AT, R (on the application of) v Secretary of State for the Home Department [2017] EWHC 2589 (Admin)

Case No CO/5672/2016

[2017] EWHC 2589 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

ADMINISTRATIVE COURT

The Courthouse

1 Oxford Row

Venue Leeds

Date Wednesday, 18 th October 2017

West Yorkshire

LS1 3BG

2pm – 3.30pm

Before

THE HONOURABLE MR JUSTICE KERR

Between

AT, R (on the application of)Claimant

Secretary of State for the Home DepartmentDefendant

B E T W E E N:

THE QUEEN (ON THE APPLICATION OF AT)

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Transcript from a recording by Ubiqus

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This transcript has been approved by the judge.

MS LUCY MAIR appeared on behalf of the Claimant

MR GWION LEWIS appeared on behalf of the Defendant

JUDGMENT

This Transcript is Crown Copyright. It may not be reproduced in whole or in part, other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.

If this Transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.

Introduction

[1]This is the first judicial review challenge to be made under new legislative provisions applying in cases where an application for leave to remain in this country is made by a spouse or partner who claims that her marriage or relationship has broken down as a result of domestic violence. Where such an application is refused by the defendant (the Secretary of State) the new provisions removed, with effect from 6 April 2015, the right of appeal to the First-tier Tribunal and replaced it with a right of administrative review.

[2]There are two grounds of challenge. They were advanced in support of a claim brought on 8 November 2016. The claimant had applied for indefinite leave to remain, claiming that her marriage to a British citizen had broken down as a result of domestic violence. Her application had been refused by the Secretary of State and an administrative review of that decision led to the same result and was unsuccessful.

[3]When the claim was filed the claimant was about to be removed from this country on a flight to Pakistan. His Honour Judge Bird, sitting as a High Court Judge, granted urgent interim relief the same day, prohibiting her removal. He also granted an anonymity order which remains in place. The claimant must be referred to only as ‘AT’. Permission to apply for judicial review on both grounds was then granted on the papers by Gilbart J on 2 February 2017.

[4]Taking the grounds of challenge in reverse order, the second ground is that removal of the right of appeal and its replacement with a right to an administrative review is irrational and thus unlawful. The claimant seeks an order quashing the words in paragraph AR3.2(c)(xiii) of Appendix AR to the Immigration Rules creating an exception to the right of appeal. Those words are, ‘… not where an application is made under… section DVILR (domestic violence)’.

[5]It was eventually agreed at the hearing that if that second ground were to succeed, the effect would be that the claimant would have a right of appeal to the First-tier Tribunal against the refusal of her application for indefinite leave to remain. That being an effective remedy, it would be unnecessary to address the first ground, which is a conventional irrationality challenge to the legality of the Secretary of State’s decision to refuse the application for indefinite leave to remain, both initially and on administrative review.

[6]If that first ground should fail, the claim would be dismissed. If it should succeed, it was agreed at the hearing that the decision of the Secretary of State refusing the application for indefinite leave to remain, and the administrative review decision to the same effect, should both be quashed, and the application for indefinite leave to remain remitted to the Secretary of State for reconsideration. The Secretary of State floated in her skeleton a different alternative remedy argument, but it was not pursued in oral submissions on her behalf made by Mr Lewis.

The Facts

[7]AT is a national of Pakistan born in July 1992. Her husband is ‘UZ’, a British national. AT arrived in this country on 25 June 2013 with entry clearance for six months as the fiancée of a British citizen. In or around September or November 2013, (AT and UZ cited different dates), they were married at a civil ceremony in Oldham. On 25 November 2013, AT applied for leave to remain as the spouse of a British citizen. That application was granted on 7 January 2014 with leave to remain for two and a half years until 7 July 2016.

[8]According to AT’s later statement, she loved UZ very much at first, but the marriage deteriorated rapidly from about January 2014 in circumstances that she later contended (but the Secretary of State disagreed) amounted to domestic violence, according to the wide definition of that term which includes coercive and controlling behaviour and the infliction of psychological as well as physical injury.

[9]AT’s later statement describes the course of that conduct, in the period from about January to September 2014. She alleged in her statement that in September 2014, UZ’s father whom she accused of complicity in UZ’s harmful conduct towards her, arranged with his son UZ to get AT back to Pakistan. AT asserted in that same later statement that although it was said to her at the time that she would be returning to UZ, the plan was really to leave her in Pakistan and ‘not bother about me anymore’.

[10]This account contrasts sharply with an account, given by UZ in a letter in March 2015, of the first year or so of their marriage. According to him, it was AT who bullied and belittled UZ, calling him worthless because he is disabled. He said she never loved him, frequently insulted him and had used him and the marriage to gain entry to the UK, cheating both him and the Home Office. He said AT had told UZ’s father that she no longer liked living in this country and wished to go back to Pakistan.

[11]Whatever the true position, it is common ground and clear from the parties’ documents later considered by the Secretary of State’s decision maker, Miss K Seed, that AT left the UK for Pakistan on 23 or 24 September 2014 and returned to the UK on 5 February 2015. According to UZ, she was accompanied by UZ’s father on the outward journey.

