The recent decision of Mr Justice Knowles in R (On the Application Of) Suliman v Secretary of State for the Home Department  EWHC 326 is a welcome reminder from the High Court that the demands of fairness require that the Home Office consider all evidence in domestic violence applications, and come to proper conclusions on that evidence.
The Forms of Domestic Abuse
Domestic violence can happen to and be perpetrated by a person of any gender. Often it happens in secret and behind closed doors. Those without a secure immigration status in the UK can be acutely vulnerable, and are often too afraid to seek help.
Domestic abuse is defined by the Home Office in their Guidance as going beyond the physical:
“Any incident or pattern of incidents of controlling coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can include, but is not limited to, the following types of abuse:
Controlling and coercive behaviour are included in the Guidance as other forms of abuse. Controlling behaviour is defined as a “range of acts designed to make a person subordinate or dependent by isolating them from sources of support; exploiting their resources and capacities for personal gain; depriving them of the means needed for independence, resistance and escape; and regulating their everyday behaviour”. Coercive behaviour is either an act or a pattern of acts of assault, threats, humiliation and intimidation; or other abuse that is used to harm, punish, or frighten their victim.
The Guidance by the Home Office very clearly states that “[n]o distinction should be made between psychological (mental) abuse and physical abuse when assessing if a person has been the victim of domestic violence or abuse.”
The Immigration Rules on Domestic Violence
As we have explored previously, in limited circumstances, the Home Office accepts that a victim of domestic violence could be granted indefinite leave to remain under the Immigration Rules, if the relationship breaks down due to this violence. The applicant’s partner must be settled, British, a person with refugee leave, or the partner must be an armed forces member who is exempt from immigration control. An applicant must have first been admitted or been granted an extension as a partner under Appendix FM, as a partner of a refugee granted under paragraph 352A, under paragraph 276AD of the Immigration Rules or paragraph 23, 26, 28 or 32 of Appendix Armed Forces, or held leave as such a partner that was followed by limited leave to allow access to public funds pending an application under for indefinite leave to remain (under the destitution domestic violence (DDV) concession).
However, the Rules are prohibitively restrictive in that they do not apply to the spouse of a person with only limited leave to enter or remain in the UK, fiancé(e)s, people seeking asylum. The reason the Home Office gives for this is that such applicants “have come to the UK as the dependant of someone who does not have settled status in the UK, and who may never have settled status, and should have no expectation of remaining in the UK outside that relationship”. The latter part of this reason does not wholly follow. Of course, a person accompanying their spouse or moving to the UK to live with their partner (whether their partner can remain in the UK on a permanent or non-permanent basis) has their expectation to live in the UK precedent on their partner. In any case, if you do not fall within the Rules, the only recourse is an application on the basis of private and family life under Article 8 of the European Convention on Human Rights, or an application for leave outside of the rules.
One positive feature of these Rules in the limited circumstance they do apply, is that they do not require a person to have valid leave to remain in the United Kingdom. This demonstrates an appreciation of the fact that an abused person may be unable to apply for a renewal of their leave in time, and such prevention may be part of the abusive behaviour. However, applicants must be able to establish that at the start of their last grant of leave as a partner, their relationship with their partner was subsisting; that the relationship broke down during that last period of leave; and that it broke down because of domestic violence. The abuse may be by an applicant’s partner, or by another family member.
Evidence of Abuse and Suliman
Paragraph E-DVILR.1.3 specifies that: “The applicant must provide evidence that during the last period of limited leave as a partner of a British Citizen, a person settled in the UK, or a person with refugee leave under paragraph D-ECP.1.1., DLTRP.1.1 or D-LTRP.1.2 of this Appendix or during their only period of leave under 352A, the applicant’s relationship with their partner broke down permanently as a result of domestic abuse.”
The Rules themselves do not specify the evidence that must be provided to prove the abuse. Whilst there is openness in this ambiguity for an applicant who may have limited evidence of abuse (perhaps even none other than their own account), it also leaves the Home Office leeway to interpret and subjectively assess the value of this evidence. The Home Office’s Policy states that “All evidence submitted must be considered and a conclusion drawn as to whether there is sufficient evidence to demonstrate that, on the balance of probabilities, the breakdown of the relationship was as a result of domestic violence.” The Guidance then lists a table of evidence which could be produced, and indicates whether it would be of conclusive, strong, moderate, or weak probative value.
In a welcomed decision from Mr Justice Julian Knowles in R (On the Application Of) Suliman v Secretary of State for the Home Department  EWHC 326, the evidence, reasons and scrutiny for domestic violence applications (both within and outwith the Rules) were further explored. In that case Suliman had been granted entry to the UK as a partner pursuant to Part 8 (rather than Appendix FM). Following an extension of this leave, his marriage broke down. He applied for leave to remain on a private life and exceptional circumstances basis, which was certified as clearly unfounded. He then applied outside of the Rules under the Destitution Domestic Violence Concession (DDVC), which was granted, and following which he made an indefinite leave to remain application as a victim of domestic violence. The latter was refused, and maintained on administrative review. In the judicial review the relevant question was whether the Secretary of State had considered whether to exercise discretion outside of the Rules, and taken full account of the evidence.
Regardless of the fact that Suliman had never been granted leave pursuant to Appendix FM, the refusal letter considered the rules for indefinite leave to remain on the basis of domestic violence, which led the High Court to find that the Secretary of State intended to consider Suliman as an alleged victim of domestic violence outside of the Rules. In any case, counsel for the Secretary of State accepted that a finding of domestic violence was relevant to the exercise of discretion outside of the Rules. This led the High Court to consider the Home Office’s Victims of domestic violence and abuse (Version 14.0, February 2018) Policy, suggesting the Policy’s wider applicability, given that Suliman did not fall within the scope of persons who could apply under the Rules.
