Balakoohi, R (on the application of) v Secretary of State for the Home Department [2012] EWHC 1439 (Admin)

Case No CO/5575/2010

[2012] EWHC 1439 (Admin)

IN THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 1 June 2012

Before: His Honour Judge Anthony Thornton QC

Sitting as a Judge of the High Court

Between

R (on the application of)Claimant

Hadis BalakoohiClaimant

Secretary of State for the Home DepartmentDefendant

Ms Claire Soltani (solicitor-advocate, Iris Law Firm) appeared for Claimant

Ms Katherine Olley (instructed by the Treasury Solicitor) appeared for Defendant

Hearing Hearing date: 1 March 2012

JUDGMENT

HH Judge Anthony Thornton QC:

Introduction

[1]Ms Hadis Balakoohi (“HB”) seeks judicial review of the decision of the Secretary of State for the Home Department (“SSHB”) dated 14 September 2010 refusing her application under paragraph 289A of the Immigration Rules (“IRs”) for indefinite leave to remain (“ILR”) on the grounds that her husband’s domestic violence had caused the breakdown of her marriage.

[2]This judicial review application has had a long and troubled procedural history. On behalf of the SSHD, the UK Border Agency (“UKBA”) have issued four relevant decisions relating to the causes of the breakdown of the marriage and when it occurred. These were a curtailment decision dated 20 January 2009 curtailing HB’s Leave to Remain (“LR”) and three subsequent refusal decisions refusing her paragraph 289A application for ILR. The first refusal decision was dated 1 December 2009, the second, dated 11 February 2010, maintained the first refusal decision and the third, dated 14 September 2010, was taken after the UKBA had informed HB’s solicitor in a letter dated 1 September 2010 that both the first and second refusal decisions had been withdrawn.

[3]HB is an Iranian citizen who was born on 12 September 1979. She was granted a student visa on 11 December 2005 and with that visa she entered the United Kingdom on 5 January 2006. On 27 June 2007, she was granted further LR as a student until 31 August 2007 so that she could pursue her higher level studies. Whilst undertaking those studies, HB met a fellow-student, Mr Enayat Malvandy (“EM”) who is also an Iranian citizen. He had previously been granted ILR and, on 27 June 2006, HB applied to the SSHB for a certificate of approval for her intended marriage to EM which was granted to her on 5 March 2007. HB and EM married on 5 May 2007 when HB was 27 and EM was 28. Both were still students when they married. On 27 August 2007, HB applied for LR as the spouse of a person present and settled in the United Kingdom and on 13 September 2007 she was granted LR from 13 September 2007 until 13 September 2009 as EM’s spouse.

[4]The basis of HB’s application to set aside the third refusal decision is that it was unlawful, irrational and procedurally unfair. It is therefore necessary to take account of the preceding history of HB’s application as well as the contents of all the documents that were before the decision-maker when reaching the third refusal decision. My summary of the facts is taken from those documents. On behalf of HB, it was contended that the decision-maker unlawfully failed to take account of materials revealed by those documents, took account of material that should not have been taken account of, failed to follow the relevant guidance to be found in the Immigration Directorate’s Instructions (“IDIs”) and reached a decision that was irrational. Moreover, it was also contended that the decision was procedurally flawed because the decision-maker relied on documents which the SSHD had obtained without informing HB’s solicitor that these had been obtained or giving HB an opportunity to comment on them. Moreover, the decision-maker, who had also decided the second withdrawn refusal decision, was prejudiced and lacking in objectivity when reaching the third decision. On all these grounds, it was contended that the third refusal decision cannot stand and should be set aside. History of HB’s marriage

[5]EM and HB moved from their initial matrimonial home in Waterside Drive, Wheeleys Lane, Birmingham into their second matrimonial home in Fredas Grove, Harborne, Birmingham (“the matrimonial home”) having entered jointly into a one-year assured shorthold tenancy dated 29 February 2008. HB contended that EM started to subject her to domestic violence soon after they had married and that this continued throughout the rest of the time that their marriage subsisted. This domestic violence initially took the form of EM being very jealous, distrustful, overbearing and controlling in his behaviour towards her. By the time they moved into the matrimonial home, he had forced her to terminate her studies and he then prevented her from studying thereafter. He also prevented her from obtaining employment or from engaging in social activities outside the matrimonial home. As part of the jealous and controlling behaviour, he placed sound-recorders in their home to record her movements and to check on her visitors and on any telephone or other conversations that she had in his absence. He meanwhile continued with his course of study and maintained a social life outside the home whilst she was required to stay at home. His excessively controlling behaviour soon gave rise to continuous heated arguments during which he was extremely verbally aggressive and hostile towards her. By July 2008, this verbal aggression was coupled on various occasions with physical violence during which EM frequently hit her. HB remained determined to save her marriage and sought the help of mutual friends to speak to him on her behalf. These friends were unable to persuade EM to moderate his behaviour towards her.

[6]Documents disclosed by the police to the UKBA, which had not been disclosed to or seen by HB until just before the judicial review hearing, reveal that EM had visited the police station on Saturday 2 August 2008 and had asked the police officer at the front desk for advice. He informed the police officer that both HB’s parents were Iranian who had left Iran and had recently arrived in the United Kingdom, had been granted two years LR and were currently and temporarily staying in the matrimonial home. He told the police that he had overheard HB telling her parents that she had only married him to get a visa and that he wanted advice because he was frightened of HB’s father. He also stated that he was going to see a solicitor on the following Monday. The police log records that the police advised him that he should contact the police if he felt frightened in any way. There is no indication in the documents of how much, if any, of the contents of this report of what EM told the police officer HB accepts as being accurate and the police log was not disclosed to HB until it was provided to HB’s solicitor-advocate just before the hearing.

[7]EM signed a solicitor’s authority to act for him dated 20 August 2008 which stated that the solicitors’ firm it related to, Calthorpe, was acting on his behalf in relation to “my immigration matter” and that he was authorising the firm to release any information and documentation “regarding any of my matters”. The documents do not show what immigration matter EM was concerned with at that time and there is no other evidence that he was then concerned with one. This reference to an apparently non-existent immigration matter highlights the particular care that was needed before any reliance could be placed on the reliability of the contents of the letter that EM’s solicitors subsequently sent to the UKBA dated 4 September 2008 since it was at least possible that EM had deliberately misinformed his solicitors that his marriage had broken down and that he had asked for this misinformation to be sent to the UKBA as part of a wider campaign of spousal harassment.

[8]According to HB, the last occasion when HB and EM’s friends attempted to intercede with EM on HB’s behalf was in late August 2008 when two of their mutual friends visited both of them in an attempt to conciliate and to speak to EM about HB’s complaints about his behaviour. During this visit, an argument developed between HB and EM and EM subjected HB to angry threats of violence. HB became so frightened that she called the police. Two police officers then came to the matrimonial home and spoke to all four parties present. The police officers advised HB and EM that they should not spend the night together in the same flat but took no further action and left. EM then left and spent the night with a group of his friends at their flat in Kendal Tower, Malins Road, Birmingham.

[9]According to HB, EM returned to the matrimonial home soon afterwards and their marital relationship resumed. However, a different account was provided by EM’s solicitors in an unsolicited letter that they sent to the Midlands Intelligence Unit of the UKBA dated 4 September 2008. This letter stated that “we act for [EM] in this matter”. The “matter” referred to is not identified and in context could only be referring to the divorce proceedings that the letter stated that EM was intending to initiate “now”. The letter asked that the UKBA should direct all future correspondence to the solicitors. The relevant parts of the letter stated:

“… Since Mrs Balakoohi was granted leave to remain in the UK, the relationship with our client has broken down and they are now living separately. Our client no longer wishes to support Mrs Balooki (sic) and he intends to initiate divorce proceedings now. We request that you note our client’s intentions and we further request that you proceed to curtail Mrs Balakoohi’s leave to remain in the UK. The relationship between our client and his wife is no longer subsisting, and Mrs Balakoohi therefore does not meet the requirements of the immigration rules under which she was granted leave to enter. We urge you to consider curtailing her leave to enter under paragraph 323(ii) with reference to paragraph 281(iii) The suggested grounds for curtailment were that HB had ceased to meet the requirements of the IRs under which her leave to remain had been granted, namely that each of them, being parties to the marriage, intend to live permanently with the other as his or her spouse and the marriage is subsisting. … . Our client is willing to forward a signed statement to you or attend an interview to confirm that the relationship is no longer subsisting. Mrs Balakoohi is currently residing at 74 Fredas Grove, Harborne, Birmingham. We enclose a photograph of her to assist you in your enquiries.”

[10]It would seem from this letter that EM had informed his solicitors before the letter was sent that his marriage to HD had already broken down. It is noticeable that the letter does not provide any explanation from EM as to why or when the marriage had broken down, when he moved out of the matrimonial home, whether he had taken any steps to remove his name from the joint tenancy, how HB was supporting herself and who was paying the rent on the matrimonial home. Moreover, it is now known that divorce proceedings were not started by either EM or HB at any time prior to the third refusal decision that was taken in September 2010. HB was never given an opportunity to comment on the contents of this letter since she didn’t know of its existence until her solicitor received a copy of the first refusal decision dated 1 December 2009 that enclosed a copy of the curtailment decision that in turn refers to this letter. She was only provided with a copy of it when it was disclosed by the SSHD with the acknowledgement of service. The contents of the letter would appear to have no evidential value since they are not supported by any independent corroborative evidence.

[11]During the morning of Sunday 12 October 2008, HB and EM had a ferocious argument during which EM badly beat HB in what she described as being a vicious attack. Whilst being attacked, HB attempted to call the police but whilst she was dialling them, EM grabbed her hand in an attempt to force the phone away from her. She bit his hand in self-defence so as to release the phone to enable her to make her call to the police. EM appeared to calm down and persuaded her not to call the police by volunteering to leave the flat.

[12]Following that second incident, EM left saying that he would spend that night away from the home. However, having left the flat, he went to the police at about 2.00pm and made a complaint against HB that she had assaulted her by biting his hand. He appeared unable to speak English and, before he made his complaint, a Farsi interpreter was called and attended the police station. EM told the police that he was estranged from his wife and had had his hand bitten during an argument at her address. The log states that he stated that “he has reported this three times before” which would appear to mean, in context that EM stated that he had reported his wife three times previously for assaulting him. The police officer taking down his complaint recorded in the Investigation Record that EM had stated that he was staying with friends in a flat in Kendal Towers but that he had had to sleep over for one night, presumably the previous night, because “where he was staying” was full. In the morning, an argument had taken place and HB had become aggressive and had refused to allow him to leave unless he agreed to pay her money. She then grabbed his hand and had bitten it, causing pain. The police officer recorded on the Investigation Record that EM had not suffered any injuries to his hand.

[13]HB was then telephoned by the police and she was asked to go to the police station to provide a statement. The police log shows that the police asked her to attend because they intended to arrest her for suspicion of having committed an assault occasioning actual bodily harm when she arrived at the police station. She attended the police station the following morning and was formally arrested. She then provided the WPC that she spoke to, who was a different police officer to the officer who had previously interviewed EM, with a full explanation of what had happened in the matrimonial home on 12 October 2008 including a full account of EM’s violence towards her. HB accepted that she had bitten EM’s hand but she explained that she had done so in self-defence. She also showed the WPC the injuries and bruises that she said she had suffered during the incident and the WPC advised her to see a doctor about her injuries.

