made against the sponsor (but not an ex parte or interim order);(ii) a relevant court conviction against the sponsor; or(iii) full details of a relevant police caution issued against the sponsor”. (i) an injunction, non-molestation order or other protection order made against the sponsor (but not an ex parte or interim order); (ii) a relevant court conviction against the sponsor; or (iii) full details of a relevant police caution issued against the sponsor”.[17]Para 3.1 is headed “Other acceptable proof of domestic violence”. It states: “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 thefollowing:(i) a medical report from a hospital doctor confirming that the applicant has injuries consistent with being a victim of domestic violence; OR a letter from a GMC registered family practitioner who has examined the applicant and is satisfied that the injuries are consistent with being a victim of domestic violence;(ii) an undertaking given to a court that the perpetrator of the violence will not approach the victim;(iii) a police report confirming attendance at the home of the applicant as a result of a domestic violence incident;(iv) a letter from a social services department confirming its involvement in connection with domestic violence;(v) a letter of support or report from a domestic violence support organisation which is identified in Annex AB. This evidence may relate to one incident or a number of incidents and should confirm that domestic violence has taken place. Witness statements from friends or family and letters from official sources that simply relay unfounded reports by the applicant but do not confirm the incident should not be accepted. Where two pieces of evidence have been supplied but concerns remain caseworkers may contact the applicant to ask for further information”. (i) a medical report from a hospital doctor confirming that the applicant has injuries consistent with being a victim of domestic violence; OR a letter from a GMC registered family practitioner who has examined the applicant and is satisfied that the injuries are consistent with being a victim of domestic violence; (ii) an undertaking given to a court that the perpetrator of the violence will not approach the victim; (iii) a police report confirming attendance at the home of the applicant as a result of a domestic violence incident; (iv) a letter from a social services department confirming its involvement in connection with domestic violence; (v) a letter of support or report from a domestic violence support organisation which is identified in Annex AB. The facts[18]As I have said, the appellant was granted leave to enter until 1 January 2005. On 12 November 2003, through her solicitors she applied for indefinite leave to remain on the grounds that she was a victim of domestic violence. On 5 December 2003, the Secretary of State replied asking for evidence in the form of an injunction, a conviction or a police caution or another form which reflected the contents of section 4 of chapter 8 of the IDIs. No such evidence was provided. There was no independent evidence in support of her claim. Her application was refused on 23 January 2004.[19]She appealed. She gave oral evidence before the immigration judge. She said that she went to live with her husband’s family in April 2003. She was not allowed to make telephone calls. She was not allowed to see or have contact with members of her own family. During the time when she lived with her husband, she could recall only two occasions when she was allowed out of the house. She was subjected to abuse and violence from the moment she arrived in this country. This took the form of slaps, her hair being pulled and kicks. Her husband told her that if she ever left the house or attempted to contact her family, he would inform the immigration authorities and she would be locked up.[20]On the evening of 19 September 2003, she was beaten by her husband. Early the following morning, she was pushed out of the house in her nightclothes. She had no money. One of her sisters took her to Middlesborough where she remained until February 2004. She then went to London to live with a cousin for 4 months. From there she went to live with another sister in Sheffield, but she ran away after being subjected to violence by her brother-in-law. She went to an Asian women’s resource centre and at the time of the appeal was living in a hostel supported by Social Services.[21]She started divorce proceedings. In her petition she set out her allegations of violence and ill-treatment. The husband admitted these allegations and did not defend the petition. She was granted a decree absolute on 24 August 2004.[22]On 26 August 2005, her appeal was allowed by immigration judge Mr Graham Campbell. He found her to be a credible witness and he accepted the account she had given of her life in the United Kingdom since her arrival. At para 46, he said “Applying the relevant law to the established facts I find that the Appellant has been discriminated against in the working of the Respondent’s policy. If the policy is to make any sense then it has to set requirements that can be sensibly met by applicants. In the present case it is my judgment that with regard to Asian women this policy sets impossible or extremely difficult requirements that effectively stifle the very relief that the Immigration rules seek to provide. For rules to be effective the policy underpinning the administration of those rules and the requirements placed upon applicants must strive to work fairly and effectively for all applicants, not just those that can communicate effectively in English or those whose cultural backgrounds free them from the constraints suffered by women in other more restrictive cultures.”[23]He then considered the issues that arose under the European Convention of Human Rights (“the Convention”). At para 48, he said:
“….. In the present case a simple application of the rules on the policy set out above would effectively mean that the Appellant would never have an argument for review under Article 8, there would be nothing exceptional; she would simply have failed to comply with the Immigration rules. The Appellant here only finds herself outside the Immigration rules by virtue of her inability to comply with the requirements of a policy that presupposes an adequate command of English. In the present case I find that the requirements of the rules breaches the Appellant’s protected rights under Article 14 in the sense that the rules discriminate against an Asian woman in the Appellants position.”
