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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> LA (para 289A: causes of breakdown) Pakistan [2009] UKAIT 00019 (27 May 2009) URL: https://www.bailii.org/uk/cases/UKIAT/2009/00019.html Cite as: [2009] UKAIT 19, [2009] UKAIT 00019 |
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LA (para 289A: causes of breakdown) Pakistan
[2009] UKAIT 00019
Date of hearing: 5 March 2009
Date Determination notified: 27 May 2009
LA |
APPELLANT |
and |
|
Secretary of State for the Home Department | RESPONDENT |
In the light of AG (India) v Secretary of State for the Home Department [2007] EWCA Civ 1534, when deciding if an appellant who is the victim of domestic violence has proved that the "relationship was caused to permanently break down before the end of that period as a result of domestic violence" the Tribunal must be careful to assess the evidence in the round, looking at the totality of the evidence and remembering that a broken marriage may have ended before the parties separate and the marriage may have broken down as a result of domestic violence even if other grounds are given in matrimonial proceedings or raised before the Tribunal.
"She regarded it as her duty to be a good wife to him and tried to be so, but he was immature and temperamental and took out his frustrations on her. Initially the abuse was verbal, but later it progressed to physical abuse as well. When this happened she tried to protect herself and had to strike back.
He often told her to get out of the house and on occasions threw her out. At one stage he went away for 5 days, during which he told her family inPakistan
that she had had an affair. On their anniversary he said he wanted a divorce.
She described a number of specific episodes. One, on 9 December 2007, began with verbal abuse, including a threat to cancel her visa. He then pushed her face into the sofa, in self-defence she scratched his nose and he called the police. She felt disgraced and tried to slit her wrists. When the police came they gave first aid and called an ambulance but they also questioned her. She admitted hitting him and was cautioned.
On 3 March 2008 they attended Relate, she having made an appointment, but he was not interested in any counselling and they were asked to leave. There were further arguments that day, which led her to take refuge for an hour or so with a neighbour, but that night he slept in her bed which he usually did not. The next day there was a further argument and a fight, in the course of which she hit him, again in self-defence. He left the flat and she called the police to record the abuse, although she did not press charges. On 8 March he went to friends for two days. On 11 March the police came and arrested her, evidently on Mr Sham's report of the incident on the 4th. She was charged and bailed and went to the Mosque community centre. Her husband sent her belongings there."
The case was heard on 23 June and she was acquitted. She then went back to her own rented accommodation".
"When she came to them in March saying she had suffered domestic violence"
"Spouses and partners who are the victims of domestic violence should not feel constrained to remain in an abusive relationship for two years solely in order to qualify for indefinite leave to remain".
"It necessarily follows from her acquittal that she was innocent of the charge brought, but the note makes clear that the acquittal was based not merely on a reasonable doubt but on a positive finding of fact in her favour. I accept on that basis that on that occasion at least she was clearly the victim of domestic violence.
I further accept that Mr Sham was found not to be a credible witness with the implication that he had gone to the length of creating a false accusation. It does not necessarily follow from that that he was regularly violent, but it seems to me to indicate that he is a person with scant regard either for his wife or for the truth, which in turns increases the probability that he'd be violent to her if he wished. I note in this regard that when he wrote to the Respondent in August to authorise use of his early letter against the Appellant, the criminal case to which that letter referred had been heard and dismissed, a matter which he failed to mention". (Emphasis added).
"I have considered also the evidence from the GP and the Appellant's family, the Appellant answers in interview and her own evidence, which I found to be generally credible. I note her admission that when he became violent she would have to defend herself, involving hitting back and that on two occasions certainly this resulted in some degree of injury. She is not in any sense to be blamed for defending herself, but I regard her frankness about this as a factor in her credibility. I am left in no doubt, weighing all of that evidence, that the Appellant has been the victim of domestic violence". (Emphasis added).
"I find the Appellant has suffered significant verbal abuse and threats, a good deal of emotional abuse and some physical abuse, although that may have been the least frequent of the forms of abuse to which she was subjected. I see no reason to doubt the evidence that she has suffered as a result both physical and psychological injury". (Emphasis added).
"… and that it did so finally in March 2008 when the Appellant left the matrimonial home for good, that being within her two-year probationary leave".
"When she left the house it was not because she was fleeing violence but because he had caused her to be arrested. When she went elsewhere it was because of her bail conditions. It was after the trial that she acknowledged the marriage was over".
"… a symptom of his attitude to the Appellant, one which, for cultural reasons, she was determined to endure in the hope of change".
"The question of whether domestic violence has occurred is to be determined on the basis of all the evidence before the Immigration Judge. Paragraph 289A (iv) is to be read down to reflect this".
"In my judgment para 289A(iv) should be construed so as to further the policy of enabling persons whose relationships had 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 relative 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". (Emphasis added)
"It is not clear whether, had the Immigration Judge accepted the factual case about the violence, he would have held it had no causative force in the breakdown of the marriage. I would not accept Mr Johnson's submission that, as the evidence stands, no reasonable Immigration Judge could conclude (putting the evidence at its highest for the Appellant) that the violence was a substantial cause of the breakdown".
"… but on the Appellant's case it may be said that the husband was a violent and cruel man and those characteristics of his could not be separated out from the end of the marriage".
"I can confirm that I no longer reside with my husband, Mufazzal Sham. I departed from our matrimonial home some months ago further to the breakdown of our marriage.
I cite the cause of the breakdown of our marriage to be domestic violence – my husband was abusive towards me for some time until I felt it was no longer safe for me to be living with him".
Decision
Signed
Senior Immigration Judge Goldstein