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

On a renewed application for permission to appeal in judicial review proceedings, the Court of Appeal adjourned the application so that the proposed respondent could be represented and the court could receive assistance on the construction and operation of an immigration concession. Where the lower court has accepted a material factual error in the Secretary of State’s reasoning, it may be arguable that a later stage of the decision-making process was addressed on a legally mistaken basis. The court’s observations identified issues for the assisted hearing. They did not determine whether permission should be granted or whether the Secretary of State’s decision was lawful.

The applicant challenged the Secretary of State’s refusal to bring her within the Domestic and Violence Concession, announced in 1999 for certain spouses and unmarried partners who had suffered violence. A case worker’s report and subsequent correspondence explained why the applicant was considered not to qualify.

Mr Jack Beatson QC, sitting as a Deputy High Court Judge, refused the application on 26 April 2002. Permission was later refused on paper by Sir Philip Otton on 9 July 2002. The applicant renewed the application before the Court of Appeal. The respondent did not attend or have representation.

The central issues included the construction of the concession, the relevance of an injunction obtained after the relationship had broken down, and whether an accepted error about violence during the marriage affected the separate question of what caused the breakdown.

Lord Justice Pill gave the judgment. Lord Justice Chadwick and Lord Justice Jonathan Parker agreed.

1. Procedural disposition. The renewed application for permission to appeal was adjourned because the court considered that it should have the assistance of counsel for the proposed respondent. To avoid further delay, the court directed that the hearing should be arranged with the appeal to follow if permission were granted.
2. Issues identified for argument. The court indicated that the application raised the construction of the Domestic and Violence Concession and the relevance of an injunction obtained after the breakdown, rather than before it. It also identified the need to consider the lawfulness of the Secretary of State’s decision and the legal test governing operation of the concessionary system.
3. Effect of the accepted factual error. The Deputy High Court Judge had accepted that the Secretary of State was wrong to conclude that there had been no violence during the marriage. If that assessment was correct, it was arguable that the Secretary of State had approached the separate stage concerning the cause of the breakdown on the wrong basis. The Court of Appeal did not determine that issue.
4. Directions. The application was to be listed for half a day. An additional skeleton argument was to be prepared by 1 September 2002, with a reply by 15 September 2002. The application for one member of the court to be female was refused.

• Court of Appeal (Civil Division): The renewed application for permission to appeal was adjourned, with the appeal to follow if permission was granted: [2002] EWCA Civ 1352.
• Administrative Court: Mr Jack Beatson QC, sitting as a Deputy High Court Judge, refused the application on 26 April 2002.
• Paper permission application: Sir Philip Otton refused permission on 9 July 2002.