[14]The WPC’s Investigation Record of the interview she had had with HB on 13 October 2008 which was written in longhand and was dated 18 October 2008 stated as follows:

“On Monday 13 October 2008 the offender Hadis Balakoohi attended [indecipherable] Road Police Station and was arrested for this offence. Interview started. She admitted causing the injury however she stated that she acted in ‘self-defence’. On speaking to the Custody Sergeant and the duty inspector the decision was made to ‘NFA’ [no further action]. I have contacted the I.P. [i.e. EM] in this matter and he is happy with the Police [indecipherable] taken Please can this report be filed as the matter has now been concluded.”

Please can this report be filed as the matter has now been concluded.”

[15]According to HB, after that incident and her visit to the police station, she was visited at the matrimonial home by two police officers who advised her that her husband had been told not to enter the matrimonial home without proper prior arrangement and that if he tried to do so, she was to advise the police immediately. The credibility of this evidence has some independent support from the contents of the disclosed police reports. These show that the NFA decision not to proceed further with EM’s complaint and the prosecution of HB was not taken on the day of HB’s visit to the police station. It is likely that HB would have been informed subsequently by the police that the decision had been taken not to proceed with EM’s complaint against her. That decision was only taken after the WPC who had interviewed HB had consulted with the custody sergeant and the duty inspector as can be seen from the WPC’s Investigation Record of her interview with HB. Thus, although there is no direct record that has been disclosed by the police of this visit, it is likely that HB had been informed sometime soon after 13 October 2008 of the NFA decision and that that was conveyed to her by two police officers visiting her at her home. Support for her evidence that this visit had taken place to inform her of the NFA decision and of the advice that had been given to EM not to enter the matrimonial home without prior arrangement is provided by the report of what HB told her GP when she visited the GP on 17 November 2008 for a review of her domestic violence complaint. On that occasion, she is reported to have informed her GP that:

“police supportive but not had any dom violence counselling.”

[16]On 14 October 2008, in the light of the WPC’s advice, HB made the first of two visits to her GP Surgery in Harborne. The computerised notes made by the GP who saw HB recorded the GP’s diagnosis, the patient’s complaint and the GP’s observation and treatment as follows:

“14.10.2008. G.P. Surgery CIE First E: Victim of domestic violence S: alleges husband has been violent to her 2/7 ago. Has been to police. From Iran, living in UK for 3 yrs O: bruise left buttock 5x2.5 cm, purple, bruise 2 x 1.5 cm rt calf same colour, petechial bruise rt triceps laterally 4cm incomplete oval/finger shape.”

S: alleges husband has been violent to her 2/7 ago. Has been to police. From Iran, living in UK for 3 yrs O: bruise left buttock 5x2.5 cm, purple, bruise 2 x 1.5 cm rt calf same colour, petechial bruise rt triceps laterally 4cm incomplete oval/finger shape.”

[17]These notes were supplied to HB’s solicitor following her solicitor’s request for a letter from the GP who had examined HB. They were supplied by the practice under cover of a letter dated 21 August 2009 signed by the practice receptionist/administrator. The letter stated that it was “regarding the domestic violence query” that HB’s solicitor had sent to the practice. The letter responded to this query by enclosing a print-out of “our computer records for this lady” which were in a standard form that is regularly used by GPs when entering their notes on computerised GP examination and treatment records. The text of the print-out shows that the GP’s diagnosis of HB’s complaint was that, in the opinion of the GP, she had suffered domestic violence two days previously and that the intimate examination of her buttock, calf and triceps revealed that that violence had caused bruising to her buttocks and calf and skin bruising to the triceps with the colour, size and shape described. No treatment had been prescribed on that occasion.

[18]On or soon after 16 October 2008, the UKBA received a signed consent form from EM. HB only first learnt of this on receipt of the second refusal decision dated 11 February 2010 which stated:

“Mr Enayat Malvandy signed a consent form on 16 October 2008 confirming that his marriage no longer subsisted with Hadis Balakoohi”

. The only consent form and statement signed by EM that UKBA has disclosed are the authority to act document dated 20 August 2008 and a brief signed statement dated 4 September 2008, both of which were first disclosed with the acknowledgement of service when this was served on 16 November 2010. It would seem from the second refusal decision that the UKBA received EM’s signed statement dated 4 September 2008 on 16 October 2008. If that was so, the only way that UKBA could have received these documents was by EM’s solicitor sending them to the UKBA. It would also seem that they had been received by UKBA on 16 October 2008. The UKBA never explained how or why EM’s statement came into its hands.

[19]The statement reads:

“1. I confirm that I married Mrs Balakoohi in 2006 in the UK. She was granted a 2 year visa by the Home Office after I supported a marriage application. 2 I now confirm that my relationship with Mrs Balakoohi has broken down and we no longer live together. 3. I am now in the process of initiating divorce proceedings against Mrs Balakoohi. 4. I wish for the Home Office to curtail the leave to remain given to Mrs Balakoohi on the basis that our relationship is no longer subsisting. This statement is true to the best of my knowledge and belief. Signed [EM] Dated: 04, 09, 08”

Signed [EM]

[20]On 19 October 2008, EM wrote a letter to the letting agents from whom EM and HB had originally found the details of the one-year assured shorthold tenancy of their matrimonial home. This tenancy was due to expire on 28 February 2009 and the rent was £550 per calendar month which EM had been regularly paying monthly in advance. HB was not involved in writing or sending this letter and EM had not provided her with a copy so that a copy of it was not available. However, HB did receive a copy of the reply that was dated 21 October 2008 since it had been addressed to “Mr Malvandy and Ms Balakoohi” and had been sent to the matrimonial home. The letter stated:

“Further to the enclosed letter you sent to us on 19 October 2008, you will have to bring this information to the attention of your landlord as we do not manage this property”

. The answer to the letter suggests that EM had written to the letting agents giving notice that he had vacated the matrimonial home and that neither EM nor HB wanted to renew the tenancy when it expired in February 2009. Whatever the precise terms of EM’s letter, its contents must have been inconsistent with his previous statement that the marriage had broken down and he had moved out of the matrimonial home prior to 4 September 2008. Indeed, his letter that had been dated 19 October 2008 provided some evidence that EM, on his own admission, had only recently vacated the matrimonial home and that the marriage had only recently broken down.

[21]On 17 November 2008, HB again visited her GP’s surgery because, she contended, she was still suffering from the emotional effects of the domestic violence that EM had subjected her to. Those effects, in particular, were that she had lost her confidence. HB reported to the GP that EM came back to the matrimonial flat occasionally, that she was unable to pay the rent because she couldn’t get a job and that the police were supportive but had not given her any domestic violence counselling. The GP recorded this visit in the notes as being a “victim of domestic violence review” and that the GP had advised HB to go to a Women’s Aid centre or a Women’s Counselling centre, both of which were local. The GP provided her with the relevant telephone numbers to enable EM to approach those centres. The GP took HB’s blood pressure and, in the light of the readings of 113/72mm Hg and of HB’s report of feeling stressed and of having lost confidence, the GP advised EM that she should consider taking anti-depressants. HB stated that she contacted these centres a few times in the period after she had been advised to approach them by her GP.

[22]HB stated that, in the light of the incident that had occurred on 12 October 2008 in particular and the violent and manipulative conduct of her husband in general, she concluded in the days following the incident on 12 October 2008 that she could no longer live with him and that her marriage had finally broken down. She had no further contact with EM after 12 October 2008 and they have lived separately ever since. There was no evidence in the documents considered by the decision-maker that, up to September 2010, either party had started divorce proceedings.

[23]HB’s emotional stress began to improve and she felt able to start to look for ways to support herself. She decided to train as a dental nurse. She found a job as a trainee dental nurse in Swindon and she looked for and found independent accommodation there. She left the matrimonial home and moved to Swindon sometime in January 2009. She provided a copy of her employment contract with a dental practice in Swindon which showed that she had started work in her new employment on 29 January 2009.

[24]The tenancy expired on 28 February 2009. HB had not paid anything towards the rent prior to the ending of the tenancy because she was not working at that time and had very limited funds so she could not have afforded any part of the monthly rent of £550 that was payable one month in advance. It would seem, therefore, that the rent had been paid throughout by EM since there was no evidence of any arrears of rent or of any complaint by the landlady of any late or non-payment of rent.

[25]The SSHD issued a decision dated 20 January 2009 addressed to HD at the matrimonial home curtailing her LR with effect from 20 January 2009 because, so it stated, she and EM were no longer living together as spouses and the SSHD was not satisfied that she and EM had an intention to live permanently together as spouses or that their marriage was subsisting. The decision contained a one-stop warning. HD never saw this decision and was unaware that it had been made until a copy of it was sent to her solicitor with the first refusal decision on 1 December 2009.

[26]In June 2009, whilst still living independently in Swindon, HB began to think about the need to renew her LR which, since she had no idea that it had been curtailed, she believed was still in place with an expiry date of 13 September 2009. She took advice as to what she should do and she was advised that she should apply for ILR as a victim of domestic violence. She was introduced to the solicitor who is still acting for her and, on that solicitor’s advice, she submitted an SET (DV) application dated 8 September 2009 for ILR on the basis that she was a victim of domestic violence that had caused her marriage to break down. Further documents were submitted by her solicitor under cover of a letter dated 25 September and still further documents were submitted at the request of the UKBA under cover of a second letter dated 9 October 2009. The application for ILR was rejected in the decision letter dated 1 December 2009 and a copy of the earlier curtailment decision letter dated 20 January 2009 was included with the rejection letter. History of SET (DV) Application

[27]HB’s paragraph 289A application. HB’s paragraph 289A application and its supporting statement and other documents were sent to the SSHD by her solicitor. HB stated on the application form that there had been a relevant police caution, namely that the police ordered EM not to enter the matrimonial home. HB was there referring to the incident that occurred in late August 2008 and the subsequent incident in mid-October 2008 when, on both occasions, two police officers had visited the matrimonial home and had advised EM on the first occasion to spend a night away from the flat and HB on the second occasion that EM had been advised not to return. She also stated on the application form that their relationship had broken down in October 2008 when they started to live apart and that she had continued living at the property, but not with EM because he was prevented from entering the property unless authorised by the police. She stated that she had left the matrimonial home in January 2009.

[28]The first refusal decision dated 1 December 2009. The SSHD’s refusal was based on a finding that the marriage had broken down in October 2009. The decision noted that HB had claimed to have been a victim of domestic violence that turned from verbal aggression to physical violence involving her husband hitting her several times from July 2008 until their final separation and that there was no independent and objective documentary proof to substantiate her own statement dated 10 September 2009 in which she claimed to have been a victim of domestic violence. The other documents she had submitted did not provide the necessary independent and objective proof of that.

