Kausar, R (on the application of) v Secretary of State for the Home Department

At the permission stage, an applicant challenging refusal of indefinite leave to remain as a victim of domestic violence may argue that the Secretary of State was not entitled to insist on strict compliance with evidential requirements in the Immigration Directorate Instructions. If those requirements are not binding, the evidence may require fresh consideration. A refusal of an application for leave to remain by a person with no extant leave does not, without more, fall within the statutory categories of immigration decision attracting a right of appeal. The fresh-claim procedure in paragraph 353 of the Immigration Rules concerns human rights and asylum claims and cannot be used to create an appeal right for a different application.

The court considered two linked applications for permission to apply for judicial review by a sister and brother who had entered the United Kingdom as spouses, overstayed, and later applied for indefinite leave to remain as victims of domestic violence. Their applications were refused. Each challenged the refusal on the basis that the Secretary of State had acted unreasonably or improperly, and that the refusal attracted a statutory right of appeal.

Ms Kausar’s application had been considered on the papers and renewed for oral hearing. Mr Mahmood’s application had initially been refused and was renewed. The central questions were whether the domestic violence refusals were arguably unlawful because of the evidential approach adopted, and whether the refusals were immigration decisions under section 82 of the Nationality, Immigration and Asylum Act 2002.

1. Domestic violence refusal issue. The material supplied by the claimants could not sensibly be regarded as meeting paragraph 5.7 of the Immigration Directorate Instructions. However, the court could not conclude at the permission stage that the Secretary of State was unarguably entitled to insist on strict compliance with that paragraph. The reasoning in JL (Domestic violence: evidence and procedure) [2006] UKAIT 00058, although arising in an appeal context, arguably applied by parity of reasoning.
2. If the evidential requirements in paragraph 5 of the Instructions were not binding, it was arguable that the Secretary of State had to reconsider the evidence afresh. Permission was therefore granted on the domestic violence refusal issue, subject to re-amendment of the grounds to challenge the entitlement to insist on strict compliance.
3. Statutory appeal issue. The claimants’ applications were expressly applications for leave to remain. A refusal of such an application, where the applicants had no extant leave capable of being varied, was not one of the immigration decisions listed in section 82(2) of the Nationality, Immigration and Asylum Act 2002. The argument under section 82(2)(d) therefore did not arise.
4. Paragraph 353 of the Immigration Rules was confined to further human rights or asylum submissions and did not apply to the present domestic violence applications. Nor could the court compel the Secretary of State to make a fresh immigration decision solely to confer a right of appeal. Permission was refused on the statutory appeal issue.

These were first-instance judicial review permission applications. Ms Kausar’s application had been considered on the papers by Lindsay J, who treated the statutory appeal issue as potentially arguable. Mr Mahmood’s application had initially been refused on the papers by Lloyd Jones J and was renewed. The two applications were then heard together by the High Court.