[12]AT said in her later statement that on her return, she returned to UZ’s house where she was shouted at and abused by UZ and his family, but UZ in his later letter claimed that AT had returned to the UK ‘of her own accord’, concealing her arrival from him and his family; and that he suspected she was living clandestinely in the Bolton area.

[13]There was therefore a clear dispute between them in the documents over whether she returned or attempted to return to UZ at his house after arriving back in the UK. What is clear is that on 3 March 2015, about five and a half weeks after her return from Pakistan, UZ wrote a detailed letter to the Home Office giving his account, which was as I have just narrated, also asserting that the relationship had broken down irretrievably and that he intended to apply for a divorce; and expressing the hope that the Home Office would remove her from this country.

[14]I am told that the Secretary of State gave some sort of assurance of confidentiality to UZ about the contents of that letter. But since the letter was later considered by Miss Seed on behalf of the Secretary of State, I felt I had to order its production at the hearing to decide the first ground fairly. AT and her advisers first had sight of that letter two days ago, on the first day of the hearing before me.

[15]A number of events can be discerned from documents subsequently placed by AT before the decision maker in support of her application. Probably on 1 May 2015 (rather than 2016 as stated, the year probably but not certainly being an error) AT visited her GP and complained of ‘low mood and stress for [three] months’ and also insomnia and low energy levels, and that she was tearful. She was commenced on anti-depressants at that time.

[16]On 24 November 2015, the Home Office responded to UZ’s letter of 3 March. In its response, the Home Office sought UZ’s permission to include the information given in UZ’s letter for the purpose of deciding whether to curtail AT’s leave to remain in the UK. UZ gave that permission. Two days later, on 26 November 2015, he signed a declaration to the effect that his relationship with AT ‘no longer subsists… I do not live with her and… I do not intend to live with her as my spouse in the future’. He confirmed that they had no children.

[17]On 3 December 2015, the Secretary of State wrote to AT informing her that her leave to remain had been curtailed and would now expire on the earlier date of 6 February 2016. A document subsequently relied on by AT shows that in or about January 2016, she began working in the customer service department of a company called Nusuki UK Ltd.

[18]On 1 February 2016, that is, five days before her curtailed leave to remain was to expire, she went to visit her GP again. She complained of low mood and ‘issues around her marriage’. The subsequent GP’s letter states that, ‘[a]ccording to the medical records she disclosed husband shouting at her, feeling weepy isolated poor eating, difficulty initiating and maintaining sleep’. The letter records that she was re-started on the same anti-depressants as before and advised to continue taking them for at least six months; and that she was also referred for counselling. The letter records that as at 1 February 2016, AT told the GP that she was ‘attending counselling sessions regularly’.

[19]The curtailed leave to remain, as I have said, expired on 6 February 2016, five days later. Shortly before 4 May 2016, a few months after that, AT reported some kind of domestic incident to the police. In consequence, a visit was paid to her address on 4 May 2016 by a police officer from the Domestic Abuse Unit of Greater Manchester Police. A ‘PPI’ (public protection investigation) reference was generated, but no crime reference. The police wrote a letter to AT the same day recording the report of a ‘domestic incident’.

[20]Nothing further came of that matter and there is no evidence of any further police involvement. According to a letter of 16 May 2016 from AT’s counsellor, a Ms Hussain, the counselling mentioned to the GP as having been ongoing as at 1 February 2016, was still ongoing in May 2016. Ms Hussain recorded that AT had been undergoing cognitive behavioural therapy (CBT) after being referred by her GP because she had been ‘suffering with anxiety and panic attacks’. Ms Hussain recorded in her letter that AT had attended ‘a few sessions now’ and had ‘engaged well in the therapy’. AT clearly reported what she described as domestic abuse to the counsellor, who formed the opinion that she had indeed been a victim of domestic abuse and said so in her letter.

[21]On 15 June 2016, AT’s aunt, a Ms Shaheen, wrote a letter stating that she, Ms Shaheen, had been told by AT of the latter’s distress and suffering, resulting from conflict with her husband. The letter written by Ms Shaheen was broadly, and in some cases in matters of fact and detail, consistent with AT’s account in her own later statement. The same is true of a letter provided on 18 June 2016 by a friend of AT, a Ms Khan. AT herself signed her statement supporting her application for leave to remain on 27 June 2016. The GP’s letter to which I have already referred was signed three days later.

[22]Armed with that written evidence, AT submitted her application for indefinite leave to remain, apparently on 4 July 2016. The application was submitted on a form SET(DV) available from the Home Office website. It was supported by the documents recording the information that I have just mentioned. It was submitted, considered and refused. The decision letter and reasons were dated 27 July 2016. The reasons given were briefly these.

[23]It was said that AT had visited Pakistan on 24 September 2014, returning to the UK on 5 February 2015; that there was no indication that AT had moved back into her marital home on her return; that her husband had informed the Home Office of the permanent breakdown of the relationship on 3 March 2015 and confirmed that in a later public statement; and that, ‘[t]herefore it is considered on balance of probabilities that your relationship broke down permanently while you were in Pakistan…’.