[29]HB’s PAP letter in response. HB’s solicitor replied to the refusal letter in a pre-action protocol letter dated 16 December 2009 intimating that HB would be seeking judicial review of the decision on the grounds that it was unlawful, irrational and flawed by procedural impropriety. The principal ground of complaint was that the decision had failed to follow the guidance of the Court of Appeal in Ishtiaq v SSHD

[2007] EWCA Civ 386

, CA. in two material respects. Firstly, the decision had, contrary to that guidance, ignored and taken no account of HB’s evidence because, so it had been asserted, it was unfounded since it was not supported by independent and objective evidence. The guidance had, however, made it clear that where no other evidence was available, such uncorroborated evidence could be relied on although it should be treated with care. Secondly, the decision erroneously disregarded the medical evidence on the mistaken basis that it was based entirely on what HB had reported to the GP she had seen and was therefore not corroborative of her own evidence. The letter asked the SSHD to review the decision.

[30]The second refusal decision dated 11 February 2010. In response to the PAP letter, the SSHD reviewed the original decision and decided to maintain it. The review considered the incidents that had occurred on 2 August and 12 October 2008 and concluded that neither incident evidenced any domestic violence directed towards her by EM. Considerable weight was placed on what EM was reported to have stated to the police during his visits to the police station on 2 August and 12 October 2008 and on the fact that HB had been arrested and, although no charges were made, HB had claimed to have acted in self-defence and the incident had been recorded by the police. HB’s evidence was again disregarded as being unsupported by independent corroborative evidence and the medical evidence was similarly disregarded and, moreover, was mistakenly considered to have related to a further, non-existent incident that the decision mistakenly stated had occurred on 10 September 2008.

[31]The withdrawal of the first and second decisions. HB then filed a claim form seeking judicial review of both the decision and the review decision. The grounds were similar to those put forward in the PAP letter. The SSHD, in the light of those grounds of defence, withdrew both the first decision and the review decision and agreed that the judicial review would be stayed pending a redetermination of HD’s application.

[32]The third refusal decision dated 14 September 2010. This decision was taken by the same decision-maker as had taken the second refusal decision although that decision-maker had not taken the first refusal decision. The reasons for rejecting HB’s application were, in summary, that HD’s evidence was not considered as constituting evidence that domestic violence had occurred because no independent verification of the information that HB had given had been provided. In those circumstances, the only incident of domestic violence that was considered was that which had allegedly occurred on 12 October 2008. The medical evidence, put forward to support HB’s account of that incident, was not considered as supporting HB’s account since it was regarded as being entirely based on HB’s report and was not therefore an independent verification of her account. The decision-maker had, however, relied on the police incident log even though it had been obtained by the SSHD without informing HB that it was being sought and without showing it to HB before the decision was taken. The log was considered as showing that the incident that had occurred on 12 October 2008 was not a domestic violence incident. Moreover, the decision-maker concluded that even if that incident had been an incident of domestic violence, it had not caused the marriage to break down since, on the basis of EM’s statements to the UKBA and to the police, it was clear that the breakdown had occurred prior to 4 September 2008 The Law

[33]HB, having been admitted and granted LR as a student, having then obtained a certificate of approval for her marriage to EM and having then married him, applied for LR as the spouse of EM who was a person who was present and settled in the United Kingdom at a time when her original LR was still extant but was about to expire. She was granted LR on that basis from 13 September 2007 until 13 September 2009. HB was therefore eligible to seek to rely on paragraph 289A(iv) of the Immigration Rules HC 395 which is headed “Requirements for indefinite leave to remain in the United Kingdom as the victim of domestic violence”. This 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; … and (ii) the relationship with their spouse … was subsisting at the beginning of the relevant period of leave or extension of stay referred to in (i) or (ii) above; and (iii) 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.”

[34]There are no evidential requirements in the IRs as to the evidence that an applicant must produce when applying under paragraph 289A for ILR as the victim of domestic violence. However, section 4 of chapter 8 the IDIs entitled Family Members Victims of Domestic Violence The current version at the time that the third decision was taken in September 2010 was dated August 2010. There was no evidence that the relevant parts of section 4 were materially different from those applicable to the relevant decision of the AIT taken in March 2006 that were considered in Ishtiaq or which governed the first and second decisions in this case. However, in May 2012, section 4 of chapter 9 of the IDIs could not be read on or downloaded from the UK Border Agency website and a short statement at the beginning of section 4 read:

“… [section 4] has now been replaced by modernised guidance.” sets out the requirements for the grant of ILR to a victim of domestic violence and the opening paragraph states that these requirements should be referred to when a decision-maker is making a decision about such an application. IDIs contain guidance to caseworkers as to how they should apply the IRs including paragraph 289A when they make decisions in individual cases and 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. The Court of Appeal accepted in Ishtiaq Ibid., paragraphs 13 and 26 per Dyson LJ. that this section of the IRs was a requirement which paragraph 289A(iv) referred to but it concluded that the provisions were not mandatory. The Court of Appeal they provided guidance as to how a decision-maker should decide a paragraph 289A application. Dyson LJ summarised the guidance in this way: “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. … 36. … 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. … 38. … 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. … section 4 of chapter 8 of the IDIs [cannot] prescribe 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. …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. … 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.”

[35]The relevant guidance, when read with Ishtiaq’s case, may be summarised in this way: (1) The Home Office’s wide definition of domestic violence is set out in section 4 of chapter 8. The definition, described in the document as “wide” is as follows:

“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.”

To this should be added this definition of injury also found in section 4 of chapter 8: “Any harm done to a person by the acts or omissions of another - i.e. injuries are not just restricted to physical harm.” (2) It must be established that the domestic violence occurred during the initial two-year probationary period of the marriage. The fact that the marriage was subsisting when domestic violence occurred would normally (but not inevitably) be evidenced by the fact that the couple were living at the same address when the incident occurred. (3) Proof that domestic violence has occurred should be evidenced by the applicant in the form of supporting documents submitted alongside the application. The evidence may relate to one incident or a number of incidents and should be used to build up a case history in order that the decision-maker makes as thorough a decision as possible when making a judgment on whether domestic violence has taken place. Applicants are required to provide as many pieces of evidence as possible to prove that they were victims of domestic violence and where just one piece of non-formal evidence is provided, such evidence would not usually be sufficient to enable an applicant to prove her or his case. (4) Domestic violence should be established without the need for further consideration where the evidence is formal, that is of a kind that shows that the perpetrator has been found guilty of a relevant conviction against the applicant or has received a police caution for a relevant offence. In such cases, the formal evidence is sufficient for a finding that domestic violence has occurred but, apart from that, there is no requirement that any source of evidence is necessary for such a finding. (5) Where the alleged perpetrator has not been found guilty of or formally admitted to guilt for a relevant offence, all relevant evidence that has been provided should be used. Since it is often difficult for victims of domestic violence to produce documentary evidence of such violence and there is often unwillingness or insufficient evidence to take a case to court, nonetheless caseworkers should still try to obtain evidence from the police, courts or Multi-Agency Risk Assessment Committees (MARACs). (6) Consideration should also be given to other sources of evidence such as medical reports or a GP’s letter confirming the existence of injuries consistent with the complainant being a victim of domestic violence; appropriate undertakings given to a court that the perpetrator will not approach the complainant; a police report confirming attendance at an incident resulting from domestic violence; a letter from a social services department confirming its involvement in connection with domestic violence or a letter of support from a domestic violence support organisation. (7) Witness statements from friends or family members and letters from official sources that relay unfounded reports by the applicant should be verified where possible and treated as additional evidence when building up the case background. (8) The applicant’s own evidence must also be considered. However, that evidence is unlikely to be accepted to the extent that it is unfounded or unsupported by independent evidence from an objectively reliable source. Where the applicant has a good reason for not being able to provide supporting evidence, it is more likely that weight will be given to unsupported evidence or even unsupported non-independent evidence. (9) 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 IRs which curtails their fact-finding function or otherwise prescribes how it should be conducted. (10) A caseworker should usually start the evaluation of the evidence 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, the caseworker should seek an explanation for 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. (11) A caseworker can rarely decide whether a report by the applicant is unfounded without interviewing the applicant and asking questions about the alleged domestic violence. (12) The exercise required of a caseworker in this area is often difficult and usually fact-sensitive. It involves the exercise of professional judgment or discretion which should be carried out using a structured decision-making process and a review of, and reliance so far as possible on, the entirety of the evidence presented. In doing this, the caseworker in reaching a decision should use the IDIs as guidance and not as a mandatory series of prescriptive steps which must lead to an unfavourable decision for the applicant if any step provided for in the guidance cannot be fulfilled.

[36]On behalf of HB it was submitted that each of the three refusal decisions concerned with her paragraph 289A application failed to follow this guidance in a number of material respects. These failures were to be found in the first refusal decision and were repeated in each of the two subsequent refusal decisions with the result that the third surviving decision is fatally flawed and should be set aside. The Curtailment Decision

[37]The decision and accompanying reasons. This decision, which was not seen by HB until her solicitor received the first refusal decision dated 1 December 2009 which enclosed a copy of this curtailment decision states:

“The decision has been made to curtail your leave so that it expires on the date shown at the end of this notice. In view of the fact that you and [EM] are no longer living together as spouses, the Secretary of State is not satisfied that you and [EM] intend to live permanently with each other as spouses or that your marriage is subsisting. You accordingly no longer meet the requirements of the Immigration Rules under which your leave to remain was granted.”

[38]The decision also contained a one-stop warning made under section 120 of the Nationality, Immigration and Asylum Act 2002 (“NIAA”). The material parts of this warning informed HB that she had now to make a formal statement about any reasons why she thought that she should be allowed to stay in the UK. The statement should include the reasons why she wished to stay here and any grounds why she should not be removed or required to leave. HB was also warned that if she later applied to stay in the UK for a reason which she could have given the UKBA at that time, she might not be able to appeal if her application was refused.

[39]The accompanying reasons for refusal letter stated that in making the decision to curtail HB’s leave, consideration had been given to a list of matters including this:

“In a letter dated 4 September 2008 to his solicitors, [EM] informed the UK Border Agency that your relationship was no longer subsisting and that he does not intend to live with you as his spouse in the future.”

The letter continued:

“Consideration has been given to all the circumstances of this case including any compassionate factors but it has been concluded that it would be right to curtail your stay. If you appeal, you do not have to leave the United Kingdom while the appeal is in progress. However, if your appeal is unsuccessful, and you do not leave the United Kingdom voluntarily, you will be removed to Iran.”

[40]Significance of decision. The decision influenced all three subsequent refusal decisions in two significant respects. Firstly, it made no reference to domestic violence and that provided the basis for the later decisions to conclude that there had been no such violence. Secondly, its conclusion that the marriage had broken down before 4 September 2008 had a decisive influence on the third refusal decision which concluded that any domestic violence that had occurred had not caused the marital breakdown since the breakdown had occurred before 4 September 2008 and the domestic violence had occurred on 12 October 2008. HB had contended that the breakdown occurred after 12 October 2008 so that her contention was dealt a fatal blow by the earlier decision.