[24]The matter was reconsidered by the AIT (Mr A L McGeachy (Senior Immigration Judge), Mrs M Padfield and Dr C J Winstanley). By a determination promulgated on 9 March 2006, they held that the decision of the Immigration Judge was wrong and dismissed the appeal both on Immigration and human rights grounds.[25]The tribunal noted that the immigration judge did not appear to have addressed his mind to the requirements of para 289A(iv) or to have explained why those requirements should be ignored. They said at para 13:
“It appears to be the fact that he considered that he was entitled to ignore the rules and the policy because he felt that this appellant was discriminated against”
. The tribunal said that it was not for an immigration judge to re-write the rules because he considered them to be unfair or to the detriment of a particular group. The rules required evidence to be produced as required by the Secretary of State. That evidence had not been produced since it did not exist. The immigration judge should, therefore, have dismissed the appeal. The issues[26]The first issue is whether upon its true construction para 289A(iv) confers a discretion on the Secretary of State(a) to decide what evidence to require in the individual case or(b) to prescribe, by way of general instruction to caseworkers, the types of evidence which they must require in individual cases. Mr Nicol contends for (a); Miss Richards for (b). It is common ground that, if Mr Nicol is right, the individual caseworker’s exercise of discretion is amenable to appeal under section 86(3)(b) of the 2002 Act and that the AIT’s decision must be quashed. The second and third issues arise if Miss Richards is right on the first issue. The second issue is whether the AIT’s reasoning in JL’s case is correct. The third issue is whether the appeal should be allowed on the grounds that the decision to refuse the appellant’s claim constituted discrimination contrary to article 14 of the Convention in the treatment of her rights under article 8. The first issue: the proper construction of para 289A(iv)[27]Miss Richards submits that the words “such evidence as may be required by the Secretary of State” are part of the requirements that have to be met by a person who is seeking indefinite leave to remain under para 289A. Sub-paragraph (iv) gives the Secretary of State the power to prescribe the nature and form of the evidence that must be produced to a caseworker if an applicant is to satisfy the requirement of proving that the relationship has permanently broken down as a result of domestic violence. It is an essential requirement that the evidence produced is that prescribed as necessary by the Secretary of State. If it had been intended to provide no more than that the applicant is required to produce such evidence as the caseworker considers necessary in the individual case, it would have been unnecessary to include the words “such evidence as may be required by the Secretary of State”. These words would have added nothing, since it goes without saying that, if an applicant has to prove something to the satisfaction of the decision-maker (as is required by para 289B), he or she must produce such evidence as the decision-maker considers necessary. It is unnecessary to spell this out in a rule. If, however, it is intended by way of a general requirement to prescribe the evidence which must be produced if an application is to succeed, then that must be specified in a rule. Miss Richards submits that this is what has been done in para 289A(iv).[28]She submits that there are good policy reasons why the Secretary of State would wish to prescribe the type of evidence that must be produced as a condition of proving permanent breakdown as a result of domestic violence. She put it this way in her skeleton argument:
“There are, in the Secretary of State’s judgment, clear policy justifications for these requirements. The domestic violence provisions exempt victims from the requirement to live in a subsisting relationship with the other party for two years and to intend to do so permanently before being granted indefinite leave to remain. However, it is easy for people to allege falsely that they have suffered domestic violence in order to obtain indefinite leave to remain. Such an allegation undermines immigration control and can seriously damage the reputation of the former partner as well as causing him or her considerable distress. In order to safeguard these provisions from abuse, the Secretary of State requires allegations of domestic violence to be supported by specific evidence, as listed in the IDIs, and not simply by the testimony of the applicant to the caseworker or the immigration judge. This requirement strikes the balance between ensuring that genuine victims of violence are helped and making it more difficult for false allegations to be advanced. The list of acceptable evidence given in the IDI is quite flexible, including police reports, medical reports, letters of support from appropriate domestic violence support organisations as well as court injunctions or convictions. In the Secretary of State’s judgment and experience, a person who has genuinely been the victim of domestic violence can usually provide the relevant evidence without difficulty. The particular types of evidence that will suffice have been carefully chosen. It is important to have rules that are capable of being applied easily and consistently, which in turn promotes transparent and sound decision-making and provides for a system that can be readily operated. Furthermore neither those who determine immigration applications nor immigration judges have special expertise in assessing whether a relationship has broken down because of domestic violence, as opposed to those domestic authorities and agencies who are skilled in making such assessments.”