[24]The statement of reasons continued with a reference to the statement of AT, with the comment that there was an absence of ‘any corroborating and contemporaneous evidence to the events that you claim…’. The decision maker then stated that it was not considered that the statement alone was sufficient to establish that the relationship was ‘caused to permanently break down as a result of domestic violence’.

[25]The rest of the letter consisted of a commentary on the supporting statements of the GP, the counsellor, the employer, the letter from Greater Manchester Police (which was described as ‘generic’) and the statements from Ms Shaheen and Ms Khan. The comments that were made on that evidence were followed by the concluding paragraph setting out the reasons which was as follows: ‘Although all of the evidence that you have submitted has been carefully considered individually and in the round it is concluded that you have not submitted evidence which demonstrates to the standard of on balance of probabilities that your relationship has permanently broken down within your 30 months leave to remain as a partner … because you have been the victim of domestic violence’.

[26]AT applied for an administrative review of that decision, supported by a statement which included the new point that her husband had:

‘only reported about th[e] breakdown of her marriage as she threatened to contact the police. The Applicant had encounters with her husband on many occasions since returning to the UK in February 2015. The Applicant did not disclose this as she was unaware whether her husband had reported her to the Home office. Whilst the Applicant was threatening to contact the police, her husband threatened to contact the Home office. It is her understanding that he may have fabricated an account of events to have her deported. The Applicant was given hope that the marriage will work on many occasions and that her husband will change. The Applicant held on to this false hope and delayed taking any counselling or seeking assistance from others including the police until earlier this year, although, the applicant discussed much of this with her in-laws in the hope of resolving issues. The Applicant avers that her husband prolonged matters and was “playing games” with her’

. She also suggested that the respondent might have requested further information from the police about the incident she had reported.

[27]The application for administrative review was unsuccessful. In the statement of reasons for that decision, it was: ‘acknowledged that you were hopeful that the marriage would work and that your husband would change, and for this reason you delayed in seeking assistance from the police or seeking counselling. However, you stated on your application form that your marriage broke down in June 2016 although your former partner notified the Home Office that your marriage broke down on 3rd March 2015’.

[28]As regards the suggestion that the police be contacted, it was said that this would not have been felt necessary and that the decision maker had, ‘sufficient evidence in order to make an effective decision’.

Relevant Law

[29]In recent years, the procedural law relating to what are called human rights claims in the context of immigration and asylum law has changed. Under the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) ‘a human rights claim’ is defined in section 113 as:

‘a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom or to refuse him entry into the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998… (public authority not to act contrary to Convention)’

. That definition has not changed materially, for present purposes; it is a constant.

[30]The first round of changes relevant to this claim occurred in June 2012. Many immigration decisions were then subject to a right of appeal to the First-tier Tribunal (Immigration and Asylum Chamber) (the FTT). If the claim was a ‘human rights claim’, the right of appeal could be exercised in this country and need not be exercised outside it; see the versions of the 2002 Act, in force until 19 October 2014, of sections 82, 84(1)(c), 92(1) and 92(4)(a). There was an exception to the right of appeal in this country if the Secretary of State certified that the human rights claim was clearly unfounded: section 94(2).

[31]On 13 June 2012, a new version of the Immigration Rules (made under section 3 of the Immigration Act 1971) was laid before parliament. One of the avowed purposes was to reform the treatment of human rights claims, particularly those relying on

article 8 of the European Convention

. The idea was that the new rules:

‘will fully reflect the factors which can weigh for or against an Article 8 claim. The rules will set proportionate requirements that reflect the Government’s and Parliament’s view of how individuals’

Article 8 rights should be qualified in the public interest to safeguard the economic well-being of the UK by controlling immigration and to protect the public from foreign criminals. This will mean that failure to meet the requirement of the rules will normally mean failure to establish an Article 8 claim to enter or remain in the UK, and no grant of leave on that basis. Outside exceptional cases, it will be proportionate under Article 8 for an applicant who fails to meet the requirements of the rules to be removed from the UK.’

[32]In ‘family member’ or ‘FM’ cases, the article 8 balance would normally be struck by applying the provisions of Appendix FM to the Immigration Rules. The purpose was repeated in paragraph GEN.1.1 at the start of Appendix FM. Among the classes of case covered are cases where the person applying for indefinite leave to remain claims to be a victim of domestic violence. The section is called, ‘DVILR’.

[33]Among other things, the alleged victim has to, ‘provide evidence that during the last period of limited leave as a partner of a British citizen or a person settled in the UK … the applicant’s relationship with their partner broke down permanently as a result of domestic violence’ (E-DVILR.1.3).

[34]I shall refer to a case of this type as a ‘domestic violence’ case or claim, as a convenient shorthand. In this case, there is a disagreement between the parties over whether a domestic violence case is necessarily always a ‘human rights claim’ within section 113 of the 2002 Act. Certainly, domestic violence claims were classified in Appendix FM in 2012 as claims falling within that appendix, which dealt with claims considered to raise Article 8 issues.

[35]The next round of reforms with which I am concerned took effect in 2014 and 2015. The purpose was to reduce substantially the scope of decisions against which there was a right of appeal, and to substitute in those cases a right of administrative review, described at the time as a means of correcting simple errors.