[41]There were two further adverse consequences of the decision for HB. The first related to her non-compliance with the one-stop notice since she did not serve a notice informing the UKBA that she believed that she should be allowed to stay in the UK because she had been a victim of domestic violence. It is possible that the subsequent decision-makers regarded that failure as adding weight to the view that domestic violence had not been a cause of the breakdown of the marriage. The second adverse consequence was that HB had no right of appeal from any of the refusal decisions since these were not immigration decisions and hence not appealable. This was because HB had applied for ILR after her LR had been curtailed. Had her LR still been in force when she applied for ILR, any refusal of that application would have been an immigration decision and would have carried a right of appeal. The fact that there had been no appeal could also have been regarded by each decision-maker as supporting the factual basis of the third refusal decision . Issues arising out of the Curtailment Decision

[42]Introduction. The curtailment decision is relevant to a consideration of HB’s challenge to the third refusal decision given its influence on that decision and, in consequence, I must decide a number of issues arising out of the curtailment decision. These are:(1) Was the curtailment decision likely to have been set aside had an appeal been brought in time?

(2) Why was there no appeal from the curtailment decision?

(3) Was it permissible for the refusal decision-maker to rely on the curtailment decision in concluding that the marriage had broken down before 4 September 2008?

(4) Will the curtailment decision adversely influence any future consideration of HB’s ILR application?

[43]HB contended that the curtailment decision was defective because it had been issued:(1) without her first being given an opportunity to see or to comment upon the substance of EM’s solicitor’s letter dated 4 September 2008 or EM’s statement that was also dated 4 September 2008; and

(2) nearly five months after the UKBA had received EM solicitor’s letter without the decision-maker first having sought corroboration of the factual basis of EM’s evidence from EM’s solicitor.

[44]The SSHD contended that the decision was one that the UKBA was entitled to make, that any challenge to it would have been bound to fail and that it had been validly served. Moreover, since the decision had not made the subject of a judicial review claim within the time limits provided for in CPR 54.5, namely within 3 months of the decision being made on 20 January 2009 or within 3 months of HB first becoming aware of it on 2 December 2009, it was now too late to challenge the decision or its contents. This contention was reinforced by the fact that there was no challenge to the decision included within this judicial review. In those circumstances, the decision-maker was entitled to place weight on the finding in the curtailment decision that the parties’ marriage had broken down prior to 4 September 2008 and to EM not referring to there having been any domestic violence when reporting that the marriage had broken down and that he had moved out of the matrimonial home.

[45]Grounds for challenging the curtailment decision. The curtailment decision was made solely on the basis of the letter that the UKBA had received from EM’s solicitors dated 4 September 2008 and EM’s short witness statement also dated 4 September 2008 which the UKBA had received on 16 October 2008. It is not known why the UKBA took so long to reach that decision after it had received EM’s solicitors’ letter.

[46]The decision-maker should not have relied on EM’s statement as the exclusive basis of the decision to curtail HB’s LR. This is because the statement lacked essential detail, independence and objectivity. Before relying on it, the decision-maker should have asked EM to provide further information and should then have given HB the opportunity to comment on its contents and to provide any further details about her marriage that she wished to be taken into account. EM was not an independent witness to the marriage and the decision-maker should have been alert to the possibility that his evidence was tailored because he wanted HB sent back to Iran as part of a campaign of domestic abuse and harassment. In those circumstances, the decision-maker should have looked for well-founded independent evidence to support EM’s statement and should also have given HB a fair opportunity of challenging it. Instead, the decision-maker accepted EM’s crude and unsolicited witness statement as being accurate and as the only evidence that was needed to make the curtailment decision.

[47]It is possible to see that the statement was an insufficient basis for the curtailment decision by considering the respects in which it was inadequate. The following are some of the questions about its contents that the curtailment decision-maker should have raised with EM before finally deciding to issue the curtailment decision:(1) Why was the statement made;

(2) Why did EM want HB returned to Iran and why had he decided to report the breakdown of their marriage to the UKBA;

(3) Who drafted the statement;

(4) Was the statement taken down and signed on 4 September 2008 and, if not, on what date was it (a) taken down and (b) signed;

(5) If the statement was not taken down and signed on 4 September 2008, why was it dated 4 September 2008;

(6) Why wasn’t the statement enclosed with the solicitors’ letter dated 4 September 2008 and why did that letter state that EM was willing to forward a signed statement to the UKBA if required;

(7) What was the date on which EM and HB stopped living together and why did EM move out;

(8) Where was he now living, who was he living with and on what terms as to rent and other matters was he living where at his new accommodation;

(9) What were his plans for the future;

(10) What had occurred to cause the marriage to break down;

(11) What was the immediate cause of the marriage to break down;

(12) When did the marriage breakdown occur;

(13) When had divorce proceedings been started or, if they had not been started, when would they be started;

(14) On what grounds was EM seeking a divorce;

(15) Please supply copies of the divorce proceedings and any correspondence between the parties and their solicitors relating to the breakdown of the marriage;

(16) Why was EM’s statement sent to the UKBA on 16 October 2008; and

(17) Whether EM’s solicitors had sent a copy of EM’s statement to HB and, if they had not, why a copy had not been sent to her.

[48]It follows that the exercise of the decision-maker’s discretion to curtail HB’s LR on the exclusive basis of EM’s statement and without first seeking HB’s comments on it was open to challenge on an appeal and that the basis of that appeal would have been that there had been an erroneous exercise of the discretion to curtail HB’s LR by the decision-maker of the curtailment decision and an error of law in reaching that decision on inadequate evidence and following the use of an unfair and irregular procedure.

[49]Why there was no appeal from the decision. The curtailment decision was sent by recorded delivery to the matrimonial home but it was returned to the UKBA by Royal Mail on 15 April 2009 with a marking on the envelope that showed that delivery had been attempted on 22 January 2009 and that it was being returned because Royal Mail had been unable to deliver the letter and it had not subsequently been called for. HB’s evidence was that she had moved away from the matrimonial home to an address in Swindon in January 2009 in time to start her new job as a dental nurse. It was contended on her behalf that she must have moved to Swindon before 22 January 2009 when Royal Mail had attempted unsuccessfully to deliver the recorded delivery letter so that she was no longer living at the matrimonial home when delivery had been attempted. HB produced a copy of her contract of employment which clearly showed that her first day at work in Swindon had been 29 January 2009. HB stated that she had moved to Swindon in January 2009 and had found independent accommodation there and had moved into it before she had started work at her new place of employment.

[50]I am satisfied that, on the basis of this evidence, HB had moved away from the matrimonial home and had moved to and established a new home in Swindon before Royal Mail had attempted to serve the curtailment decision letter on her on 22 January 2009.

[51]Non-service of the decision on HB. Service of the decision was governed by The Immigration (Notices) Regulations 2003 (“INR”). These regulations govern service of immigration decisions such as the curtailment decision in this case. Regulation 4 required the decision-maker to give HB written notice of any immigration decision taken in respect of her which was appealable. Regulation 7 provided that service might be effected by sending the notice by recorded delivery to an address provided by HB for correspondence or, where no address for correspondence had been provided, to her last-known or usual place of abode. Regulation 7(4) provided that where the notice was sent by post, it was deemed to have been served unless the contrary was proved. I have already found that, on the balance of probabilities, HB proved that notice of the decision was not served on her and that the notice was returned unserved to the UKBA.

[52]The SSHD subsequently informed HB in the third refusal decision that the failure to serve her with a copy of the decision was attributable to her default. The relevant part of the decision states:

“Your leave to remain in the United Kingdom was curtailed on 20 January 2009, prior to your Domestic Violence application (a copy of the notice has been provided to your representative). Your leave was curtailed as your spouse informed us that your relationship was no longer subsisting and that he did not intend to live with you in the future. The Secretary of State wrote to notify you of this curtailment on 20 January 2009. However, the package containing our notification was returned to us on 15 April 2009 by Royal Mail as the package had not been called for. It is your responsibility to ensure that up to date contact details are provided to the Secretary of State. If you have moved from the address provided when the notice was sent, you should have notified the Secretary of State of this. In the absence of such notification, the Secretary of State considers that all reasonable steps were taken to ensure that you were served with notice of the curtailment of your leave.”

[53]Ms Olley, counsel for the SSHD repeated in her submissions the contention that HB was under a duty to keep the UKBA notified of her current address. However, it is noticeable that neither the SSHD in the third refusal decision nor Ms Olley in her submission referred to any regulation or to any condition imposed on HB that required her to keep the UKBA informed of her current address. The UKBA was only aware of the matrimonial address because it had been brought to its attention by EM’s solicitors in their unsolicited letter inviting it to curtail HB’s LR. The UKBA had never brought to HB’s attention any obligation to keep it informed of her current address. Indeed, until she had been granted LR as EM’s spouse on 19 September 2007, HB had, as a condition of her preceding LR as a student, been subject to a reporting condition but in the replacement LR granted in September 2007 it was stated that HB was no longer required to register with the police and her police registration certificate had been endorsed to show this. The IR notice also stated that if her marriage broke down during the period she had been allowed to stay but she wanted to remain in the United Kingdom, she would need to apply and qualify to stay in the United Kingdom on a different basis. However, that statement did not include an additional requirement that the application had to be made at the time of the marital breakdown and, read in context, it merely notified HB that when her existing LR expired, she would not be able to renew it if her marriage had broken down but would need to apply for LR under a different basis. There was no indication that she would have to apply for LR on a different basis at the time her marriage broke down and she reasonably assumed that she should wait until the end of her LR before applying for ILR.

[54]Thus, the LR that HB was, as she thought, still subject to, not only failed to impose any condition or obligation to notify the UKBA of any change of address, it also appeared to be informing HB that she did not have to make any application for further LR or provide any change of address to the UKBA until her current LR expired.

[55]No rule, regulation or policy was drawn to my attention which expressly or by implication imposed a continuing obligation on HB to keep the UKBA informed of any change of address. Had this been intended, the UKBA could have imposed an express condition to that effect into HB’s current LR when it was granted. I therefore conclude that HB was under no obligation to notify the SSHD of any change of address and no adverse inferences should have been drawn from the fact that she did not take this step when she moved from Birmingham to Swindon in January 2009.

[56]File notification. The UKBA, when the notification of the decision dated 20 January 2009 was returned unserved, placed it on HB’s Home Office file. This was in conformity with regulation 7(2) of the INRs which reads:

“(2) Wherea person’s whereabouts are not known; and … (b) (i) no address has been provided for correspondence and the decision-maker does not know the last-known or usual place of abode or place of business of the person; or the address provided to the decision-maker is defective, false or no longer in use by the person, and (c) no representative appears to be acting for the person, the notice shall be deemed to have been given when the decision-maker enters a record of the above circumstances and places the signed notice on the relevant file.”

Since the UKBA placed a record of the failed attempt to serve HB and a copy of the notification on her file, this regulation is applicable to her case. The effect is that HB is deemed to have been served with the notification, her LR curtailed without her knowing that that had occurred and she lost the right of appeal against a subsequent refusal of an application for ILR based on the domestic violence that she might have been subject to. … (b) (i) no address has been provided for correspondence and the decision-maker does not know the last-known or usual place of abode or place of business of the person; or the address provided to the decision-maker is defective, false or no longer in use by the person, and (c) no representative appears to be acting for the person, the notice shall be deemed to have been given when the decision-maker enters a record of the above circumstances and places the signed notice on the relevant file.”