[29]Miss Richards submits that those who cannot produce any of the evidence specified in the IDI, but who can prove that they are the victims of domestic violence by other means (for example, by giving a credible oral account), are not without remedy. The Secretary of State can exercise his discretion to grant leave to remain outside the Rules, and that exercise of discretion is susceptible to challenge by judicial review.[30]I cannot accept Miss Richards’ construction of para 289A(iv). The general meaning and effect of the relevant rules is clear. Spouses and partners who have been given leave to enter for two years (“the probationary period”) are normally granted indefinite leave to remain after the expiry of the probationary period. The victim is also entitled to indefinite leave to remain where, before the expiry of the probationary period, a relationship breaks down permanently as a result of domestic violence. This is not a concession which should be construed strictly against applicants. It is an important component of the set of rules which govern the grant of indefinite leave to remain to spouses and partners. The policy which underlies para 289A(iv) is clear enough. Spouses and partners who are the victims of domestic violence should not feel constrained to remain in an abusive relationship for two years solely in order to qualify for indefinite leave to remain.[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.[32]If it had been intended that applicants could only prove that they have been the victims of domestic violence by producing documents of the kind specified in the IDI, this could have been achieved easily enough in the rule. One way of doing it would have been to specify the necessary documents in the rule itself. This is the technique that was adopted in a different context in section 88 of the 2002 Act, which provides that a person may not appeal against an immigration decision which is taken on the grounds that he (or a person of whom he is a dependant) does not have an “immigration document of a particular kind”. Section 88(3) defines “immigration document”.[33]Another way of doing it would have been to state in terms that an application may succeed only if the applicant produces one or more of the documents specified in the IDIs or similar instructions issued by the Secretary of State to caseworkers. In that way, it would have been clear that the decision as to what kind of evidence to require was taken out of the hands of the caseworkers. If it had been done in either of these ways, Parliament would have had the opportunity to consider the point when scrutinising the Rules. It might not have approved a rule which took away from the caseworker the discretion to decide in the particular case what evidence to require for the purposes of para 289A(iv), a discretion whose exercise would be susceptible to review on appeal: see section 86(3)(b) of the 2002 Act. The exercise of discretion in formulating policy in the shape of instructions such as the IDIs is not susceptible to appeal, although I accept that it could be the subject of challenge by way of judicial review.[34]In view of the purpose of para 289A, and since subparagraph (iv) does not clearly provide that an applicant may only prove the necessary facts by producing evidence of the kind prescribed by the Secretary of State in instructions to caseworkers, I would hold that it does not have that effect.[35]Miss Richards’ point on surplusage carries does not carry great weight, as arguments based on surplusage seldom do: see per Lord Hoffmann in Walker (Inspector of Taxes) v Centaur Clothes Group Ltd [2000] 1 WLR 799, 805D. In my judgment, the reference to “the Secretary of State” is not a reference to the Secretary of State in his policy-making role. It is a reference to the Secretary of State in his role as decision-maker in the individual case. The Rules are replete with references to the “Secretary of State” where it is clear from the context that they are references to him in his decision-making role in the individual case. A good example is para 289B which I have set out at para 2 above.[36]In my judgment, the policy considerations relied on by Miss Richards do not shed any light on the true construction of para 289A(iv). I can readily accept that it is easy for people to make false allegations that they are the victims of domestic violence. But it does not follow that it must have been intended effectively to remove the fact-finding function from the caseworker altogether. Caseworkers are often charged with a difficult fact-finding exercise. That is their daily fare. They frequently have to deal with false allegations in diverse contexts. One way of assisting them with their difficult function is to provide them with proper training. Immigration judges face similar problems. But none of this is a reason for leaning in favour of an interpretation of the Rules which curtails their fact-finding function or otherwise prescribes how it should be conducted.[37]Nor do I accept that, on Miss Richards’ argument, the fact that the Secretary of State can exercise his discretion to grant indefinite leave to remain outside the Rules sheds any light on the true construction of para 289A(iv).[38]For the reasons that I have given, I would hold that para 289A(iv) gives the caseworker a discretion to decide what evidence to require the applicant to produce in the individual case. In exercising that discretion, I would expect the caseworker usually to start by applying the guidance given in section 4 of chapter 8 of the IDIs. But if the applicant is unable to produce evidence in accordance with that guidance, it would seem to me that the caseworker should seek an explanation for his or her inability to do so. If the applicant provides a reasonable explanation for her inability to produce such evidence, then the caseworker should give the applicant the opportunity to produce such other relevant evidence as she wishes to produce.