[36]The 2002 Act was amended accordingly, but there was still a right of appeal (see section 82(1)(b), as amended from 20 October 2014) against a decision to refuse a human rights claim, as defined in section 113. Under section 84(2), as amended from 20 October 2014, such an appeal has to be ‘brought on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998’.

[37]Those decisions where the route of challenge is now administrative review are dealt with in Appendix AR to the Immigration Rules. ‘AR’, indeed, stands for ‘Administrative Review’. In that appendix they are called ‘eligible’ decisions’. From 6 April 2015, the list of ‘eligible’ decisions was expanded. From that date it included, among other things ‘[a] decision … on an application for leave to remain … unless it is an application as a visitor, or where an application or human rights claim is made under … (viii) Appendix FM (family members), but not where an application is made under … section DVILR (domestic violence)’.

[38]That quote is from Appendix AR, paragraph A3.2(c), which goes on to state that in such cases, i.e. where a human rights claim is made in a case falling within Appendix FM that is not a domestic violence case, the remedy remains in appeal under section 82 of the 2002 Act rather than an application for administrative review. So, the provision now made in Appendix AR appears to be that in a domestic violence case, administrative review only is available even if the domestic violence case is a human rights claim.

[39]But that is not the law enacted in primary legislation, since section 82 provides, as I have already noted, that there is a right of appeal, not only administrative review, where the Secretary of State refuses a human rights claim. It might be said, therefore, that the primary legislation is at odds with the latest version of Appendix AR in relation to treatment of domestic violence cases that are also human rights claims. To the extent that this were the case, the inconsistent parts of Appendix AR would appear to be ultra vires.

[40]The claimant says that they are irrational, since domestic violence cases are by their nature also human rights claims, but the Secretary of State begs to differ. She says that most domestic violence cases are not human rights claims.

[41]Just to make the law more interesting, the commencement orders accompanying the amendments to the 2002 Act have further muddied the waters. The Immigration Act 2014 (Commencement No. 3, Transitional and Saving Provisions) Order 2014 was the first of these. It dealt in the usual way with the introduction of the amendments made to the 2002 Act, which I have already mentioned. However, unusually it also included article 11(5) which at (a) stated that in article 11: ‘“human rights claim” means- (i) a claim by a person to the Secretary of State that to remove the person from or require him to leave the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998… or (ii) an application for leave to remain made under … Appendix FM to, the immigration rules’.

[42]That provision appeared to expand the definition of a human rights claim found in section 113 of the 2002 Act by adding to it the words in (ii) that I have just quoted. That commencement order was made on 15 October 2014. It was short-lived and rapidly superseded by a further commencement order made on 6 April 2015. That was the date on which the operative amendments to the 2002 Act came into effect.

[43]The fourth commencement order (the Immigration Act 2014 (Commencement No. 4, Transitional and Saving Provisions and Amendment) Order 2015) included a provision within article 8 which deleted article 11(5)(a) of the Commencement Order No. 3, thereby bringing the definition of a ‘human rights claim’ back into line with that found in section 113 of the 2002 Act.

[44]The clarity of the law would be enhanced if the legislature did not enact commencement orders that seek to amend primary legislation. This is not a good idea and I hope not to have to consider again in my judicial career a commencement order like the short-lived Commencement Order No.3. Such orders are supposed to deal with the coming into effect of primary (or secondary) legislation and with transitional provisions and the like. It appears from Commencement Order No.4 that the Secretary of State has belatedly appreciated this.

[45]There is a further twist to the provisions which make it extremely difficult for a domestic violence victim to navigate even with expert representation, which many such victims do not enjoy. That is found in paragraph 34 of the Immigration Rules. It provides that there are requirements for a ‘valid application for leave to remain in the UK’ and states that such an application must be on an application form which is specified for the relevant immigration category under which the application is made, and found on the relevant government website.

[46]In the present case, there was a specified form on the website which was called SET(DV). That is the form specified for use in an application for indefinite leave to remain as a victim of domestic violence. That is indeed the form that was used by the claimant. There is also a further specified form to be used for any application for leave to remain on the basis of family life as a partner or parent, or on the basis of private life, i.e. in a human rights claim. That form is called FLR(FP). The claimant did not use that form, either instead of or in addition to form SET(DV).

[47]Mr Lewis, for the Secretary of State, generously accepted in oral argument that use of the wrong form would not of itself defeat an application. I agree that it should not. Less generously, however, he did suggest that a person wishing to apply for indefinite leave to remain in a domestic violence case which is also a human rights claim, should file two separate applications, which means paying two separate fees, one using SET(DV) and the other using form FLR(FP).

[48]Although the point does not arise directly for decision in this case and was not fully argued, I do not agree that to require domestic violence victims to make two separate applications in a case said by the victim to be a human rights claim, is necessary, fair or lawful. Any such requirement would almost certainly discriminate indirectly against women who bear the brunt of most domestic violence. Why should they pay two fees when others pay only one?

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

Ground 2: Challenge to Amendments to Appendix AR

[50]The claimant asks me to quash the words in Appendix AR which provide for administrative review rather than appeal to the FTT in a domestic violence case that is also a human rights claim. She says, through Ms Mair, that it is irrational for the Secretary of State to include domestic violence cases within Appendix FM but exclude them from human rights claims that in Appendix AR are excepted from the range of decisions where administrative review and not appeal is the remedy.