[57]Adverse conclusions. The curtailment decision should never have been made because it had been based solely on the inadequate information provided in EM’s statement without HB having been given an opportunity to comment. Moreover, HB had not been served with notification of the curtailment decision through no fault of her own and she was unaware that her LR had been curtailed from 20 January 2009. She had therefore been unable to appeal the decision or respond to the one-stop notice.

[58]It is too late for HB now to serve a notice of appeal in relation to the curtailment decision or seek to a judicial review of it. However, if I set aside the third refusal decision, HB’s paragraph 289A application will have to be considered for the fourth time. Thus, HB will be exposed to the risk of the injustice of a future decision-maker again unfairly relying on the facts found by or contents of the curtailment decision. However, no issue estoppel was created by the curtailment decision, it is only conclusive of the fact that, on the date it was issued, HB’s marriage had broken down. There is nothing to prevent HB seeking to rebut any finding or inference that the marriage had broken down prior to the date of the curtailment decision or that that breakdown was not caused or influenced by domestic violence of any kind.

[59]I can, therefore, at the same time as quashing the third refusal decision, prevent the risk of any future misuse of the curtailment decision by granting a declaration to the effect that: The SSHD may not rely in any future consideration of HB’s paragraph 289A application on:(1) the fact that HB’s LR was curtailed by the curtailment decision of 20 January 2009;

(2) any finding or inference in that decision as to the date or cause of the breakdown of her marriage or the existence or non-existence of domestic violence perpetrated or suffered by EM or HB during their marriage;

(3) the fact that notification of the curtailment decision was not served on HB;

(4) the fact that no notice of appeal was lodged against the curtailment decision; and

(5) the fact that HB did not respond to the one-stop notice that was served with the curtailment decision. The Application for Judicial Review – Introductory Discussion

[60]As Dyson LJ’s judgment in Ishtiaq makes clear, a decision-maker concerned with a paragraph 289A ILR application by an applicant claiming that she or he has been the victim of domestic violence that has caused her or his marriage or other intimate relationship to break down is faced with a sensitive and difficult decision-making exercise. This is because there will often be significant conflicts of factual assertion; language, social and cultural difficulties making the collection and presentation of reliable evidence very difficult; an absence of significant independent corroborative evidence; the need to take speedy decisions that will usually be based entirely on documentary material without the opportunity to interview the applicant or any other witness and a significant risk that the applicant or the alleged perpetrator or both are lying or seeking to manipulate the evidence to her or his advantage. However, despite these difficulties, a decision-maker must keep constantly in mind that the applicant has potentially been the subject of serious domestic violence who is seeking to be released from what is frequently the equivalent of imprisonment in a personal relationship which has been reduced to loveless necessity and who is entitled to ILR if she or he is able to establish the necessary factual basis for the application. In short, an applicant is not to be deprived of that entitlement by an unduly mechanistic or strict consideration of the available evidence.

[61]It is for these reasons that the IDIs provide considerable and unusually detailed guidance to decision-makers as to both the collection and evaluation of evidence and the decision-making process itself. The judgment in Ishtiaq is particularly helpful to decision-makers since it provides a guide to use of the IDIs in a paragraph 289A decision-making exercise. The upshot is that a decision-maker is advised that the relevant provisions of the IDIs contained in section 4 of chapter 8 provide guidance to decision makers that should be followed unless there are good reasons not to follow it but that the guidance itself is entirety non-mandatory.

[62]The overriding features of the guidance are that all the material available to a decision-maker should be evaluated and taken into account save in unusual circumstances and that the decision-maker’s task is to weigh the credibility and reliability of all the evidence and not to discard any of it. Thus, although relevant material should wherever possible by independently supported or corroborated, none of it is ordinarily to be discarded altogether. This is particularly so if there is a good reason for the relevant evidence not being supported by independent corroborative evidence. The weighing up of the reliability and credibility of all the available evidence and the decision-making exercise is to be undertaken using a structured and sequential process that is provided for in the IDIs and explained in detail in the judgment in Ishtiaq. I have attempted to summarise this structured approach in paragraph 35 above.

[63]The decision-maker should seek further explanations as to why apparently relevant material is not supported by independent evidence and may seek material himself or herself, particularly from the police. The decision-maker may also interview the applicant or other witnesses, particularly where relevant evidence has been provided with a good reason for its not being independently supported. The decision-maker must, throughout, act fairly towards the applicant. This means, amongst other requirements, that an applicant should always be provided with material that is in the hands of the decision-maker which he or she knows, or should know, has not been seen by the applicant and which that decision-maker considers to be relevant to the decision-making process. This is so whether or not the decision-maker proposes to take that material into account. The purpose of this voluntary disclosure by the decision-maker is that, in all fairness, the applicant should have the opportunity of providing comments or additional evidence in the light of that further material whether in an attempt to rebut it or to use it in support of the application. Particular features of HB’s application and the SSHD’s third refusal decision.

[64]Introduction. HB’s paragraph 289A application was one that presented particular difficulties for a decision-maker as is shown by there having now been three successive decisions about it. These difficulties arose from a series of causes that included the unusual nature and extent of the domestic violence alleged; the cultural and social isolation of HB; the relatively short length of her marriage; the fact that she had not made a formal complaint to the police; the further fact that, as she belatedly discovered, her husband had made three unsolicited adverse, highly questionable and controversial reports about her, being a voluntary disclosure to the SSHD and two visits to the police; the preceding curtailment decision which she was unaware of; HB’s arrest and the subsequent decision to take no further action and UKBA’s obtaining and using but not disclosing highly relevant materials relating to EM’s reports to the UKBA and the police which contained little if any independent evidence about HB and her allegations.

[65]Judicial review rather than appeal. Paragraph 289A applications are, as I have already explained, highly emotionally and fact sensitive. They are intended to be made and decided rapidly after the alleged domestic violence has occurred and, since they are usually made by an applicant at a time when she or he still has LR, any adverse decision and any unforeseen difficulties that have arisen in the decision-making process will be subject to an appeal to the First Tier Tribunal which will be decided having heard full oral evidence which will have been susceptible to cross-examination and decided by a specialist immigration judge who may hear additional evidence to that put before the UKBA decision-maker. Because the 289A decision is a discretionary decision, albeit one that involves a considerable amount of fact-finding, the decision and any findings of fact, since it will usually be an immigration decision, can give rise to an appeal on the grounds of that the discretion exercised by the UKBA decision-maker should have been exercised differently.

[66]Regrettably in this case, because the UKBA was constrained to make the curtailment decision without any notice to HB and then was only able to serve it by placing it on HB’s file, HB’s LR was curtailed without her knowledge so that she lost her rights of appeal and, in consequence, her right to appeal the refusal decisions. Her only remedy is, therefore, to seek a judicial review of the critical third refusal decision. This has been mounted on conventional judicial review grounds involving a paper consideration of the allegation that the decision was Wednesbury unreasonable or unlawful. This does not provide as full or as satisfactory a remedy for HB as an appeal would have done since the judicial review process involves a review rather than the rehearing that she ought ordinarily to have been entitled to when challenging a paragraph 289A decision. I considered during the hearing whether I should venture into difficult and controversial territory by suggesting that this judicial review application involved me in having to determine antecedent questions of fact, namely whether domestic violence had occurred, when had it occurred and did it cause HB’s marriage to breakdown. If so, I considered whether I should direct a fact-finding hearing similar to the hearings that now take place in age-dispute cases in the asylum field following the decision of the Supreme Court in A v London Borough of Croydon [1009] UKSC 8, SC. . I decided, however, that I had sufficient material in the documents and submissions lodged by the parties to enable me fairly to decide HB’s complaints about the third refusal decision. I concluded that she would not be prejudiced by my deciding her complaints by reference to a Wednesbury unreasonable review of the decision. It was therefore not necessary to consider ordering a rehearing of the original evidence coupled with a hearing of any additional evidence followed by a consideration of whether the decision-maker’s exercise of discretion could stand in the light of the facts found by me in that evidence-gathering stage of the judicial review.

[67]Domestic violence definition. HB’s domestic violence complaints about EM were that, from an early stage in their marriage, he engaged in different forms of domestic violence culminating in two particularly serious violent incidents. The SSHD’s definition of domestic violence, which HB’s complaints relied upon and the decision-maker had to decide upon, encompassed threatening behaviour, financial abuse, emotional abuse, psychological abuse and physical abuse. All these forms of behaviour fall within the SSHD’s definition of domestic violence. This is because the term “domestic violence” when used in family, immigration and criminal contexts, is not exclusively a reference to physical violence but covers all forms of domestic abusive conduct including abuse that is emotional and psychological. HB alleged that she suffered from several of the categories of domestic violence that I have listed over a period of many months in the so-called probationary period of her marriage and that it was the totality of all this violent and abusive behaviour, albeit finally triggered by the second incident of physical violence that occurred on 12 October 2008, that caused her marriage to break down. It is a particularly unfortunate consequence of the way that each refusal decision was taken that the only incident of alleged domestic violence that was considered was the last alleged violent incident. None of the preceding domestic violence in any of its alleged forms was considered as well.

[68]Marriage break down and causation. A paragraph 289A applicant must show that her or his relationship was “caused” to “permanently break down” “before the end” of the probationary period as a result of “domestic violence”. These phrases are ordinary English language phrases in general use and, on conventional principles of interpretation, the facts found by the decision-maker should be applied to them in a sensible, practical and general way. This is particularly so since the meaning of those phrases is somewhat fluid. For example, a marriage is not like a car which breaks down in an instant and in a clearly visible manner. The breakdown of a marriage can take many forms, it usually occurs over an extended period of time and it can usually only be identified as having occurred after the breaking down process has finished and after a review has taken place of the nature of the relationship over an extended period. Thus, a marriage rarely breaks down on a particular day. However sticky the relationship has become, a marriage is usually is regarded as surviving for some time after the onset of the factors, particularly domestic violence, that will eventually lead to its break down. Often a marriage will be considered as remaining in being and as not having broken down long after the parties have ceased to live together due to reasons connected with children, finance or social and emotional pressures.

[69]Equally, there will rarely be a clear cut cause of a marriage’s breakdown. Thus, in determining whether domestic violence, in any or all of its forms, caused the breakdown of a marriage, it will often be necessary to look at a lengthy pattern of behaviour. The fact finding exercise required by a paragraph 289A application is a composite one. It involves a consideration in the round of this set of circumstances: was there domestic violence as defined by the SSHD that caused the marriage to breakdown that occurred before the marriage broke down? Given this factual and emotional complexity, it will never be sufficient for a decision-maker to take at face value the statement of a party to the marriage or a witness of the marriage that “the marriage broke down on – or even by – a particular date. It will be necessary for the decision-maker to consider all relevant factors independently of that individual judgment and to examine why the party or witness expressing that view had reached that conclusion before a decision can be taken as to whether that opinion should be accepted. This is because, to use the somewhat technical language of the law of evidence, the statement that a marriage has broken down is not a pure statement of fact. It is a value judgment that is based on facts.

