AN (Pakistan) v Secretary of State for the Home Department

For an application under paragraph 289A of the Immigration Rules, domestic violence must reach a minimum level of seriousness assessed in context. It is not confined to actual physical violence or prescribed categories of evidence. A relationship must also have permanently broken down because of domestic violence. A tribunal may reject the claim on credibility grounds where its findings are reasonably open to it. In a suicide-risk removal case, the tribunal must apply the principles in J v Secretary of State for the Home Department [2005] EWCA Civ 629. The appeal was dismissed because no legal error or sufficient Convention risk was established.

The appellant, a Pakistani national admitted to the United Kingdom as the spouse of a settled person, sought indefinite leave to remain as a victim of domestic violence. The Secretary of State refused the application. Her first appeal was dismissed by Designated Immigration Judge Manuell; reconsideration found a material error of law, but a de novo hearing before Designated Immigration Judge Woodcraft again dismissed the appeal on 22 December 2008.

She appealed on grounds concerning the meaning and assessment of domestic violence, alleged factual errors in the credibility findings, and the risk of suicide on removal under articles 3 and 8 ECHR. The central issues were whether the tribunal had lawfully applied paragraph 289A and whether removal engaged Convention rights.

The appeal was dismissed unanimously.

1. Paragraph 289A. The requirement concerning domestic violence did not arise unless the relevant spousal relationship had broken down. The tribunal had not been satisfied that the marriage had broken down, and the grounds did not challenge that finding. The Court refused permission for a late amendment which sought to raise the issue. That unchallenged finding was independently fatal to the application.
2. Meaning and assessment of domestic violence. The term is not confined to actual physical violence. It may include other forms of abuse, but the conduct must reach a minimum level of seriousness assessed in its context and particular circumstances. The applicant was not restricted to the categories of documentary evidence identified in guidance, as established in AI (Pakistan) v Secretary of State for the Home Department [2007] EWCA Civ 386.
3. The tribunal considered the allegations of pushing, threats and the suicide attempt, and was entitled to reject the alleged connection between those matters and domestic violence. Its credibility findings were reasonably open on the evidence. The anthropological report had been considered. The analogy with Y and Another (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 362 failed because that case concerned a different determination and did not establish that the judge had adopted an improper rejection-driven approach.
4. Suicide risk. The tribunal correctly directed itself by reference to the principles in J v Secretary of State for the Home Department [2005] EWCA Civ 629. Although the issue had not been argued before it, the tribunal addressed it sufficiently. The judge had rejected the evidence of hostility and ostracism in Pakistan, noted that earlier adverse decisions had not prompted self-harm, and found that treatment facilities were available. The decision in Y and Another (Sri Lanka) did not alter the principles in J. Articles 3 and 8 ECHR were therefore not engaged.

1. Court of Appeal (Civil Division): dismissed the appeal against the de novo determination of Designated Immigration Judge Woodcraft.
2. Asylum and Immigration Tribunal: after reconsideration found a material error in the first determination by Designated Immigration Judge Manuell, but the subsequent de novo hearing dismissed the appeal against the Secretary of State’s refusal.