[51]Ms Mair submits that all domestic violence claims are, inherently and necessarily, also human rights claims within section 113 of the 2002 Act. Mr Lewis disagrees; he says that some are, but most are not. He says that while there is an overlap, many, indeed most domestic violence claims are not human rights claims within the statutory definition.

[52]In support of these competing contentions, I was treated to a plethora of citations of materials, domestic and international, evidence given to a House of Commons committee, two statements in the House of Commons, explanatory memoranda, extracts from Hansard, decisions of the Secretary of State in domestic violence cases decided under the old law applicable to applications made before 6 April 2015, an impact assessment preceding the 2015 changes, a fact sheet on appeals produced by the Secretary of State and guidance on rights of appeal produced by the Secretary of State; as well as case law, both domestic and in the Strasbourg court.

[53]I do not need to weary any readers of this judgment with an analysis of those materials because none of them is conclusive. They do indicate a common assumption that until very recently most if not all the cognoscenti were inclined to treat domestic violence claims as human rights claims; but Ms Mair does not rely on any settled practice as informing the width of section 113, as a matter of statutory construction.

[54]Mr Lewis is therefore right to say that settled practice or assumptions cannot alter the meaning of Section 113. The issue is whether, on the facts, the domestic violence claim is a claim that removal or refusal of entry would be unlawful under section 6 of the Human Rights Act 1998, requiring the Secretary of State not to act in a way that is incompatible with the applicant’s Convention rights.

[55]That issue was considered in a different context by Stephen Morris QC sitting as a Deputy High Court Judge (as he then was) in R (Alighanbari) v SSHD

[2013] EWHC 1818 (Admin)

. The Iranian claimant said he could not be removed to Slovenia, a safe third country, until he had exercised his in-country right of appeal. Whether he had such a right of appeal (under the then law), depended on whether he had made a ‘human rights claim’ within section 113 of the 2002 Act.

[56]On the facts, the judge found that he had not made such a claim. His assertion that he wanted to come to the UK to be with his family did not measure up to what the judge found to be the minimum elements of a section 113 human rights claim which, he said at paragraph 70, are:

‘(a) A claim not to be removed from the UK; (b) an assertion of facts that could constitute an existing or prospective private and/or family life, the interference with which Article 8 ECHR protects; (c) an assertion that removal will interfere with that private and/or family life (i.e. that the, or a, basis upon which the claimant wishes to remain in the UK is the desire to maintain or build a private and/or family life)… .’

[57]The parties agreed, and so do I, that this is a correct statement of what, at the minimum, a section 113 human rights claim is, where article 8 is invoked. It can also be adapted so that it works where other articles of the Convention are invoked, for example, article 2 or 3.

[58]Reference was also made in argument to the threshold of ‘certifiability’, i.e. the possibility that a purported human rights claim might not qualify as one if its merits were hopeless, such that it would fall to be certified as clearly unfounded by the Secretary of State under what is now section 94(1) of the 2002 Act.

[59]That threshold does not happily work as a test of what a human rights claim is. Section 94(1) is drafted on the premise that a clearly unfounded human rights claim is still a human rights claim, albeit one without foundation. I therefore prefer to ask myself whether all domestic violence claims necessarily pass the three tests set by Mr Morris QC, as he then was in Alighanbari. If they do, they may on their facts be well-founded, ill-founded or clearly unfounded.

[60]At the hearing, we discussed examples of domestic violence cases that might or might not satisfy all three criteria. At one end of the spectrum one can envisage a domestic violence claim where returning the claimant to a third country would expose her to a serious risk, for example, of ‘honour killing’ or torture at the hands of non-state agents.

[61]Manifestly, such a domestic violence claim would be a human rights claim. The claimant would be saying it would be unlawful under section 6 of the Human Rights Act to return her to the third country, because to do so would be to act in a way incompatible with her rights under article 3 and, perhaps, article 2 also.

[62]Mr Lewis is therefore correct to concede that some domestic violence claims are human rights claims within section 113. He gave the further example of a case where removal is sought of a domestic violence victim while the police or Crown Prosecution Service are considering prosecution of the alleged perpetrator, which would be frustrated by the victim’s removal.

[63]At the other end of the spectrum, it is not difficult to envisage a domestic violence claim which does not include element (b) of the three criteria articulated in Alighanbari. Suppose that the claimant came to this country from Pakistan to marry a British citizen, intending to take him back to live with her in Pakistan. On arrival here, he beats her up and she changes her mind. As a result of that domestic violence inflicted by him, the marriage breaks down.

[64]The claimant then, let it be supposed, moves away to live with an aunt in Leicester and decides that she wants to settle alone in the UK, instead of returning to Pakistan where she has a loving and supportive family and would be in no danger. In such a case, it would not in my judgment be arguable that the claimant had asserted facts that could constitute an existing or prospective private and/or family life, the interference with which article 8 protects.

[65]I therefore reject Ms Mair’s submission, eloquently though it was made, that all domestic violence claims are necessarily also human rights claims. Some are, others are not. Mr Lewis submitted that the facts asserted in this case do not raise a human rights claim. I am inclined to agree; the Article 8 case made in the claimant’s covering letter was wafer thin, though perhaps I do not need to decide the issue, as will become apparent.