[70]Position of EM. EM was not an independent witness in relation to either the SSHD’s consideration of HB’s LR status or HB’s paragraph 389A application. He was the other party to the marriage and HB’s LR or ILR status was dependant to a significant extent on his conduct. Moreover, the manner in which he reported its suggested breakdown to the SSHD and in which he reported HB’s suggested abusive conduct to the police were sufficiently unusual that further details about the contents of his statement to the UKBA and his statements to the police should have been obtained by further enquiries and interview before the UKBA relied on them in relation to any of the four decisions I am concerned with. The UKBA should have been as aware as the police were of the potentially self-serving nature of EM’s statements. That police awareness was revealed in the Investigation Record of EM’s complaint that recommended that no further action should be taken. The relevant passage of that report states:

“[HB] stated that she had then told [EM] after the altercation between them on 12 October 2008] that she was going to call the police at which point he left and possibly pre-empted [HB] by going straight to the Police Station. As [BH] has claimed self-defence and there are no injuries or witnesses, a decision was made to release [BH] – No Further Action. [EM] has been updated and is happy with the Police action. I therefore respectfully request that consideration is given to filing these papers UNDETECTED – SUSPECT ELIMINATED – [HB]”

This shows that the police officer who considered whether HB should be charged on the basis of EM’s complaint suspected that his complaint had been made as a means of pre-empting a serious complaint about him being made by HB and he recommended that the papers should be filed with the conclusion that HB should be eliminated from any further enquiries since there was no or insufficient evidence that she was involved in a reportable incident.

[71]Lack of independent police evidence. The only evidence that is adverse to HB in the police documentation are the reports of EM’s unsubstantiated assertions about HB and the breakdown of their marriage. It follows that the evidence emanating from EM in that documentation is evidence of the same type as is described by the decision-maker of the third refusal decision as being evidence that is neither independent nor objective and which in consequence should not be relied on.

[72]However, there is independent evidence in the police documentation which provides some independent support for HB’s evidence that she was assaulted by acts of domestic violence by EM on 12 October 2008. The conclusion of the police officer who interviewed EM was that there was no evidence of his having been injured. This conclusion is to be found in the extract from that police officer’s report that is set out above See paragraph 70 above. . The reference to “no injuries” in that report is a reference to EM having no visible injuries. It is not a reference to HB having no injuries since the police officer who examined EM did not interview or examine HB. She did have injuries however. She showed these to the WPC who interviewed her who did not report on them since she had already decided to release EM and take no further action. However, in the light of the injuries that HB had pointed out to her, the WPC advised HB to see her GP. HB took that advice and her GP examined her the following day and provided a report that clearly and fully describes her domestic violence injuries.

[73]Obtaining documents. Any consideration of the documents that were before the decision-maker needs to have in mind that the police did not produce all the documents that they must have had that related to HB and EM. Although the IDIs envisage an applicant or her solicitor obtaining, and being able to obtain, all material documents relating to an allegation of domestic violence and any counter-allegation by the alleged perpetrator that he had suffered domestic violence at the hands of the applicant, EM’s solicitor was only able to obtain one document out of the many that the police held that related to either HB or EM. There is no mechanism for an applicant to obtain police documents save by the somewhat cumbersome procedure of a Data Protection Act Subject Access request for computerised information held about an individual on the Police National Computer. HB’s solicitor made such a request and this yielded the one document that I have referred to on 14 September 2009. This was a print-out that merely revealed that HB had been arrested for ABH on 13 October 2008 and had been fingerprinted. HB’s solicitor found it impossible to obtain any further documents from the police.

[74]However, the SSHD had more success in obtaining documents from the police. The SSHD is entitled to make a separate request for information about an individual held on the Police National Computer by virtue of section 20 of the Immigration and Asylum Act 1999 and the separate guidelines of the Standing Sub-Committee on the Disclosure of Convictions of the Association of Chief Police Officers that were promulgated at their meeting on 6 May 1998. On 23 October 2009, a case worker from the UKBA General Group Managed Migration Directorate wrote to the Police Central Information Unit seeking answers to a list of questions about documents held by the Police relating to “an incident of alleged domestic violence against HB on “approximately August/September @ 74 Fredas Grove”. None of these questions were answered but the PCIU replied by sending copies of three types of documentation: the Police Station log recording the visits of EM on 2 August 2008 and 12 October 2008; a report of EM’s complaint about HB that he made on 12 October 2008 that is contained in an Incident Report and the notes made in an Investigation Record that were made by the officer who interviewed EM and the separate report in another Incident Report made by the WPC who interviewed HB.

[75]HB and her solicitor were not informed that the UKBA had obtained these documents and they were only disclosed to HB’s solicitor just before the judicial review hearing. It is clear that these were not the only documents that the police held that related to EM’s complaint. The further documents would have included the notes that would have been taken during EM’s interview and the tape of HB’s interview, a form 392 referred to in one of the Investigation Reports, notes passing between the interviewing officers and their superiors relating to the decision to take no further action and the notes explaining the views of HB’s interviewing WPC that HB was not involved in any criminal activity but none of these were sought by the UKBA although all of them must have been in existence and held by the police. Moreover, no attempt was made to find out from the officers who would have visited HB in late August and those who would have visited her in mid-October had those visits taken place whether they had made any notes about those visits. Had those visits occurred, they would have been noted up but no conclusions could be drawn from the absence of disclosure of such notes since no-one was asked to look for them and no-one had given a “nil return” that no such notes existed.

[76]Independent evidence provided by HB. HB provided several items of potentially significant independent evidence. There were the GP’s reports of two visits to her GP that she made on 14 October and 17 November 2008; correspondence with the letting agents of the matrimonial home and a copy of her contract of employment at the Dental Surgery in Swindon that she started to work at on 29 January 2009. Further independent support that she had been attacked by EM on 12 October 2009 and had only bitten EM in self-defence from that attack was provided by the police documentation and what may have been seen to be lies and self-serving statements made by EM about what he alleged to be HB’s adverse behaviour. This is because the lies of one witness about another can be used to corroborate the otherwise uncorroborated evidence of that other witness on the basis that a person who lies about another may be telling those lies to hide the truth being told about that person by the person about whom untruthful statements have been made.

[77]This type of evidential support is particularly relevant in this case where EM and HB were telling diametrically opposed versions of what had occurred during the incident in question. This evidence called for the type of enquiry that was discussed in the IDIs as follows:

“Counter Claims When considering an application for domestic violence, caseworks may receive counter claims from the alleged perpetrator. In some cases these claims may already be on the Home Office file. Counter claims are able to be considered as evidence alongside an allegation for ILR, but where the applicant is able to produce evidence of a court conviction, a police caution or that they are the subject of a MARAC, counter claims should be disregarded. Where the applicant is relying on other evidence that domestic violence has occurred, caseworkers should consider the counter claims. Caseworkers should weigh up the evidence presented by each side and make a judgment as to whether they are satisfied , on the balance of probabilities, that violence has occurred.”

It is regrettable that the evidential balancing exercise that is required when counter claims have to be considered alongside the applicant’s claims was not apparently carried out and was certainly was not described as having been carried out in the decision.

[78]Particular need for a holistic approach and for further evidence and explanations. For all the reasons that I have now set out, there was a particular need for the decision-maker in this case to examine the entirety of the evidence that had been presented from all sides and to evaluate and weigh it up in its entirety and reach a structured decision based on an assessment and weighing up of all the evidence. Fairness suggested that both EM and HB should have been asked for supporting evidence and for an explanation of why there was not more independent evidence and, based on those explanations, a decision should have been taken to interview both of them. Moreover, all documents obtained by the SSHD from EM and the Police should have been immediately disclosed to HB who should have been given an opportunity to comment on that additional evidence. None of these approaches to the evidence were adopted by the decision-maker.

[79]Need for objectivity. Given the failings of the first and second refusal decisions and the existence of the curtailment decision, there was a particular need for the decision-maker deciding the application for the third time to approach that decision with an open mind and with no preconceptions about HB’s veracity when referring to the domestic violence she claimed to have suffered. Unfortunately, the same decision-maker made the third refusal decision as had made the second. The similarity in the reasoning of both decisions suggested that the decision-maker had not shown the objectivity that was needed when taking the third decision. That decision should have been referred to a decision-maker with no previous involvement with HB and her allegations of domestic violence. The Third Refusal Decision

[80]The decision. Thethird refusal decision wastaken byMs Marie Marsh, a senior caseworker in the General Group Managed Migration Directorate who had also been the decision-maker of the second refusal decision dated 11 February 2010. A more junior official in the same Directorate had taken the first refusal decision dated 1 December 2009.

[81]Given the factual detail of the decision that is being challenged by this application, it is necessary to set out the operative parts of the decision in full. I have then commented on each section at the end of the section being commented on. The few passages in italics are passages about which I make no comments.

[82]Section (1) –General approach. “From: UK Border Agency, Sheffield To: Iris Law Firm, Jarrow Date: 14 September 2010 Dear Sirs Re: Mrs Hadis Balakoohi Iran (Islamic Republic of) 12 September 1979 Following your agreement to stay judicial review proceedings, your client’s application has been fully reviewed. However, the Secretary of State is to maintain the decision to refuse the application. … The Secretary of State is not satisfied that you are able to establish that your marriage was caused to permanently break down before the end of the probationary period of 13 September 2009 as a result of domestic violence. Domestic Violence consideration [this passage is set out in paragraph above] (1) To establish a claim of domestic violence, independent and objective documentary evidence must be provided, such as that detailed in the Secretary of State’s published policy in the IDIs at Chapter 8, section 4 ‘Victims of domestic violence’. Submission of documentary evidence was requested by the application form SET(DV) at section 3. It was requested again by the UK Border Agency letter on 5 October 2009. In the light of the approach taken in Ahmed Iran Ishtiaq (EWCH Civ 386), all information and documents submitted have been considered. To: Iris Law Firm, Jarrow Date: 14 September 2010 Dear Sirs Re: Mrs Hadis Balakoohi Iran (Islamic Republic of) 12 September 1979 Following your agreement to stay judicial review proceedings, your client’s application has been fully reviewed. However, the Secretary of State is to maintain the decision to refuse the application. … The Secretary of State is not satisfied that you are able to establish that your marriage was caused to permanently break down before the end of the probationary period of 13 September 2009 as a result of domestic violence. Domestic Violence consideration [this passage is set out in paragraph above] (1) To establish a claim of domestic violence, independent and objective documentary evidence must be provided, such as that detailed in the Secretary of State’s published policy in the IDIs at Chapter 8, section 4 ‘Victims of domestic violence’. Submission of documentary evidence was requested by the application form SET(DV) at section 3. It was requested again by the UK Border Agency letter on 5 October 2009. In the light of the approach taken in Ahmed Iran Ishtiaq (EWCH Civ 386), all information and documents submitted have been considered.

