Domestic violence and settlement: a Gujarati case

Earlier in the year the Director of Public Prosecutions (DPP) Keir Starmer QC highlighted the need to tackle domestic violence (DV) – see his speech Domestic Violence: the facts, the issues, the future. Starmer argued that the saying “it’s just a domestic” could no longer be tolerated as standing between the crime of DV and the law because the evil was “serious and pernicious”. For Starmer “a change in attitude” was “clearly needed” because an unacceptable majority of people still remained wedded to the platitude “it’s just a domestic”. Not sure if Mr Starmer and Mrs May, the home secretary and the minister for women, agree about anything else (my guess would be no) but DV seems to be a case in point.

The DPP, who was a celebrated criminal lawyer and joint head of Doughty Street Chambers, felt that although progress had been made in the last ten years – which was reflected in the 2010 conviction rate of 72 per cent for DV cases – a lot more could be done to address DV issues. The statistics which Keir Starmer QC cited were quite telling; he explained that in the UK 1 million women experience at least one incident of domestic abuse every year, more than half of the sexual assaults on women are by their partners or ex-partners, more than three-quarters of DV cases are repeat and on average women tolerated 35 incidents of DV before finally reporting the crime to the police.

And then there are those who can never go to the police at all.

A foreigner who is a victim of DV is less likely to report it to anyone; more likely to tolerate mistreatment for years.

Under the immigration rules a DV victim who arrived in the UK on a spouse visa can apply for settlement. The UKBA’s form SET(DV) for settlement under the DV rule (paragraph 289A) requires a lot of evidence; the required documents are set out in the form in section 4 “Evidence of Domestic Violence”. The form clarifies that the UKBA will not accept witness statements as evidence of DV and that only documents such as a police report, GP’s report, a court order or a letter from social services or a refuge will suffice as evidence for the purposes of the application.

So what can someone do when the above items are not available in support of an application? Can someone, at least in part, rely on Mrs Theresa May’s “violence against women should end” campaign? Have UKBA caseworkers heard Mrs May’s “Call to end violence against women and girls”?

“APP” came to the UK on a spouse visa in 2005. For years she was treated like a servant by her husband and in-laws. She was never beaten and she did not go to the police or to a shelter or a doctor etc. In 2008 APP divorced her husband and received some money from him.

Prior to her divorce, from time to time, her leave to remain was extended by her husband and his family. (APP’s husband and in-laws made her visa applications and they deliberately didn’t apply for settlement after her spouse visa expired.) In December 2009 APP engaged solicitors to extend her leave. The application was refused.

By late 2010 APP was locked in a battle with the UKBA (and the tribunal) to get a settlement visa. In the tribunal the Immigration Judge accepted that APP had been treated very poorly by her husband and his family. The IJ, who was female, acknowledged that APP was abused; yet the IJ decided that since APP had received a divorce settlement the right thing to do would be to return her to India.

The IJ had heard the evidence of members of APP’s community organisation the Pancholi Samaj who had testified that a divorced Hindu woman from a small village in Gujarat had a bleak future if she was returned “home” because she would be confronted with extreme ostracism. Despite the evidence the IJ dismissed APP’s appeal.

Equally astonishingly (it’s never only the judge’s fault is it?), APP’s solicitors charged her £3,000 for representing her in the tribunal and they failed to produce any results in her case; however, the documents which they produced for the purposes of the hearing were truly atrocious: no paragraph numbers in the witness statements; moreover, no attempt whatsoever was made to build up her case.

When APP appealed the tribunal’s decision both tiers of it denied her permission to appeal to the Upper Tribunal because her representatives had not raised the DV issue; the tribunal explained further that APP had not put her DV claim forward when the UKBA served her with a one-stop warning and thus permission to appeal would not be granted.

Rather than appealing further APP was advised to apply for settlement under the DV rule. In addition to the DV(SET) form APP submitted four witness statements, the earlier petition (which was used by her in the tribunal’s proceedings) from 80 members of the Pancholi Samaj, her divorce papers and the tribunal’s determination in her case (where the IJ accepted DV but dismissed the appeal as it was not raised by counsel!) along with the fee of £972 and her expired passport to the UKBA.

The possibility of applying for a fee exemption did arise but APP’s uncle stepped in there. This uncle was also one of the four witnesses who supported APP’s settlement application under the DV rule: the uncle said that APP was not destitute while he was still alive and that he would foot the bill for her application with some pleasure – this meant more article 8 for APP!

APP kept her fingers crossed and 5 weeks later the UKBA sent APP her expired passport with a settlement visa endorsed in it – rather than sending the documents to her representatives who made APP’s application on her behalf; but that is an acceptable mistake (as long as the substance is there we don’t mind). The male caseworker who granted the application wisely avoided the Bollywood tribunal hearing which would have ensued following a refusal.

The caseworker also did better than the judges of both tiers of the tribunal by not repeating their assertions about the weakness of her article 8 claim.

It’s nice to know that the civil service can make the politicians look good once in a while by living up their promises.

Returning to what the DPP has said about “it’s just a domestic”, one would have hoped that he wasn’t counting IJs but it seems that he quite easily could.

From an immigration applicant’s perspective, where the authorities (the UKBA or IJs) fail to take a DV claim seriously for lack of evidence the applicant/appellant should include Keir Starmer QC’s statistics and Mrs May’s promises in order to make their applications more persuasive.

And to be slightly sarcastic, unlike APP not every DV victim from overseas will be fortunate enough to have a female IJ who accepts that the appellant is a DV victim but, despite deep sympathy, proceeds to bury the appellant’s appeal.

Hope to update the scorecard below if more good news for DV applications arrives: who knows maybe the UKBA can outscore the tribunal in the long run. If Mrs May and her servants can keeping “winning” for DV victims the number of tribunal judges (who get paid quite a lot of money) can be reduced and the state can save some money in times of economic hardship.








About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 8, Domestic Violence, DPP, Gujarat, Immigration Rules, India, Settlement, Tribunals, UKBA and tagged , , , , , , . Bookmark the permalink.

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