[39]So far, I have proceeded on the basis (which seems to have been accepted by all the AITs who have considered the point) that section 4 of chapter 8 of the IDIs prescribes inflexibly the way in which an applicant can prove his or her case by limiting the types of proof to the production of one or more of the documents specified. For the reasons that I have given, if it purports to have that effect, it cannot do so. It cannot take away from the decision-maker the discretion conferred by para 289A(iv) of the Rules to decide what evidence to require from the applicant in the individual case.[40]I am not, however, persuaded that section 4 of chapter 8 is prescriptive in the way that has been assumed. It seems to me that the document is ambivalent in this respect. The introduction speaks of the applicant providing “satisfactory evidence”. In paragraph 3 of the IDI, it is said that evidence “should” be sought in one of three forms. The word “should” is less strong than “must”. In para 3.1, the document states that, where it is not possible to obtain police or other court evidence confirmation of domestic violence, acceptable evidence “may” take the form of one or more of the documents that are then specified. But the text goes on to say that witness statements from friends or family and letters from official sources “that simply relay unfounded reports by the applicant but do not confirm the incident should not be accepted”. This implies that such witness statements or letters from other sources that relay well-founded reports by the applicant may be accepted. Two points arise here. First, the IDI contemplates that other documents than those specified may be relied on. Secondly, it is difficult to see how the caseworker can always, or even usually, decide whether a report by the applicant is unfounded without interviewing the applicant and asking questions about the alleged domestic violence.[41]If it were necessary to decide the point, I would hold that the IDI is not inflexibly prescriptive. It provides strong guidance as to what evidence caseworkers should require to be produced, but no more than that. I should add that it is obviously highly desirable that caseworkers should be given clear guidance as to how they should perform the difficult tasks that they have to perform. But for the reasons that I have given, I do not consider that they can be given inflexible instructions which have the effect of depriving them of the right to consider what evidence they should require when they consider the question of domestic violence in an individual case.[42]It follows from what I have said that in my view what the AIT said in RH (Para 289A/HC395-no discretion) Bangladesh [2006] UKAIT 43 at para 16 was wrong. They said:
“Mr Pipe referred first of all to the provisions of paragraph 289A(iv). He argued that the words ‘may require’ in relation to the evidence that an applicant needs to produce to the Secretary of State clearly gives a discretion. However, he had to agree that the effect of the rule is to enable the respondent to specify what evidence is to be produced before a decision maker can be satisfied that the appellant’s relationship was caused to permanently break down as a result of domestic violence. The respondent has so specified and he has done so in the IDI. It would not be practicable or fair for the respondent to have different provisions in every case. It is entirely reasonable for him to have set the requirements out in IDI. It is true that they have not been incorporated in a rule. The use of the word ‘may’ is clearly intended to enable the Respondent to make such provisions, and he has done so. That was the extent of the discretion imposed by the rule and it is not one that is reviewable by an Immigration Judge. ”
[43]The consequence of what I have said in relation to the first issue is that in my view the decision of the AIT cannot stand. Miss Richards submits that, rather than restore the decision of the immigration judge, we should remit the matter to the AIT for further consideration. She submits that the immigration judge did not apply section 86(3) of the 2002 Act. In particular, he did not give any weight to the policy considerations relied on by the Secretary of State on this appeal (see para 28 above). It is true that the immigration judge did not decide the appeal by purporting to review an exercise of discretion. That is no doubt because the caseworker himself did not purport to exercise a discretion, but applied section 4 of chapter 8 of the IDIs.[44]In my judgment, the correct order to make in this case is to allow the appeal and restore the decision of the immigration judge. I do not consider that the exercise of discretion calls for a weighing in the balance of the policy considerations relied on by the Secretary of State. Those considerations are relied on in support of the construction of para 289A(iv) advanced on his behalf. I do not see how they have a part to play in deciding how the discretion should be exercised in an individual case. Since the immigration judge decided to hear evidence from the appellant and he found her account to be credible, it seems to me inevitable that his decision must be restored. The second issue: the reasoning of the AIT in JL (Domestic Violence: evidence and procedure) India [2006] UKAIT 58[45]It is desirable that we should consider this decision because, as I have said, it is being followed by AITs in domestic violence cases. It is clearly an important decision. It is closely reasoned and carefully expressed as one would expect from such an experienced tribunal (Mr CMG Ockelton, Deputy President of the AIT, Senior Immigration Judge Grubb and Immigration Judge Baker).