[83]Finding. It is not correct that independent and objective evidence must be provided to establish a claim for domestic violence. As Dyson LJ explains in his judgment in Ishtiaq Paragraph 38 of the judgment set out in paragraph 34 above. , the applicant should be expected to produce evidence of the kind provided for in the IDI guidance. Where such evidence is lacking, the decision-maker should, where appropriate, ask the applicant to produce further evidence which is independent and objective, namely evidence which supports or corroborates the applicant’s evidence but which is derived from a source other than the applicant. If the applicant gives good reasons for not being able to produce it, she should be permitted to rely on whatever evidence she wishes. It will be for the decision-maker, in carrying out the structured decision-making process using all evidence provided, to decide how much weight should be placed upon that all the evidence including evidence which is self-serving or lacking in independence and objectivity. For the reasons detailed below, the Secretary of State is not satisfied that you are able to establish that your marriage was caused to break down before the end of the probationary period as a result of domestic violence. Therefore, you do not satisfy the requirements of the Immigration Rules for this category and it has been decided to refuse your application under the published Immigration Rule 289C with reference to 289(iv) of HC 395 (as amended). In making the decision to refuse your application, consideration has been given to the following: …

In making the decision to refuse your application, consideration has been given to the following:

[84]Section (2) – Reliance on EM’s witness statement sent to the UKBA. (2) In September 2008, Enayat Malvandy notified the UKBA, via his representative, that your marriage had broken down and that you no longer resided together. …

[85]Finding. For the reasons set out in paragraphs [ ] – [ ] above, the decision-maker should not have considered or taken into account the evidence of EM as to when the marriage had broken down. That evidence was inconclusive and lacking in independence and, without good reason, was wholly subjective and potentially deliberately misleading. In any event, the question of when the marriage had broken down involved a complex fact-finding exercise coupled with a value judgment and EM’s views, had they been fully and properly explained, would still have required the independent fact-finding and evaluative exercise of the decision-maker. You allege that domestic violence caused the permanent breakdown of your marriage. Signed SET(DV) application form dated 8 August 2009 At questions 4.3 and 4.4, you state that your marriage broke down permanently in October 2008, and that you have lived separately since that date. In support of claim to Domestic Violence, the following evidence was submitted.

[86]Section (3) – Public Incidence Log 12 October 2008. (3) Public Incidence Log 12 October 2008 The contents of the police incident log have been considered. The report confirms that some of the detail you mentioned in your report suggests that if a domestic violence incident occurred, then you were the aggressor rather than the victim. It suggests further that incidents in which you were the aggressor had occurred before your husband apparently informed the police that “he has reported this three times before”. It does, however, confirm that no person was charged following the incident. The report does not confirm that a domestic violence incident occurred at which you can rely in support of your application.

[87]Comment. This passage seriously misrepresents the evidence contained in the three sources of police documentation concerned with the 12 October 2008 incident that were disclosed to the UKBA by the police. In summary, that material shows:(1) The police ultimately concluded that HB had not been the aggressor and the only violence that she had used was the violence that she had admitted to. Thus, the police’s final conclusion was that HB had bitten EM’s hand but in such a way that it no longer appeared to be injured at the time he was interviewed soon after the incident had taken place. The police appeared to accept HB’s explanation that that violence had been used in self-defence. In other words, the bite had been used defensively to stop EM attacking her. Since her biting was accepted to be administered in self-defence, the corollary of that was that the police officers had accepted that she had used such force as was reasonable to protect herself and had not used any force for an aggressive or violent purpose.

(2) There was no evidence of any previous occasion when EM had reported HB to the police for using aggression towards him. EM was reported to have said in a throwaway remark to the police officer he spoke to on 12 October 2008 that he had reported her 3 times before but no other mention was made of these reporting incidents, no documents were produced to evidence the fact or content of these reports and there appeared to be no justification for the decision-maker to have paid any paid regard to this statement at all.

(3) Not only was no person charged, the police took no further action and the police officer who interviewed EM recommended “undetected - suspect eliminated” that is that there was no evidence that HB had committed any act of aggression towards, or any assault on, HB.

(4) The police evidence showed, if considered with all the other evidence, that a domestic violence incident had occurred. HB was reported by her GP 48 hours after the incident to have bruising which was in shape and colour consistent with having been recently inflicted by domestic violence. That conclusion is supported by evidence which suggested that HB had used defensive violence and no aggressive violence against EM at about the same time as she suffered her bruising.

[88]Section (4) – Timing of breakdown of marriage. (4) In any event, the Secretary of State notes that your marriage had broken down prior to the alleged incident on 12 October 2008. As set out above, Mr Malvandy informed UKBA, via his representative, that the marriage had broken down in September 2008. At the date of the incident, he was living outside the matrimonial home. This is borne out by the police incident log which notes that Mr Malvandy is ‘staying at Kendal Tower@ and only returned to the matrimonial home to ‘get his post’. The log also states that Mr Malvandy advised that you and he were ‘going through a divorce’. For these reasons, the Secretary of State considers that even if your account of the incident is correct, any violence suffered by you did not lead to the breakdown of the marriage, and therefore cannot be relied on in support of the present application.

[89]Comment. The only evidence that the marriage had broken down before 12 October 2008 was the unsubstantiated and questionable evidence of EM to that effect. The finding is based on, but not supported by, these improbable strands:(1) EM’s statement that he was living outside the matrimonial home, a statement borne out by his further statement that he was staying with friends. However, on his own account, EM was staying with friends, he was not living with friends. This is a use of words suggesting that he was a guest and not a resident in the flat. That would corroborate HB’s evidence that he had been staying away from the matrimonial home from time to time so as to avoid conflict and at the suggestion of the police. Furthermore, on EM’s account, he had returned to the matrimonial home to stop over there because his friends’ flat was full of weekend visitors. That suggested that he was temporarily sleeping at that other flat, had not moved in and was returning to his own home because the bed he was temporarily occupying was wanted by his hosts.

(2) EM’s statement that he was going through a divorce. This statement was untrue, there was no evidence that a divorce had then been initiated or, indeed, was ever initiated. This apparently incorrect statement points to the unreliability of his statement about the state of his marriage.

[90]There was other objective evidence that the marriage had not broken down by September 2008. This included evidence that the rent of the joint tenancy was paid by EM until the tenancy expired in February 2009 and EM’s correspondence in mid-October to the letting agent which is more consistent with the marriage subsisting than having come to an end. Moreover, EM had failed to give any details of why the marriage had come to an end, when he contended that this had happened, what the basis of his staying at his friends’ flat was and the terms on which he was staying there were, when he moved all his belongings out of the matrimonial home and why he was able to “sleep over” at the matrimonial home from which, on his account, he had previously vacated fully and finally in acrimonious circumstances.

[91]Section (5) – GP’s evidence. Letter from Harborne Medical Centre dated 17 September 2009. (5) This letter enclosed a copy of your medical consultation of 14 October 2008 where you alleged to your GP that you had suffered Domestic Violence at the hands of your husband, 2 days prior to the consultation, i.e. 12 October 2008. The print out states that purples bruising was noticed to your left buttock and right calf. Bruising was also noted to your right tricep. Although the GP records that the bruising is an ‘incomplete oval/finger shaped’, the bruising has not been confirmed as resulting from Domestic Violence. The GP made this record entry based on what your client told him. It is considered that the fact that the GP identified the bruising as being oval/finger shaped is a result of your assertions, rather than any independent verification exercise. There is no suggestion that the GP attempted to verify your claim, or that s/he was qualified to do so. Accordingly, this does not confirm Domestic Violence has taken place. It does not constitute independent evidence to support your claim. It merely states that you allege domestic violence. The Secretary of State notes further that, as set out above, even if your account of the incident on 12 October 2008 is correct, it cannot support the present application as it post-dates the breakdown of the marriage.

[92]Comment. There is no basis for the conclusions that:(1) The description of the injuries that the GP had typed into the computerised notes were entirely based on the description of them provided by HB and the GP did not inspect or independently verify that those injuries were present;

(2) The GP was not, by the wording of the notes, verifying that the shape of the bruise was consistent with having been administered by an act of domestic violence. Instead, the GP was merely reporting what HB had told the GP without herself checking that the bruising was consistent with having been inflicted by domestic violence;

(3) The GP was not qualified to express an opinion that the injuries had been inflicted by domestic violence; and

(4) The notes merely assert that HB was alleging that she had suffered domestic violence, they provided no independent corroboration that HB had actually suffered it.

[93]The reality is that the notes were stating the opposite of what the decision contends they were stating. They recorded the GP’s physical and visual examination of her patient in her own words, they were confirming that the relevant bruise was of a shape, location and colour that was consistent with domestic violence and they were recording the GP’s opinion, based on the entirety of the consultation and examination, that HB had suffered domestic violence.

[94]A GP is, by training and by what he or she often does, particularly in deprived urban areas, highly qualified to form a professional judgment as to whether injuries presented by patients and more general complaints of behaviour experienced and suffered by them relate to domestic violence. Thus, when the purpose of the visit and the complaint is described in the notes as “domestic violence”, that is not merely a paraphrase of how the patient had introduced her complaint but is the considered judgment of the GP reached at the conclusion of the consultation and examination. It would be grossly professionally incompetent for a GP to act in the way suggested by the decision-maker and there is no justification for reaching the conclusions expressed.

[95]The decision-maker has wholly ignored the notes of HB’s second visit to the practice for a review on 17 November 2008. The notes suggested that HB continued to be the victim of domestic violence and that that violence had included psychological and emotional violence which had caused the patient to lose her confidence and to affect her blood pressure. The GP recommended domestic violence counselling, which a GP would not recommend unless she considered that the patient needed this, and also the use of anti-depressants to counteract the perceived on-going effects of the wider domestic violence that the GP perceived that HB had suffered.

[96]Section (6) – Comments noted. (6) However, the contents of the consultation comments have been noted.

[97]Comment. This statement is merely paying lip service to the guidance provided by the Court of Appeal in Ishtiaq. The decision-maker is politely saying that the consultation comments are being ignored. Instead, the decision-maker should have taken the comments at face value and have factored them into the decision unless there was good reason for considering them to be erroneous. In fact, for the reasons already given, these comments where highly relevant and provided objective and independent support that HB had suffered sustained domestic violence that included, but was not limited to, an act of significant physical domestic violence on about 12 October 2008.

[98]Section (7) –HB’s personal statement. Your Personal Statement dated 10 September 2009 (7) You state the domestic violence began following serious arguments relating to your husband’s suspicious attitude towards you. You then state that verbal aggression turned to physical violence, and that your husband hit you several times from July 2008 and your final separation in October 2008. Following an argument in October 2008 the police were contacted by your husband, and you attended the Police Station to provide further information.

Your Personal Statement dated 10 September 2009

[99]Comment. The decision-maker refers to HB’s evidence that she had been subjected to sustained domestic violence of all kinds, including psychological, financial and emotional violence. HB had stated that she had been subjected to intense jealousy, to being banned from education, which is why she came to the UK in the first place, to being forbidden from leaving the matrimonial home and socialising and to frequent bouts of verbal and, more recently, physical aggression and violence. All these complaints related to domestic violence which it would be very difficult to provide independent verification of. If the decision-maker was sceptical, further evidence should have been sought and an interview should have been arranged.