[66]In light of the above, I come to the rest of my reasoning and conclusions on ground 2. First, the claimant is correct that the Secretary of State’s position appears to be irregular: on a literal reading of Appendix AR, the provision attacked by the claimant wrongly assumes that all domestic violence claims are not human rights claims, a position which the Secretary of State, through Mr Lewis, now rightly concedes is wrong.

[67]On the other hand, the Secretary of State is correct in her submission that not all domestic violence claims are human rights claims. It follows that she is perfectly entitled to enact delegated legislation removing the right of appeal from victims of domestic violence whose claims are not human rights claims, and replacing that right with one of administrative review. What she cannot do without primary legislation is remove the right of appeal for domestic violence claims that are also human rights claims. That would be contrary to Section 82(1)(b) of the 2002 Act.

[68]In those circumstances, I agree with the claimant that Appendix AR is wrongly drafted. I do not, however, consider that it would be appropriate to quash it. I think the right course is to give effect to its application to domestic violence claims that are not also human rights claims, while recognising that it cannot be read as overriding the provision in section 82 which confers a right of appeal in a domestic violence case that is also a human rights claim.

[69]This can be done by adopting a purposive and strained construction of sub-paragraph (viii) of AR3.2(c) so that the provision may rather survive than perish (or if you prefer, ut res magis valeat quam pereat), reading that sub-paragraph as if it included the words below which I have added in brackets and italicised: ‘(viii) Appendix FM (family members) but not where an application (not being a human rights claim) is made under… Section DVILR (domestic violence)’.

[70]By way of postscript, the amendment to Appendix AR was not irrational. There is nothing irrational about deciding to remove appeal rights from domestic violence victims. The rationale is to stop appeals: once the right is removed, they cannot appeal anymore. The challenge should have been a vires challenge. Treated as such, it comes close to succeeding, but I have managed – just - to interpret the operative provisions of Appendix AR in a manner consistent with the primary legislation they so nearly contradict.

[71]The second ground therefore does not succeed but the claimant has done the law good service by raising it. I turn next to the first ground of challenge.

Ground 1: Challenge to the Lawfulness of the Secretary of State’s Decision

[72]The claimant’s first ground of challenge is that the Secretary of State’s case officer took an approach to the evidence that was ‘unlawful and/or irrational’ and that her decision ‘lacked the anxious scrutiny which should have marked a decision of this description’ (to quote from the written grounds).

[73]Ms Mair in her written grounds went on to assert that before rejecting the application the Secretary of State should have interviewed AT if not satisfied with her evidence; and should have let AT know if she intended to reject the application and should have given AT an opportunity to provide further evidence.

[74]In her skeleton argument she developed those arguments further, making the following points. She reminded me that domestic violence cases require a particularly sensitive approach by decision makers to evaluation of the evidence. The rules should not be applied in a manner that undermines the purpose of enabling domestic violence victims to escape from abusive relationships and obtain leave to remain.

[75]She pointed out that the whole body of evidence had to be assessed in the round, that account should be taken of the frequent difficulties in obtaining documentary evidence of domestic violence. There should not be, ‘an unduly mechanistic or strict consideration of the available evidence’: R (Balakoohi) v SSHD

[2012] EWHC 1439 (Admin)

, paragraph 60.

[76]The Secretary of State herself in her guidance document Victims of Domestic Violence (version 13.0 of 29 May 2015) includes the following under the heading ‘Other types of evidence’, meaning evidence other than formal documentary evidence such as a court order or record of a criminal conviction:

‘Often victims do not have the official documentary evidence to prove domestic violence. This may be because of an unwillingness or not enough evidence to take the matter to court or to a multi-agency risk assessment conference (MARAC). You must always try to get any evidence the applicant has from the police, courts or MARACs. When this is not possible, you must ask the applicant to submit as much evidence as they can. The list below details some evidence that might be available and would help prove domestic violence. It is not an exhaustive list: [there follows a list of items such as medical evidence or an undertaking to the Court. The list includes mention of a] “police report which confirms attendance at an incident resulting from domestic violence”. … This evidence may relate to one incident or a number of incidents and must be used to build a case history, in order to make as thorough a decision as possible, when you make a judgement on whether domestic violence has taken place. You must thoroughly explain all decisions based on such evidence listed above. Applicants must provide as much evidence as possible to prove they were the victim of domestic violence. Whilst an applicant who provides just one piece of evidence from the list above may be able to prove their case, in general an applicant who submitted only one piece of evidence would not usually be considered to have proven their case. You must treat with caution all witness statements from friends or family and letters from official sources that relay unfounded reports by the applicant but do not confirm the incident. This type of evidence must be verified where possible, and treated as additional evidence when you build the case background…’

[77]In another guidance document dated December 2015 entitled Controlling or Coercive Behaviour in an Intimate or Family Relationship - Statutory Guidance Framework the Secretary of State said this under the heading:

