Mr Symes referred the Immigration Judge to the judgment in the Court of Appeal in AI v SSHD [2007] EWCA Civ 386 where at paragraph 30, Dyson LJ had stated the policy underlying paragraph 289A was clear:
Mr Symes had further submitted before the Immigration Judge that if there was some ambiguity, the Immigration Judge should favour an interpretation that brought the Appellant within the Rule for fear of defeating the policy underlying it.
No Presenting Officer appeared before the Immigration Judge.
The Immigration Judge had before him a facsimile letter from Hendon Magistrates' Court with the Justice's reasons for dismissing the assault charge. The Magistrates indicated that the bench having heard from Mr Sham and some of his family and also from the Appellant, rejected his evidence and accepted hers and they were satisfied that the Appellant had hit him, causing injury, but only in reasonable self-defence after he had attacked her.
The Immigration Judge continued:
Notably at paragraph 23 of his determination the Immigration Judge continued:
The Immigration Judge continued that he accepted that domestic violence might take many forms, not necessarily involving physical abuse; that emotional abuse within the family might properly be classed as domestic violence. The Immigration Judge continued at paragraph 24 to state inter alia:
The Immigration Judge was further satisfied that the Appellant came to this country in a genuine and subsisting marriage that she was determined to see work.
The Immigration Judge concluded that the marriage had now broken down:
Notwithstanding those positive findings, the Immigration Judge found that the difficulty in the case was " over the cause of the marital breakdown". Although the Appellant's evidence on the issue was "absolutely consistent and clear" the Immigration Judge concluded at paragraph 26 that:
The Immigration Judge concluded that he was satisfied that the breakdown of the marriage was not caused by the domestic violence that had never led the Appellant to try and end the relationship. It was caused by the husband's lack of commitment and eventual desire to be rid of his wife that he took to the length of making a false accusation. The domestic violence was in the Immigration Judge's view:
It would be right to say that in relation to that last mentioned paragraph, Mrs Tanner expressed her disquiet at the Immigration Judge's reasoning. Mrs Tanner frankly told me that she found it difficult to understand, bearing in mind the totality of the Immigration Judge's positive credibility findings, how he could conclude that the breakdown of the marriage was not caused by domestic violence, but by the husband's lack of commitment and desire to rid himself of his wife.
As Mrs Tanner, in my view, rightly observed "violence comes in many forms" . Mrs Tanner continued that it was difficult to see how the Immigration Judge could ignore the Appellant's husband's false accusation that brought his wife before the Hendon Magistrates that stemmed from an incident in which, as the Magistrates found, the Appellant had acted in self-defence after her husband had attacked her. Mrs Tanner continued that "underlying all this was the general antagonism and very unpleasant behaviour of the husband and I cannot see how the Immigration Judge would thus sustain the finding that domestic violence was not causative of the breakdown ". (Emphasis added).
I have emphasised the above words because they in my view dovetail not least with the views expressed by Laws LJ in AG (India) [2007] EWCA Civ 1534 to which I had drawn the parties' attention. Indeed Mr Symes believed that in any event, the Court of Appeal decision in AG was before the Immigration Judge although he had not referred to it in his determination.
Before referring more particularly to AG it would be as well to begin by reference to the decision of the Tribunal in JL (Domestic Violence: evidence of procedure) India [2006] UKAIT 00058 in which the Tribunal observed that:
In Ishtiaq [2007] EWCA Civ 386 (a transcript of which was most helpfully provided to me by Mr Symes) the Court upheld the essential finding that perceivable evidence of a Rule 289A issue relating to the domestic violence was not limited to what was specified in the IDI.
Indeed Dyson LJ giving the judgement of the Court said inter alia this:
In AG and in the course of his judgment, Laws LJ had this to say at paragraph 18:
At paragraph 19 of his judgment Laws LJ continued inter alia:
I would thus agree with Mrs Tanner's most helpful and frank submission and one that was indeed echoed by Mr Symes before me, that in effect and as indeed accepted not least at paragraph 27 of the Immigration Judge's determination, that the Immigration Judge made no adverse credibility findings. Indeed it was clear that believed everything that the Appellant had to say.
