Construing the Rules: High Court to the Rescue

Amin, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 2813 (Admin)

One of the worst things that can happen to any immigration subject is for their application to be declared “invalid”. The consequences of such a predicament are likely to be more debilitating for victims of domestic violence.

The Home Secretary says that she is committed to doing more for victims of domestic violence. But it is difficult to hold her immigration service, or even the tribunals, up to this promise. This case was about whether the defendant (D) Home Office’s refusal to treat the claimant (C) Amin’s application for indefinite leave to remain under rule 289 as valid was lawful.

Background

C was given entry clearance (valid until November 2013) for 27 months as a spouse of a British citizen. She entered the UK in September 2011 but C returned to Pakistan in late April 2012 only to return to the UK in early June 2012 when an immigration officer in Manchester Airport gave her (purported) notice to suspend her visa. C was given temporary admission. The notice was clear that she was not given leave to enter the UK under the Immigration Act 1971. She was subjected to several restrictions including reporting to an immigration officer. On 18 June 2012, C applied for ILR under rule 289 as a victim of domestic violence because she had been assaulted, raped and denied medical aid by her husband. C was subsequently interviewed by officers and by October 2012 the position was that C’s immigration rights had been terminated, discretionary leave was refused to her because of her trip to Pakistan and removal directions were set but then suspended and finally cancelled.

In her statement in support of her judicial review application C complained that she was from a poor Pakistani background and enjoyed a better place in society and protection in the UK. She said that her in-laws tricked her into returning to Pakistan where the authorities and her parents restored custody of her passport to her from her mother-in-law. C said that her husband turned up at her parent’s house in Pakistan and made a scene by violently banging on the door and only left when she started to scream. She also said that she received death threats by phone and text and that her husband and mother-in-law let it be known that they would kill her. So she decided to come to the UK.

The Home Office had decided to reject C’s domestic violence application as invalid because she had “no leave”, it accused her of being an “economic migrant” and also thought that it was odd for C to remove herself from safety in Pakistan to more precarious circumstances in the UK.

Issues

For C the decision was wrong because she satisfied rule 289A (as she entered the UK on a 27-month spouse visa) and that the provision did not require her to have extant leave when she made her application on domestic violence grounds. For her she had in fact entered the UK on her spouse visa, satisfied rule 289A and was entitled to consideration for ILR under rule 289B.

On the other hand, for D construed properly rule 289A(i)’s words “was admitted” meant “last admitted”. C had left the UK after the troublesome marriage and the rule’s applicability fell to be determined by her most recent admission against which she failed the test in the rule. Given that her leave had been suspended and she was on temporary admission she could not rely on para 289A(i) at all.

Ruling

HHJ Pelling QC adopted Lord Hoffman’s Odelola v SSHD [2009] 1 WLR 1230 approach that in construing an immigration rule regard must be had as to its language and purpose. The immigration rules needed to be considered as a whole and their function was important. The intention behind the rule was to ensure that someone with a direct route to settlement as the partner or spouse of a British or settled person could secure it without bearing an abusive relationship. In AL [2007] EWCA Civ 386 Dyson LJ (as he then was) said, “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”. Moreover, JL (Domestic Violence: Evidence and Procedure) India [2006] UKIT 00058 confirmed that C could apply for ILR even if her initial leave had expired. (D, instead, argued that all this was irrelevant because C left the UK and that it made no difference that she did so involuntarily.)

D’s argument that C’s involuntary trip disentitled her from the benefit of the domestic violence route was uninviting and the court held that “last admitted” in rule 289(i) could only mean “was originally admitted”: para 15. HHJ Pelling thought that depriving someone like C the benefit of the domestic violence route because she had involuntarily left the UK would cause manifest unfairness: paras 16–17. He held that D’s weakness was reflected in her attempt to construe rule 289A in isolation (something Lord Hoffman had disapproved of in Odelola). The court said this:

19. As the examples I have mentioned show, each of the constructions contended for by the parties before me open up the possibility of manifestly unfair or unsatisfactory outcomes. The remedy for this lies in paragraphs 289B and 289C of the rule. Paragraph 289B creates a discretion providing the requirements of paragraph 289A are satisfied. It follows that even if all the conditions identified in paragraph 289A are satisfied, there is no obligation to grant indefinite leave to remain. The Secretary of State at that stage has a discretion. In an absurd case such as that postulated by the defendant, she would no doubt exercise that discretion by refusing to grant indefinite leave to remain and, subject to a challenge, on Wednesbury grounds that will be the end of the application.

20. By the same token, if the construction contended for by the claimant is correct, then the absurdity identified by her counsel in the course of her submissions would be avoided. It is only not avoided if the construction for which the defendant contends applies for in that event paragraph 289C applies and the defendant would have no discretion.

For the court, the policy underpinned the rule. No one should have to remain in an abusive relationship in order to secure settlement. Cases would turn on their own facts. Other factors – such as the genuineness of the marriage, voluntary departure and involuntary removal – influenced how D chose to exercise discretion and an arbitrary or artificial approach that defeated the policy objective was unjustified: para 21.

D nevertheless argued that the court’s approach did not help C because her leave was suspended and she had no rights under the 1971 Act. HHJ Pelling QC held that D’s point was neither here nor there. Upon a true and proper construction of rule 289A, all that mattered was that C “had been admitted on the relevant basis originally”: para 24. Applying JL, the issue of whether C’s leave had expired or had been suspended was wholly irrelevant to her application and the fact that temporary admission did not amount to leave to remain was “immaterial”: paras 24–25. So an applicant’s “status at the time the application is made is immaterial” because she would need to establish the facts of the domestic violence suffered failing which D, who despite her discretion under rule 289B, was obliged to refuse the application under rule 289C.

Insofar as refraining from quashing D’s decision (because she gave consideration to granting discretionary leave outside the rules) was concerned, the court concluded that the policy underpinning rule 289 was to be given greater weight than other matters: para 26. People on a direct route to settlement should not have to tolerate an abusive relationship – or return to it – to achieve ILR. Equally, people should not be deprived of settlement by being driven to withdraw from such a relationship by domestic violence.

Quashing the decision and refusing D permission to appeal (as it amounted to nothing more than a “desire” to re-argue the same points before the Court of Appeal), HHJ Pelling QC explained that it would be “wrong” for the court to ascertain the circumstances of the present case because the discretion was for D to exercise and therefore:

27. … What is clear is that there is a realistic prospect of the outcome being different if the exercise of discretion is one considered under rule 289, as opposed to one concerning discretionary leave to remain outside the rules.

Comment

This is a useful ruling and HHJ Pelling QC was clearly unafraid of holding the Home Secretary accountable to her policy.

The Home Office itself accepts that domestic violence is rampant and that fewer than 1 in 4 people who are abused by their partner (and only about 10 percent of women who are seriously sexually assaulted) actually approach the police.

HHJ M Pelling QCYet, as set out in the facts of this case, the immigration service does not treat victims of domestic violence all that well.

In addition to victims of domestic violence under rule 289, this judgment also sheds light on properly construing Appendix FM whose “implacable visage” (to borrow a term coined by Free Movement) requires that “the applicant must have made a valid application for indefinite leave to remain as a victim of domestic violence” (DVILR 1.1(b)).

As the court said, reading parts of a rule to argue absurd or harsh points is counterproductive because rather than delivering the policy objective an arbitrary approach will inevitably defeat it.

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

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Domestic Violence, High Court, Immigration Rules, Manchester, Pakistan, Spouse visa, Women and tagged , . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s