‘[t]he gendered [sic] nature of controlling or coercive behaviour’: ‘22. Controlling or coercive behaviour is primarily a form of violence against women and girls and is underpinned by wider societal gender inequality. This can contribute to the ability of the offender to retain power and control, and ultimately the ability of the victim to access support and leave safely. It is, therefore, important to consider the role of gender in the context of power and control within a relationship when identifying controlling or coercive behaviour in heterosexual relationships. Other considerations 23. It is important to consider how any additional needs and barriers may affect the ability and willingness of the individual victim to recognise or report abusive behaviour. Perpetrators may try to exploit such vulnerabilities in order to maintain control, or try to prevent the victim from seeking help. Examples may include: … • Ethnicity - Those from black and minority ethnic (BME) backgrounds may experience additional barriers to receiving help or reporting abuse. This may include a distrust of the police, concerns about racism, language barriers, concerns about family finding out, or fear of rejection by the wider community. • Immigration status - Those subject to immigration control may face additional barriers when attempting to escape domestic abuse. These circumstances may make them more reluctant to come forward and report abuse. Such circumstances may also be exploited by perpetrators to exert control over victims, for example, by threatening to inform immigration authorities, or to no longer support their stay … .’

[78]Ms Mair submitted that the claimant’s evidence was not properly considered; that it was unfairly rejected where it conflicted with UZ’s written evidence, which was completely untested; that the evidence from others of complaints made by AT and signs of the distress she was suffering, were wrongly treated as of little or no worth because they merely repeated reports from AT.

[79]She also contended that the reasons given for rejecting AT’s evidence were inadequate; and that the decision maker failed to pay attention to the points made in the guidance documents to which Ms Mair referred me, and from which I have just quoted.

[80]She pointed to the power to make further enquiries or interview AT, which might need to be exercised either at the first stage or on administrative review to make the process fair, citing in support the observation of Dyson LJ (as he then was) in R (Ishtiaq) v SSHD

[2007] EWCA 386

, CA, at paragraph 40 where, in a slightly different context he said:

‘… 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.’

[81]Ms Mair was only able to see the letter of 3 March 2015 from UZ on the first day of the hearing, denouncing AT and the marriage. In the light of the letter, she submitted that failure to give AT the opportunity to comment on it compounded the unfairness, in particular since UZ’s evidence was so heavily relied on by the decision maker.

[82]For the Secretary of State, Mr Lewis submitted that it was for the decision maker to decide what weight to give to the respective accounts of AT and UZ and to the supporting written evidence from AT’s friend, relative, employer, counsellor and GP, and the letter from the police; and that she had not prejudged the issue by preferring UZ’s account without testing it. The Secretary of State was not required to determine the cause of the marital breakdown; only to form a judgment on the available evidence as to whether AT had satisfied her that domestic violence was the cause.

[83]Mr Lewis argued that the decision maker had referred early in the decision letter to the timing of AT’s journey to Pakistan and rationally concluded from it that the breakdown of the marriage occurred during AT’s time there. The latter conclusion, he said, was also supported by the absence of any indication that AT had moved back into the marital home after returning here from Pakistan, a point noted in the decision letter.

[84]The decision maker was entitled to reason from that evidence, Mr Lewis submitted, that UZ’s account was to be preferred. There was no duty to make further enquiries of the police or anyone else; nor to interview AT, a process which if regularly repeated would be administratively unworkable. Nor was there any obligation to warn AT that her application was likely to be dismissed and to give her an opportunity to improve on her evidence.

[85]Mr Lewis went on to submit that the reasons given in the decision letter and administrative review letter were full and more than adequate; that the evidence from AT was thin; that the context in the Ishtiaq case was different and the Court of Appeal was not seeking to introduce a legal requirement to interview the applicant in domestic violence claims.

[86]I have carefully considered these rival submissions, measured against the evidence of the process leading to the initial decision and the subsequent administrative review decision. I bear in mind that, as both parties accepted, whether a decision making process is conducted in a manner that satisfies the obligation of fairness to the person affected is a fact sensitive question.

[87]The fairness issue can only be decided by looking at the matter that was at stake, the evidence available to the decision maker, the procedure followed and the way in which the decision maker dealt with the evidence. Previous cases such as Balakoohi and obiter observations such as that of Dyson LJ in Ishtiaq are therefore of, at the most, limited assistance. I have come to the conclusion that the decision was reached by a process that was unfair to AT and that the decisions challenged are consequently unlawful. In my judgment, the process was unfair on two counts.

[88]First, it was procedurally unfair not to make known to AT at least the gist of what was said by UZ in his detailed letter of 3 March 2015, though I do not say that it was incumbent on the Secretary of State to disclose the letter itself. Secondly, I do not accept the Secretary of State’s submission that UZ’s account was properly evaluated. It was accepted as true without evaluation, and then relied on as the main reason for rejecting AT’s account.

[89]As to the first point: where damning accusations are made by the alleged perpetrator of domestic violence, it is difficult to see how it can be fair, at least in most cases, not to give the applicant for indefinite leave to remain an opportunity to know the sting of those allegations and give her an opportunity to respond to them. It was not, in this case, unduly onerous on the Secretary of State to require her to inform the claimant that a case was being made against her, and the gist of what that case was, so that she could respond to it. It would only have taken one further letter.