It was the inference that the Immigration Judge drew from those findings that satisfy me in all the circumstances that he materially erred in law. The Immigration Judge simply failed to appreciate that on the basis of his factual findings, it was apparent that the violence the Appellant suffered at the hands of her husband, was the " causative force in the breakdown of the marriage".
For the sake of completeness, I would agree with Mr Symes' further submission that the Immigration Judge had at one point determined that the marriage had broken down in March 2008 but elsewhere concluded that it " was after the trial that (the Appellant) acknowledged the marriage was over".
That was a material error of law given that the appeal failed on account of the Immigration Judge's dissatisfaction with the evidence said to show that domestic violence was the reason for the breakdown of the marriage and hence the timing of its breakdown was a critical issue in the fact-finding process. The Appellant had actually left the matrimonial home after suffering further domestic violence early in March 2008 and then felt obliged to take refuge at a Community Centre and indeed never returned to the matrimonial home thereafter.
On the Immigration Judge's factual findings, it should have been apparent to him that but for the domestic violence in this case, the marriage would not have ended. It was only the domestic violence and its consequences that forced the Appellant out of the family home.
I would add the observation, that whenever a relationship breaks down one or both parties to that relationship are likely to announce an intention to leave and/or in fact leave the matrimonial home. Whilst that might define when a relationship breaks down it does not explain the cause . In order to assess the cause of the breakdown it is also necessary to look at the relationship as a whole .
In that regard, the Immigration Judge in the present case, in deciding that the breakdown of the marriage was not caused by the domestic violence suffered by the appellant as a consequence of her husband's conduct, failed to remind himself that he had accepted that the Appellant had been the victim of domestic violence, who had also been subjected to frequent verbal abuse. Her husband had threatened to cancel her visa. He had on one occasion pushed her face into the sofa. He had told the Appellant's family in Pakistan that the Appellant had had an affair. He had called the police and brought false charges against the Appellant for an assault that in truth (as indeed found subsequently by the Hendon Magistrates) was in relation to his attack upon her in which the appellant had purely acted in self-defence.
There was no evidence before the Immigration Judge in the present case that the Appellant was in any way to blame for the breakdown of her marriage or for the deterioration in the relationship. The responsibility for the breakdown on the Immigration Judge's findings lay fairly and squarely at the feet of the husband whose boorish conduct was on any view thoroughly reprehensible.
For the above reasons, I agreed with the parties, that the Immigration Judge thus materially erred in law. I was urged to proceed to make a fresh decision. In the light of the fact, not least that the Immigration Judge had accepted effectively in its entirety the Appellant's account as credible, I saw no reason why I could not proceed to do so.
Notably Mrs Tanner informed me that she did not intend to make any further submissions.
Mr Symes relied on his earlier submissions and indeed the grounds of application that he had authored, but he also interestingly provided me with a copy of the letter that the Appellant had submitted to the Respondent in support of her application for indefinite leave to remain. It would be as well to set out its content:
I would agree with Mr Symes that as such, the contents of that letter in support of the Appellant's application aptly and accurately summarises the Appellant's case. It was a letter before the Immigration Judge that he would appear to have overlooked.
I find in the light of the Immigration Judge's positive findings and for the reasons that I have outlined above, that it cannot be said that the husband's behaviour towards his wife did not demonstrate the characteristics that could be separated out from the end of the marriage.
I find that the Appellant has on the balance of probabilities, discharged the burden upon her to show that the violence of the Appellant's husband towards her was the causative force in the breakdown of the marriage.
I therefore find that the decision of the Secretary of State was not in accordance with the law and the Immigration Rules applicable to this case.
I will, therefore, substitute a decision allowing the Appellant's immigration appeal.
Decision
The Immigration Judge materially erred in law.
The decision I have substituted for that of the Immigration Judge is to allow the appeal in respect of the Immigration Rules.
Signed
Senior Immigration Judge Goldstein