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

A Secretary of State operating a domestic violence concession outside the Immigration Rules may define its scope and impose specific evidential conditions. Such conditions are not irrational merely because they are exclusive or might have been framed differently. A different outcome in a seemingly similar case does not establish unlawful inconsistency where the material does not reveal the reasoning or a mistake. An adjudicator’s view on how the concession should be applied is not binding on the Secretary of State where the concession falls outside the adjudicator’s appellate jurisdiction.

An Indian national entered the United Kingdom as the dependent spouse of a person with indefinite leave to remain. After leaving the matrimonial home, she sought removal of the restriction on her leave. An adjudicator found that she had suffered domestic violence and indicated that the Secretary of State should reconsider her case under the domestic violence concession. The Secretary of State maintained the refusal because the required formal evidence had not been produced.

The claimant sought judicial review, alleging unlawful fettering of discretion, inconsistent treatment compared with another applicant, and failure to follow the adjudicator’s findings. Mr Justice Owen rejected the application. The Court of Appeal considered whether there was any arguable legal basis for interference.

The Court of Appeal agreed with Owen J and refused the application. The domestic violence concession was framed in specific terms and operated through a clear policy governing a discretionary grant outside the Immigration Rules. The Secretary of State was entitled to prescribe the conditions and forms of evidence required. The policy was not irrational, even though the evidential requirements might have been expressed differently or less exclusively.

1. The apparently favourable treatment of Ms Kulwinder Kaur did not establish unlawful inconsistency. The available material showed similarities between the cases, but did not disclose the reasoning underlying that decision or establish that the claimant’s case had been determined by mistake.
2. The adjudicator’s indication did not determine an issue within the appellate process. An adjudicator determines matters concerning the application of the Immigration Rules, whereas the domestic violence concession was for the Secretary of State to operate. The indication was therefore only the adjudicator’s view on how the concession might be applied. The ultimate decision remained with the Secretary of State.
3. [1998] Imm AR 84 was distinguished. That case concerned an adjudicator’s conclusion which disposed of the appeal before him. It did not require the Secretary of State to accept an adjudicator’s view on the operation of a concession outside the adjudicator’s jurisdiction.

The Secretary of State had necessarily considered the adjudicator’s views when reconsidering the case, but was entitled to adhere to the policy. No legal error justified judicial review. Permission to appeal and an extension of time for filing the appellant’s notice were also refused.

1. Court of Appeal (Civil Division) — [2004] EWCA Civ 818: refused the application and refused permission to appeal and an extension of time.
2. High Court of Justice, Queen’s Bench Division, Administrative Court — decision of Mr Justice Owen, citation not stated: rejected the application.