AG (India) v Secretary of State for the Home Department

For an application under paragraph 289(A)(iv) of the Immigration Rules House of Commons Paper 395, evidence of domestic violence is not confined to the documentary categories in the Secretary of State’s instructions. The tribunal must assess all relevant evidence and decide whether domestic violence occurred and caused the relationship to break down permanently. Domestic violence includes threatening behaviour and psychological or emotional abuse; proof of bodily injury is unnecessary. A tribunal must make clear findings on the alleged violence and causation, and give proper, clear and forceful reasons if it rejects oral evidence supported by other material. Where the evidence permits it, domestic violence may be found to be a substantial cause of the breakdown.

The appellant, an Indian national admitted to the United Kingdom as the spouse of a settled British citizen, applied for indefinite leave to remain as a victim of domestic violence. The Secretary of State refused the application because the evidence did not conform to the categories in the Immigration Directorate Instructions.

Following reconsideration, the Asylum and Immigration Tribunal accepted that the marriage had permanently broken down before the appellant returned to India, but concluded that she had not established that the breakdown resulted from domestic violence. The appeal concerned the tribunal’s treatment of the evidential guidance, the alleged requirement to prove injury, and its assessment of the evidence and causation.

Appeal allowed. Laws LJ gave the judgment, with which Rix LJ and Lloyd LJ agreed.

1. Paragraph 289(A)(iv) of the Immigration Rules House of Commons Paper 395 does not confine the tribunal’s assessment to the evidence listed in the Immigration Directorate Instructions. The decision in JL (Domestic Violence; evidence and procedure) India [2006] UKAIT 00058 and the subsequent Court of Appeal decision in Ishtiaq v SSHD [2007] EWCA Civ 386 confirmed that relevant evidence outside those categories may be considered.
2. The immigration judge appeared to have treated proof of physical or mental injury as necessary. That was too narrow. The relevant concept of domestic violence includes threatening behaviour and psychological, physical, sexual or emotional abuse, including conduct falling short of physical violence.
3. The immigration judge made no clear finding on whether domestic violence had occurred or on the scale of the alleged violence. If the appellant’s account and supporting evidence were to be rejected, clear and forceful reasoning was required. The judge’s sceptical observations did not explain why none of the oral, documentary or largely hearsay evidence assisted the appellant.
4. The respondent’s submission that no reasonable immigration judge could find the violence causative of the breakdown was rejected. The facts that the husband sent the appellant to India, pursued divorce proceedings, and that she hoped the marriage might be saved had force, but did not legally exclude a finding that the violence was a substantial cause. Proper reasoning on both domestic violence and causation was a legal standard, and its absence rendered the decision unlawful.

The formal order was: Appeal allowed.

1. Court of Appeal (Civil Division) — In [2007] EWCA Civ 1534, the appeal was allowed against the Asylum and Immigration Tribunal’s second-stage reconsideration decision.
2. Asylum and Immigration Tribunal — Immigration Judge Trethowan dismissed the appellant’s appeal on 20 November 2006. Senior Immigration Judge Mckee had granted reconsideration at the first stage on 21 August 2006.
3. Secretary of State for the Home Department — The application for indefinite leave to remain was refused on 6 June 2006.