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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> AT, R (on the application of) v Secretary of State for the Home Department  EWHC 2589 (Admin) (18 October 2017)
Cite as:  EWHC 2589 (Admin),  Imm AR 483
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QUEEN'S BENCH DIVISION
1 Oxford Row
2pm – 3.30pm
B e f o r e :
|THE QUEEN (ON THE APPLICATION OF AT)|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT|
61 Southwark Street, London SE1 0HL
Tel: 020 7269 0370
This transcript has been approved by the judge.
MR GWION LEWIS appeared on behalf of the Defendant
Crown Copyright ©
MR JUSTICE KERR:
'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'.
'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.
'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'.
'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.
'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.'
'[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)'.
'"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'.
Ground 2: Challenge to Amendments to Appendix AR
'(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)… .'
'(viii) Appendix FM (family members) but not where an application (not being a human rights claim) is made under… Section DVILR (domestic violence)'.
Ground 1: Challenge to the Lawfulness of the Secretary of State's Decision
'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…'
'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.
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 … .'
'… 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.'
'…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'.