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

The Domestic Violence Concession requires an applicant to establish domestic violence during the probationary period while the relationship subsisted, that the violence caused the breakdown, and specified supporting evidence. A non-molestation or protection order obtained after separation is not excluded merely by its date. The Secretary of State must examine the evidence on which it was based, consider the history as a whole, and make further inquiries where necessary. A victim need not remain with the alleged abuser to obtain protection. Where violence during the relationship is established, it will normally be treated as a significant cause of the breakdown. A causation assessment made while rejecting or failing properly to investigate the violence is unsafe.

The appellant, a Russian national, had limited leave to remain as the spouse of a person present and settled in the United Kingdom. Following a violent altercation during the marriage, she was arrested and left the matrimonial home under a bail condition. Her leave was curtailed and the marriage later ended.

After separation, she obtained a non-molestation order with a power of arrest and applied for indefinite leave under the Domestic Violence Concession. The Secretary of State refused the application, reasoning that the order related to post-separation conduct and that domestic violence had not caused the breakdown. The Administrative Court found an error concerning the violence issue but dismissed the claim because the error was considered immaterial on causation. The appeal concerned whether that approach was correct and whether the violence finding should be disturbed.

Disposition

The Court of Appeal unanimously allowed the appeal, dismissed the challenge to the finding on the domestic violence issue, quashed the Secretary of State’s decision and remitted the application for reconsideration. Permission to appeal was granted. The respondent was ordered to pay the costs in both courts.

1. Requirements of the concession. The applicant had to satisfy the stated criteria, including limited spousal leave, cessation of cohabitation, domestic violence during the probationary period while the relationship subsisted, causation of the breakdown, and proof of violence. The specified order, conviction or police caution was critical supporting evidence, but its existence did not make the concession automatically determinative. A refusal required a full and detailed explanation.
2. Orders obtained after separation. Lady Justice Hale and Lord Justice Judge held that the Secretary of State could not reject the claim simply because the non-molestation order was obtained after separation. The evidence underlying the order had to be examined in the context of the whole history. Lord Justice Pill agreed that further inquiries were required, but cautioned that the order alone did not necessarily establish that violence had occurred during the relationship. Under section 47(6) of the Family Law Act 1996, a power of arrest could be attached where violence was used or threatened, without the order necessarily containing detailed factual findings.
3. Causation. The relevant violence need not be the sole cause of the breakdown. It was sufficient that it was a significant contributory factor. Where a spouse left after a violent altercation because a bail condition prevented return home, that could be equivalent in substance to being locked out by the other spouse. The causation conclusion was therefore unsafe because it had been reached while the Secretary of State rejected, or failed properly to investigate, the evidence of violence.
4. Paragraph 4.3 of the guidance contemplated that, where an order or conviction confirmed domestic violence during the subsisting relationship and probationary period, indefinite leave should normally be granted without further inquiry. Further inquiry could still be justified in an appropriate case, but the normal assumption was that the violence contributed to the breakdown.

1. Court of Appeal (Civil Division). The appeal was allowed, the decision was quashed and the application was remitted to the Home Secretary for reconsideration: [2002] EWCA Civ 1797.
2. Administrative Court, Queen’s Bench Division. On 26 April 2002, the Deputy High Court Judge found an error in the Secretary of State’s treatment of the violence issue but dismissed the judicial review application because the error was considered immaterial to causation.