Ishtiaq v Secretary of State for the Home Department

Under paragraph 289A(iv) of the Immigration Rules HC 395, the Secretary of State acts as the decision-maker in each individual case. The provision does not permit the Secretary of State, through instructions to caseworkers, to restrict proof of domestic violence to prescribed classes of documents.

The caseworker should ordinarily begin with the evidential guidance in the Immigration Directorate Instructions. Where an applicant reasonably explains an inability to produce the listed evidence, the applicant must have an opportunity to provide other relevant evidence. Instructions cannot remove the caseworker’s discretion to decide what evidence is required.

The appellant was admitted as the spouse of a person settled in the United Kingdom. She applied for indefinite leave to remain after her marriage permanently broke down because of domestic violence. Although an immigration judge accepted her oral evidence and allowed her appeal, the Asylum and Immigration Tribunal held that paragraph 289A(iv) of the Immigration Rules HC 395 required documents of a kind specified in the Immigration Directorate Instructions.

The Court of Appeal considered whether paragraph 289A(iv) gave the Secretary of State power to prescribe exclusive categories of evidence through general instructions, or instead conferred discretion on the caseworker to decide what evidence was required in the individual case. It also examined the alternative reasoning in JL (Domestic violence: evidence and procedure) India [2006] UKAIT 58.

1. Appeal allowed. Dyson LJ, with whom Thomas and Chadwick LJJ agreed, held that paragraph 289A(iv) of the Immigration Rules HC 395 conferred discretion on the Secretary of State as decision-maker in the individual case. It did not authorise the Secretary of State, acting in a policy-making capacity, to prescribe through caseworker instructions the exclusive forms of evidence by which domestic violence could be established.

2. Paragraph 289A was intended to enable spouses and partners to leave abusive relationships during the probationary period without losing the opportunity to obtain indefinite leave to remain. It was not a concession to be construed strictly. A construction excluding cogent and relevant evidence merely because it was not among the documents listed in the Immigration Directorate Instructions would defeat that purpose.

3. A caseworker should ordinarily begin with the guidance in section 4 of chapter 8 of the Instructions. If the applicant cannot produce the listed evidence, the caseworker should seek an explanation. A reasonable explanation requires the applicant to be given an opportunity to produce other relevant evidence. In any event, general instructions cannot remove the discretion conferred by paragraph 289A(iv).

4. The tribunal’s contrary approach in RH (Para 289A/HC395-no discretion) Bangladesh [2006] UKAIT 43 was wrong. Its conclusion that the discretion extended only to the Secretary of State’s formulation of the Instructions was displaced.

5. The reasoning in JL (Domestic violence: evidence and procedure) India [2006] UKAIT 58 was also rejected, although that tribunal had reached the correct practical conclusion. Paragraph 289A was made under section 3(2) of the Immigration Act 1971, not section 31A. It prescribed substantive evidential requirements rather than procedures governing the validity of applications. Nor did section 85(4) of the Nationality, Immigration and Asylum Act 2002 permit a tribunal to disregard the Immigration Rules.

6. As the immigration judge had heard the appellant, found her credible and accepted that domestic violence caused the permanent breakdown of the marriage, his decision was restored. It was unnecessary to determine the arguments under articles 8 and 14 of the European Convention on Human Rights.

1. Court of Appeal (Civil Division): The appeal was allowed and the immigration judge’s decision restored: [2007] EWCA Civ 386.

2. Asylum and Immigration Tribunal: On reconsideration, the tribunal held that the appellant had not produced evidence of a prescribed kind under paragraph 289A(iv) of the Immigration Rules HC 395. It dismissed her appeal on immigration and human-rights grounds.

3. Immigration judge: The appellant’s evidence was accepted as credible. The judge found that her marriage had permanently broken down because of domestic violence and allowed her appeal.