As for the standard of proof, in Suliman [at §23], the High Court rejected (the Claimant’s) submission that the standard of proof should be lower as the above formulation in the Policy Guidance is clear; the test is the balance of probabilities.
Suliman had explained in a letter the troubled history of his marriage:
“He said his wife would drink to excess and become violent and rowdy. In 2013 he was hit by her on the head with a piece of metal. He had to go to hospital to have his head sutured. He did not report it to the police because his wife threatened to have him deported. On another occasion she poured hot coffee over his hand. He did not tell the truth about this to health professionals because he was ‘cowardly’ because of his ‘manhood’. The relationship ended in September 2015 when he discovered she had cheated on him. He says she blackmailed him for money and threatened to have him deported. The Claimant also set out a number of examples of emotional abuse, eg, that she would always shout at him and would lock him out in the rain. He says he was treated like a slave.” [§17]
Other than his own evidence, Suliman also provided “a letter from Victim Support from April 2018 concerning an allegation of assault; a record from Manchester Royal Infirmary from 2013 when the Claimant attended with a head injury; a medical record referring to an assault; and a record of a burn on wrist and hand from 2014” [§18].
On the basis of this evidence the Secretary of State accepted that Suliman had attended the hospital, and that the injuries were consistent with his account, but found that there was no explanation that his wife had caused the injuries. Accordingly, the Secretary of State decided that when considering these documents “in the round” Suliman had failed to demonstrate that he was subjected to domestic violence that broke down his marriage.
Knowles J in quashing this decision of the Secretary of State, focused on what fairness demanded of the Secretary of State: to “address or deal with the reasons explained by the Claimant why he was reluctant to tell the police or the medical authorities” [§25]. For Suliman the reasons were those often held by victims of domestic violence: their own sense of shame, cowardness, residual love for a partner despite their behaviour, and fear of losing them, or getting them into trouble. “I am bound to say”, found Knowles J, “that these explanations all strike me as being inherently plausible and the fairly typical response of an abused partner in a relationship. They provide at least an equally convincing explanation for why the Claimant said nothing at the time as the one reached by the Secretary of State, ie, that he had not been assaulted by his wife” [§25].
Fairness demanded that the evidence “be confronted and a conclusion reached” [§25]. Knowles J found that the application for judicial review could be allowed on that basis alone. The findings of the High Court in Suliman are important judicial recognition of an unfair phenomenon that we see far too often. Decisions are often composed of listing some of the evidence submitted, dismissal of that evidence without providing (any or) proper reasons or coming to any conclusion as to the probative value of the evidence, before an ultimately negative conclusion on the application.
Partial consideration of evidence was the second basis on which Knowles J found the Secretary of State had failed. The Secretary of State had entirely left out the account of two witnesses who had attended the hospital with Suliman “after he had received his head injury and who witnessed him being threatened by his wife if he told the police”. One of these witness accounts was put before the Secretary of State after the decision, but during the administrative review process, and both were submitted during the pre-action protocol process. Again the Secretary of State failed to consider this “plainly highly material evidence” which “directly supported the Claimant’s case” [§30]. For applicants, this finding should also demonstrate the importance of placing all material evidence before the Secretary of State prior to bringing a judicial review claim (even if only possible at the administrative review or pre-action protocol stage).
Such failures by the Secretary of State are not outliers. In R (AT) v Secretary of State for the Home Department  EWHC 2589 (Admin), Kerr J found that the Secretary of State “uncritically accepted” damning accusations of the alleged perpetrator of domestic violence, treating it “with something approaching veneration”, without offering the alleged victim an opportunity to respond or informing her of the gist of the case against her. Simultaneously, the Secretary of State dismissed the alleged victim’s evidence without engaging in any comparison of the evidence, or proper consideration of corroborating and contemporaneous evidence. These failures led to the quashing the decision of the Secretary of State in AT.
It is hoped that with these reminders from the High Court, in such sensitive applications as those involving domestic violence, the Secretary of State will take a more fair approach in her consideration.
Challenging a Domestic Violence refusal decision
Paragraph AR3.2(c)(viii) of Appendix AR to the Immigration Rules lists domestic violence applications under Appendix FM as eligible decisions for administrative review. However, for other decisions in Appendix FM, it is stated that the appropriate remedy is an appeal under section 82 of the Nationality, Immigration and Asylum Act 2002.
In AT, the claimant asked that the words in Appendix AR which provide for administrative review rather than an appeal (in domestic violence claims) be quashed. However, Kerr J did not accept that domestic violence claims are inherently human rights claims, within the meaning of section 113 of the Nationality, Immigration and Asylum Act 2002 as one being ‘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’.
However, as conceded by Mr Lewis on behalf of the Secretary of State in AT, “some domestic violence claims are human rights claims within section 113” [§61]. Whether there is a right of appeal is fact dependent.
The High Court laid out the spectrum of possible domestic violence cases that could give rise to a right of appeal:
“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.
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.
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.
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.”
The Secretary of State can enact delegated legislation that gives rise to a right of administrative review for non-human rights claims (under AR3.2(c)(viii)), but she cannot remove the right of appeal if a domestic violence claim is also a human rights claim, as that would be contrary to the primary legislation contained in Section 82(1)(b) of the 2002 Act.
Accordingly, Kerr J found that AR3.2(c)(viii) ought to be read purposively as follows: ‘(viii) Appendix FM (family members) but not where an application (not being a human rights claim) is made under… Section DVILR (domestic violence)’ [§69].