[100]Section (8) – Banned from the property. (8) You mention that your husband was banned from the property without prior arrangement with yourself. Such statements must be substantiated by independent and objective documentary proof such as that detailed in the Secretary of State’s published policy in the IDI at Chapter 8. You have not provided any independent evidence that your husband was banned from the property, or that such a ban was as a result of domestic violence towards you.

[101]Comment. The decision-maker is referring to HB’s evidence that the police advised EM during their visit to the matrimonial home that had occurred soon after her visit to the police station on 13 October 2008 to inform her that EM had been advised that he should not visit the matrimonial home without prior arrangements and that she could obtain an injunction to prevent his return if she wanted. It is incorrect that that evidence had to be disregarded unless it had been supported by independent and objective documentary proof. The visit was of a type that the police officers would not have recorded. The visit appears to have been a follow-up to HB’s experience in the police station on 13 October 2008 and what was said amounted to helpful and informal advice being given of the kind described in the medical notes as “police supportive”. It would not have been recorded in any of the types of document that the decision-maker refers to, namely the official documents referred to in the IDIs. Thus, since there was no documentary corroboration available, HB was entitled to refer to this visit and her description of the advice as amounting to EM being banned from the matrimonial home was an informal but graphic paraphrase of the advice she had been given. The decision-maker should have taken both the fact that the advice had been given and the fact that EM had been “warned off” the matrimonial home into account in the decision-making process

[102]Section (9) – The August incident and the Women’s Counselling Centre. (9) The statement, whilst it relays the events, does not constitute evidence that domestic violence has occurred and has caused the breakdown of your marriage. No independent verification of the information is provided. In particular, it is noted that no police record is provided of the claimed incident that took place in late August – September 2008, despite the fact you claim that the police were called and attended the scene. Moreover, the Secretary of State notes that no independent verification is provided of your claimed contact with Women’s Aid/the Women’s Counselling Centre. Such statements which merely relay unfounded reports are not acceptable as they are not independent or objective.

[103]Comment. This is a further example of relevant evidence being disregarded on the erroneous basis that evidence that is not independently verified may not be considered by the decision-maker. No adverse inference could be drawn from the absence of a police report of the visit to the matrimonial home in August – September 2008. There had not been a sufficiently comprehensive search for relevant documents and, in any event, it is possible that the visit was not logged as an incident even if it had taken place. The evidence of taking counselling from the Women’s Centres is corroborated to some extent by the GP’s notes where it is recorded that the GP advised HB to use one or other or both Centres and that the GP gave her their telephone numbers.

[104]Section (10) – Visit to police station on 2 August 2008 and statement of 4 September 2008. (10) The Secretary of State notes that Enayat Malvandy attended the Police station on 2 August 2008 stating that he had recently married Hadis Balakoohi and that her parents had arrived in the UK on a 2 year visa and were staying with him and his wife. Enayat Malvandy alleged that he overheard Hadis Balakoohi tell her parents that she only married him to get her visa. Enayat Malvandy informed the police that he was frightened of his father-in-law. In a statement dated 4 September 2008 to his representative Mr Malvandy stated that the relationship was no longer subsisting and that he did not intend to live with you as his spouse any longer.

[105]For reasons already set out at length, the decision-maker should have placed no weight on EM’s suggestion that the marriage had broken down before 4 September 2008 and there was no independent or objective evidence that the statements he made to the police on 2 August 2008 were true. The decision-maker should have considered whether both statements were credible and, if they were not, have considered whether their inherent untruthfulness corroborated HB’s evidence. Otherwise, the decision-maker should have considered that no weight should be placed upon them.

[106]Section (11) – Biting incident. (11) On 12 October 2008, Enayat Malvandy informed the Police that he had been bitten by his ex-wife on his right hand when he attended the marital address of 74 Fredas Grove to collect his post. Enayat Malvandy was living at an undisclosed address at Kendal Tower, at the time of the alleged assault. This information is confirmed in the Police crime report provided to the UKBA by West Midlands Police. Police noticed reddening of the skin at the site of the alleged bite.

[107]It has already been commented that this summary misstates the evidence disclosed by the police documentation. The statement’s unreliability is further shown by it misstating the evidence in a significant respect. The evidence shows that EM did not refer to HB as his ex-wife but instead referred to her as his estranged wife. Moreover, EM was not, on his account, living at Kendal Tower but instead was staying there and the address was not undisclosed, he had disclosed it to the police and it is in the log (albeit that the flat number is redacted in the version disclosed to the UKBA). Furthermore, the police did not notice reddening, the conclusion in the Incident Report was that there were no visible injuries of any kind. In any case, HB willingly admitted the bite and her explanation that it was defensive and not aggressive and had been administered to counter EM’s domestic violence is independently supported by the reliable evidence of the police taken in conjunction with the GP’s logs of HB’s two visits to the GP.

[108]Section (12) – Incident of 13 October 2008. (12) On 13 October 2008, Hadis Balakoohi attended the Police Station and was arrested for the assault of Enayat Malvandy. During interview, she admitted to causing the injury to Enayat Malvandy but stated she had acted in ‘self-defence’ after Enayat Malvandy had punched her. She stated that she had informed Enayat Malvandy that she was going to call the Police at which point he left. No further action was taken in relation to this incident.

[109]Comment. This summary of the WPC’s investigation report does not take account of the Investigation Record. If both are taken together, the summary provided by the decision-maker which suggests that HB was in fact the aggressor and was lucky to “get away with it” is an unfair and inaccurate summary since the overall impression conveyed by the evidence is that the police ultimately considered that HB was the victim and EM was the aggressor and that he was lucky to “get away with it”.

[110]Section (13) – Date of marital breakdown (13) The Secretary of State notes that in a statement dated 4 September 2008 to his representative Mr Malvandy stated that the relationship was no longer subsisting and that he did not intend to live with you as his spouse any longer. Accordingly, the incident that took place on 12 October 2008 apparently occurred after the breakdown of the marriage. Therefore, on the evidence provided, it cannot be said that the marriage has broken down as a consequence of domestic violence.

[111]Comment. In order to reach a conclusion as to the date by which the marriage had broken down, all the evidence should have been considered. There was much other evidence which should have been evaluated and the weight to be given to the statement 4 September 2008 should also have been considered. If all that evidence is considered, and proper weight (i.e. no or negligible weight) is given to EM’s statement, it is impossible to conclude that the marriage had broken down before the incident on 12 October 2008 or that the marriage had not broken down as a consequence of domestic violence. That conclusion is irrational or, in judicial review terms, one that no reasonable decision-maker who had correctly instructed herself could have reached.

[112]Section (14) – Conclusion. (14) All the documents you have provided have been carefully considered. However, the Secretary of State is not satisfied that Hadis Balakoohi has successfully demonstrated that she has been the victim of domestic violence, or that domestic violence caused the breakdown of her marriage. Therefore the decision to refuse the application has been maintained following a reconsideration. Yours sincerely, Marie Marsh, Senior Caseworker General Group Managed Migration Directorate” Marie Marsh, Senior Caseworker General Group Managed Migration Directorate”

Marie Marsh, Senior Caseworker

[113]Comment. It is clear that all the documents had not been carefully considered. Much of HB’s evidence had been disregarded because it was regarded as lacking in independence and objectivity. Surprisingly, EM’s evidence, which was devoid of both of these qualities, was accepted in its entirety and without any apparent doubt as to its veracity, objectivity or independence. No further enquiries were addressed, as they should have been, to HB and EM and HB was not called in for an interview as she should have been. Conclusion

[114]Conclusion. The SSHD’s third refusal decision dated 14 September 2010 should be quashed on four separate but cumulative grounds. Firstly, the decision was unlawfully arrived at because the decision-maker in reaching that decision failed in a number of respects that are identified in this judgment to follow the guidance provided by the IDIs and by the Court of Appeal in Ishtiaq. In particular, the decision-maker seriously misstated the guidanceas to the evidence that should be considered when a paragraph 289A decision is being made, how that evidence should be evaluated and how the resulting decision-making process should be structured.

[115]Secondly, the decision took into account a number of matters that it should not have taken into account and it failed to take into account a large number of matters that should have been taken into account by the decision-maker. In other words, the decision was Wednesbury unreasonable.

[116]Thirdly, the findings of fact that no domestic violence occurred and that such domestic violence as did occurred was confined to a single incident that occurred on 12 October 2008 and that that domestic violence, if it occurred, did not cause the marriage to break down because the marriage had already broken down before that date were irrational and perverse.

[117]Fourthly, the decision was procedurally flawed in two respects. Firstly, it relied on significant factual material that had been obtained by the SSHD from EM and the police but the SSHD did not inform HB that it had this material, did not provide copies of it to HB and did not invite HB to submit comments about the material or further evidence in response before the decision was made and sent out. Secondly, it was taken by the same decision-maker who had taken the second withdrawn refusal decision who did not act, and was objectively perceived not to have acted, in an objective and fair way when taking the third refusal decision.

[118]In those circumstances, the decision should be quashed. The SSHD must now, for the fourth time, make a decision about HB’s paragraph 289A application dated 8 September 2009.

[119]Delay. I am most concerned at the delay that has now occurred between the incidents of alleged domestic violence and the determination of HB’s application. The domestic violence allegedly occurred and the marriage allegedly broke down in 2008 nearly four years ago. The paragraph 289A application was submitted on 8 September 2009, nearly three years ago. I draw attention to this statement on the Request for Disclosure of Personal Data form sent out by the SSHD to the Police Central Information Unit on 23 October 2009:

“Please note that the Rt Hon Baroness Scotland, Minister responsible for domestic violence issues, has given a commitment that domestic violence immigration applications will be decided within 4 – 6 weeks.”

[120]It is hard to see how HB can now have a fair, dispassionate and objective consideration of her application nearly 4 years after the alleged domestic violence occurred. It is to be hoped that, with that in mind, the SSHD will give early consideration to granting HB ILR without the necessity of a full decision-making process or the submission and examination of further evidence. This is particularly important in HB’s case since she will not have the opportunity of an appeal to the First Tier Tribunal in the event of her application being dismissed so she would not obtain a rehearing of her application at which live witnesses could be called and cross-examined.

[121]Declaration. I will grant a declaration as follows: The SSHD may not rely in any future consideration of HB’s paragraph 289A application on:(1) the fact that HB’s LR was curtailed by the curtailment decision of 20 January 2009;

(3) the fact that notification of the curtailment decision was not served on HB;

(4) the fact that no notice of appeal was lodged against the curtailment decision; and

(5) the fact that HB did not respond to the one-stop notice that was served with the curtailment decision. Decision

[122]The parties are invited to agree a form of order which can be made when this judgment is handed down. If that can be agreed, the appearance of the parties and their representatives at the handing down is dispensed with. If an appearance is necessary, I will permit either party’s legal representative to attend the hearing by means of a telephone link if that is arranged by that legal representative prior to the hearing. HH Judge Anthony Thornton QC

Balakoohi, R (on the application of) v Secretary of State for the Home Department [2012] EWHC 1439 (Admin)

Signed [EM]

In making the decision to refuse your application, consideration has been given to the following:

Your Personal Statement dated 10 September 2009

Marie Marsh, Senior Caseworker

Cited in 2 later judgments