[90]Here, AT should have been told, without necessarily disclosing UZ’s letter, that UZ had claimed that the marriage had broken down by, at the latest, 3 March 2015; that the reason was not domestic violence; that according to him the principle aggressor was AT and not he; that according to UZ, AT had deceived him and the Home Office in order to obtain the right to settle in the UK; and that according to UZ, AT had attempted to conceal her return to the UK and had never gone back to UZ’s house.

[91]On the second point, I do not agree that UZ’s account in his letter of 3 March 2015 was rationally and objectively evaluated by the decision maker. She started her reasoning from the dates of the trip to Pakistan which were not in issue. She then went on to say that there was, ‘no indication that you moved back into the marital home’.

[92]That was consistent with UZ’s account. His account was that AT had returned alone, not returned to UZ’s house but lain low somewhere in Lancashire, attempting to conceal her return from UZ and his family, and living clandestinely, he suspected, somewhere in the Bolton area. AT did not know about that account, as already noted.

[93]The finding that there was, ‘no indication that you moved back into the marital home’ was a rejection of AT’s evidence and an acceptance of UZ’s. AT’s statement included the passage saying that she ‘eventually returned to the UK on 05 February 2015 and returned to my husband’s house’ (my italics) where she was, ‘abused, shouted and sworn at by him and his family’.

[94]The decision maker simply ignored that evidence and did not pit it against UZ’s account, which she uncritically accepted. Furthermore, AT’s account was that the Pakistan trip was engineered as an attempt to get rid of her, though not described as such at the time. Her version of events was to the effect that she sought to defeat that plan by returning to her husband’s house, evidently not accepting that the marriage was necessarily over. When she got there, she claimed to have been shouted and sworn at by UZ and his family. UZ’s account was, to the contrary, that she left for Pakistan after telling UZ’s father that she no longer liked living in the UK.

[95]Leaving aside the absence of any explanation for AT’s return if that were true, the decision maker did not engage in any way with that conflict of evidence between UZ and AT. Before the end of the first paragraph of her reasons, she had merely recited that UZ had ‘confirmed’ the permanent breakdown of the marriage and signed a public statement to that effect; and the decision maker then stated that ‘[t]herefore it is considered on balance of probabilities that your relationship broke down permanently while you were in Pakistan… . The non sequitur is palpable.

[96]After that, in the rest of the decision letter by comparison with the dismissive treatment of AT’s evidence, that of UZ is treated with something approaching veneration. There is a lack of even-handedness. This manifested itself in the following ways in the decision letter.

[97]First, AT’s evidence of complaints to third parties was capable of amounting to corroboration, and of rebutting any suggestion of fabrication. In the second paragraph of the reasons, the decision maker nonetheless referred to the ‘absence of any corroborating and contemporaneous evidence to the events that you claim… .’

[98]While it was not unlawful to accord little weight to that evidence, it was wrong to say that it was not ‘corroborating and contemporaneous’. In sex offence prosecutions, such evidence is routinely called by the Crown and is admissible to rebut any suggestion of fabrication or afterthought. No-one suggests that it is not capable of being probative.

[99]More seriously, after accepting UZ’s proposition - that the marriage permanently broke down before 3 March 2015 - before undertaking any evaluation of AT’s evidence, the decision-maker then relied on UZ’s same proposition as the reason why AT’s evidence should be rejected.

[100]She did this first when rejecting the value of the GP’s letter, ‘…the earliest date that you visited your GP was on 01 February 2016, some 12 months after your marriage broke down’. The same difficulty afflicts the reasoning in the paragraph dealing with AT’s employment: ‘…you did not begin working for the company until January 2016 and therefore [my italics] had not been in a relationship with your husband for almost 12 months prior to your start date’.

[101]Again, when commenting on the letter from the police, the decision maker commented that the visit took place ‘more than 15 months after your relationship had broken down…’. The decision letter and the reasoning in it are disturbing. AT’s account is rejected because it conflicted with that of UZ. One is left with the uncomfortable feeling that the man’s evidence counted for more than the woman’s. A double standard was applied.

[102]The fairness deficit could have been made good in a procedural sense by giving AT the opportunity to comment on her husband’s versions of events, whether by interviewing her or, more likely, by writing to her; but there would still then have had to be an impartial evaluation of the competing accounts, which was never undertaken either at the initial decision stage, or on administrative review.

[103]For completeness, I should add that I do not accept the argument that it was incumbent on the Secretary of State to make further enquiries of the police.

[104]I do consider that there was a failure to have in mind the point made in the guidance cited by Ms Mair: that threats to denounce a domestic violence victim to the authorities and procure her removal can form part of a course of conduct itself amounting to domestic violence. That point should have been addressed on the administrative review.

[105]Before the review stage, AT was unable to address it herself because she did not know about the detailed letter of 3 March 2015, albeit that she may have been aware, from her then solicitors, of the bald public statement of UZ made on 25 November 2015 to the effect that the relationship was no longer subsisting.

Conclusion

[106]For those reasons, the first ground of challenge succeeds. I will make an order dismissing the second ground of challenge, and on the first ground allowing the claim. I will quash the decision of the Secretary of State and the administrative review decision, and I will remit the matter for fresh consideration by the Secretary of State.