Butler, R (on the application of) v Secretary Of State For Home Department

For permission purposes, a challenge to an immigration decision may be arguable where the decision-maker’s treatment of a non-molestation order and the supporting evidence is open to question. A proposed challenge to the criteria or level of proof required under a domestic-violence concession may also be arguable on human-rights grounds. Where such fallback grounds are properly raised, permission should not be unnecessarily restricted. Domestic-violence issues do not, without more, require a woman judge; a male judge may be capable of understanding and assessing the relevant submissions.

The claimant sought permission to challenge by judicial review the Secretary of State’s refusal to treat her as qualifying for the Domestic Violence Concession and his view that removal would not breach Articles 8 and 3 of the European Convention on Human Rights. She relied on a non-molestation order obtained after separation and evidence of threats by her husband. Burton J dismissed her application for permission on 1 August 2001. On the application for leave to appeal, the Court of Appeal considered whether the evidential assessment, the effect of the order, the concession’s criteria and proof threshold, and the human-rights challenge were arguable. It also considered a request for a woman judge to hear the matter.

Lord Justice Potter granted permission to apply for judicial review pursuant to CPR 52.15.3, rather than granting leave to appeal. The application was arguable and deserving of leave. Legal aid was also granted.

1. Evidential challenge. The Secretary of State had considered a non-molestation order made after the claimant and her husband had separated, together with the claimant’s witness statement and the surrounding circumstances. It was arguable that the order, read with the statement on which it was based, evidenced violence before the marriage broke down. It was also arguable that the making of the order itself was sufficient to qualify the claimant for the Domestic Violence Concession. Those issues were left for the substantive proceedings.
2. Criteria and human-rights challenge. The court declined to restrict the grounds of argument. The claimant could pursue the fallback challenge to the adequacy of the concession’s criteria and/or the level of proof required by the Secretary of State, which was said to involve non-compliance with the European Convention on Human Rights. The court decided only that the proposed challenge was arguable; it did not determine whether removal breached Articles 8 or 3.
3. Constitution of the court. The request for a woman judge was refused. The court considered that submissions about why a person suffering domestic violence might not complain or seek a remedy were not matters which only a woman judge could understand. No direction was made concerning the constitution of the court.

1. High Court of Justice: Burton J dismissed the claimant’s application for permission to move for judicial review on 1 August 2001.
2. Court of Appeal (Civil Division): [2001] EWCA Civ 1960. Lord Justice Potter granted permission to apply for judicial review pursuant to CPR 52.15.3, rather than leave to appeal, and granted legal aid.