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

In an application for indefinite leave to remain as a victim of domestic violence, the decision-maker must evaluate the entirety of the evidence through a structured and sequential process. The Immigration Directorate’s Instructions provide guidance, not inflexible mandatory conditions. An applicant’s evidence must not be discarded merely because it lacks independent corroboration, particularly where a reasonable explanation exists. Evidence obtained by the decision-maker which is materially relevant should ordinarily be disclosed, with an opportunity to comment. The decision-maker must also assess the timing and causation of marital breakdown as a composite factual and evaluative question. A decision based on selective evidence, material misstatements, undisclosed material, or an objectively closed mind may be unlawful, irrational and procedurally unfair.

The claimant, an Iranian national, sought judicial review of the Secretary of State’s third refusal of her application under paragraph 289A of the Immigration Rules for indefinite leave to remain as a victim of domestic violence. Her spouse had reported that the marriage had broken down, leading to curtailment of her leave without effective notice. The claimant relied on evidence including police records, medical records and her own account of sustained controlling, emotional and physical abuse.

The Secretary of State treated the claimant’s evidence as insufficiently independent, relied heavily on the spouse’s account and undisclosed police material, and concluded that the marriage had broken down before the alleged final assault. The issues included the proper use of the guidance, the evaluation of uncorroborated evidence, procedural fairness, irrationality and the effect of the earlier curtailment decision.

1. The claim succeeded. The refusal decision dated 14 September 2010 was quashed. The Secretary of State was required to reconsider the claimant’s paragraph 289A application.
2. Paragraph 289A(iv) requires the applicant to establish that the relationship permanently broke down before the end of the relevant probationary period as a result of domestic violence. The statutory-style wording concerns ordinary factual questions which must be assessed sensibly and practically.
3. The guidance in section 4 of chapter 8 of the Immigration Directorate’s Instructions was non-mandatory. It required a structured assessment of all relevant evidence, but did not permit the decision-maker to reject evidence solely because it was unsupported by independent documentary material. Where the applicant could not provide the suggested evidence and gave a reasonable explanation, other relevant evidence had to be considered.
4. The decision-maker had to consider the claimant’s own evidence, medical evidence, police material, counter-allegations and the wider history of the relationship. The question whether domestic violence caused the breakdown of a marriage required an assessment of the pattern of conduct and the evidence as a whole. A statement that a marriage broke down on a particular date was a value judgment based on facts, not a pure statement of fact.
5. The refusal decision materially misstated the police evidence, wrongly discounted the GP records, relied on the spouse’s uncorroborated account as decisive, failed to investigate obvious evidential questions and ignored relevant evidence. Those errors rendered the factual conclusions irrational and Wednesbury unreasonable.
6. Procedural fairness required disclosure of materially relevant documents obtained from the police or the spouse where the claimant had not seen them, together with an opportunity to comment or provide further evidence. The decision was also procedurally flawed because it was made by the same decision-maker who had made the immediately preceding withdrawn refusal decision, creating an objective concern about impartiality.
7. The earlier curtailment decision did not create an issue estoppel. The Secretary of State could not rely in any future consideration on the curtailment decision, its findings about the timing or cause of the marital breakdown, the non-service of the decision, the absence of an appeal, or the claimant’s failure to respond to the one-stop notice.

First instance judicial review decision. The judgment does not state any prior appellate decision in the same litigation.