[46]The facts in outline were that JL applied for indefinite leave to remain as a victim of domestic violence. She was a citizen of India. The application was refused because she had failed to produce evidence of the type required by section 4 of chapter 8 of the IDI. She gave evidence before the immigration judge who allowed her appeal. He found her to be a credible witness and that domestic violence had taken place. He accepted that, apart from a report to the police after she had left her husband, she had been unable because of her circumstances to report the matter to a doctor, general practitioner or indeed the police: she had been treated as a “slave” by her husband. He found that she met the requirements of para 289A of the Rules.[47]The Secretary of State obtained a reconsideration of the decision. The AIT affirmed the immigration judge’s decision. They said that the notion that any evidence available to the determination of the appeal, however independent and persuasive, can be excluded from the decision-making and appellate process by the Secretary of State simply not “requiring” it was “troubling”. Where the respondent does not challenge the account of domestic violence, the notion “moves from the troubling to the absurd” (para 39). For that reason, it was extremely unlikely that Parliament could have intended “that the respondent was entitled to say (as, in effect, he does in this case): “I do not deny that you have been the victim of domestic violence; you may well have been; but because you do not prove the domestic violence in the way that I require of you, the Judge is required to find that it did not happen”.[48]They then identified 4 factors which led them to conclude that an immigration judge is entitled to make a finding of domestic violence on all the evidence available to him, even if the evidence “required” by the Secretary of State had not been produced. First, the tribunal is an independent judicial body, and the likelihood that Parliament intended one of the parties to be in a position to control the party’s access to independent fact-finding by the tribunal was “very low indeed” (para 41).[49]Secondly, the Rules are addressed to those who make immigration decisions, not to the tribunal evaluating such decisions subsequently. A rule such as para 289A, which is so obviously directed to the process for applications, is unlikely also to be intended to regulate the substantive determination of an appeal before the independent tribunal.[50]They said that the first two factors were of themselves no more than “pointers to the direction in which the other two considerations can take us. They could not of themselves enable us to say that, in a case like the present, the Immigration Judge was entitled to allow the appeal in the absence of the “required” evidence”.[51]Thirdly, para 289A(iv) is ultra vires the 1971 Act if interpreted in the way suggested by the Secretary of State. The fact that Parliament regarded it as necessary to add section 31A would appear to be an acknowledgement that the unamended provisions of the 1971 Act gave no power to prescribe forms or procedures as part of the Rules. Section 31A is not a general power to make rules in an area in which rules could not previously have been made. It is a power to impose procedural requirements in respect of applications. Para 289A(iv) is valid in so far as it summarises the impact of the 2003 Regulations. But the 2003 Regulations apply only to the process for making applications and for determining whether an application is valid or invalid. They have no bearing on whether a valid application should be granted or refused. It follows that the provisions of para 289A which refer to the need to provide the evidence “required” by the respondent apply only within the parameters of section 31A and the 2003 Regulations. Once a valid application has been made, the role of the “requirement” ceases and, in accordance with the power to make them under section 3(2), the provisions of para 289A should be read without reference to the requirement. In other words, for the purposes of an appeal, para 289A(iv) should be read down as if the words “as may be required by the Secretary of State” were omitted.[52]Fourthly, the AIT relied on section 85(4) of the 2002 Act and the words “the substance of the decision”. In the decision under para 289A, the “substance” is the domestic violence, not the question whether the appellant has produced the evidence “required”. Section 85(4) thus appears to give the AIT the power to consider any relevant evidence relating to the domestic violence.[53]As I have said, Mr Nicol submits that the AIT’s analysis in JL’s case was correct for the reasons given by them. I would reject this reasoning largely for the reasons given by Miss Richards in her skeleton argument. I shall concentrate on the AIT’s third and fourth factors, since these are the essential reasons for their decision.[54]In my view, they erred in their exposition of the relationship between para 289A of the Rules and sections 3(2) and 31A of the 1971 Act. All of the Rules are made by the Secretary of State pursuant to section 3(2). There is no other enabling provision for the making of the Rules. Para 289A was not made pursuant to section 31A. The AIT says that the power to prescribe forms and procedures in relation to applications under the 1971 Act only exists under section 31A, and that since para 289A “purports to regulate procedure”, it could only do so by reference to the power given by section 31A and exercised by means of the 2003 Regulations.[55]I do not accept that the introduction by Parliament of an express power to make regulations in respect of forms and procedures is an acknowledgement that the Secretary of State had no power to make rules in relation to forms and procedures under section 3(2). The language of section 3(2), (the making of rules “as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter”), is wide enough to encompass the making of rules prescribing the requirements to be met for a successful application for leave to enter to leave to remain. In my judgment, section 3(2), which has been in the statute since it first came into force on 1 January 1973, should be construed without reference to section 31A (which for relevant purposes came into force on 22 May 2000).[56]In any event, para 289A(iv) does not purport to regulate forms and procedures in relation to applications under the 1971 Act. Rather, it prescribes the substantive evidential requirements which must be satisfied if an application for indefinite leave to remain as the victim of domestic violence is to succeed. These requirements are separate from the procedural requirements which must be satisfied under the 2003 Regulations as a condition of a valid application. Para 289A is not concerned with the validity of an application, but rather with its merits.[57]It follows that the AIT were wrong to hold that, if para 289A(iv) were to bear the meaning contended for by the Secretary of State, it would be ultra vires section 3(2) of the 1971 Act. In any event, even if para 289A(iv) were to bear such a meaning, that would not be a reason for “reading down” the provision by omitting the words “to produce such evidence as may be required by the Secretary of State”. These is no rule of interpretation (outside a Convention or EC law context) that permits a court or tribunal to construe a provision which is ultra vires by simply omitting it. The fact that a provision includes words which are ultra vires cannot of itself be a sufficient reason for construing the provision as if they were not there. I would accept that, if a provision has two possible meanings, one of which is ultra vires and the other intra vires, one should seek to adopt the meaning which is intra vires. In the present case, however, on the AIT’s analysis of section 3(2) and 31A of the 1971 Act, the words “to produce such evidence as may be required by the Secretary of State” are ultra vires whichever of the two interpretations of these words (the subject of the first issue) is correct.[58]If para 289A(iv) did bear the meaning contended for by the Secretary of State and if it were ultra vires, the AIT should nevertheless have given it full force and effect. They had no power to declare it to be ultra vires, nor did they purport to do so. But for the reasons I have given in relation to the first issue, I consider that para 289A(iv) does not bear the meaning contended for by the Secretary of State and there was, therefore, no need for the AIT to have recourse to the doctrine of ultra vires.[59]Nor can I accept the other principal reason given by the AIT for their conclusion. I do not consider that section 85(4) of the 2002 Act is of any assistance. If para 289A(iv) bears the meaning contended for by the Secretary of State, then the “substance of the decision” within the meaning of section 85(4) includes the decision whether the applicant has or has not produced such evidence as is prescribed by section 4 of chapter 8 of the IDIs. Indeed, in the present case that was the only substantive decision that was in issue, since it was not in dispute (at any rate at the appellate stage) that the appellant had been the victim of domestic violence.[60]Section 85(4) permits the AIT in an appropriate case to consider evidence about any matter which is relevant to the substance of the decision. It does not, however, permit the AIT to disregard the contents of the Rules or widen the scope of its role beyond a consideration of whether the decision of the Secretary of State was taken in accordance with the Rules or in accordance with the law pursuant to section 84. I should add that it would be unfortunate if the solution lay in section 85(4), since that would be irrelevant at the decision-making stage. It is not the purpose of section 85(4) to allow an appellant to produce before the AIT evidence which he or she is not permitted by the Rules to produce to the original decision-maker. Its purpose is to enable an appellant to produce evidence which was not, but which could have been, produced before the decision-maker.[61]But for the reasons already given in relation to the first issue, there was an altogether simpler route to the conclusion that the AIT wished to achieve in JL’s case, that para 289A(iv) does not bear the meaning for which the Secretary of State contends. The third issue: the articles 8 and 14 of the Convention[62]In view of my decision on the first issue, it is unnecessary to decide the third issue. Whereas it was desirable that I should express my views on the second issue because of the importance of the decision in JL’s case, there is no similar imperative which demands that we address the third issue. Overall conclusion[63]For the reasons given in relation to the first issue, I would allow this appeal and restore the decision of the immigration judge. Lord Justice Thomas: I agree. Lord Justice Chadwick: I also agree.

Cited in 25 later judgments

and 16 more of the most senior