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

A domestic violence claim is not necessarily a human rights claim. Whether it is one depends on the facts and on whether the claimant asserts facts capable of engaging Convention rights and showing that removal would interfere with them. Where a domestic violence claim is also a human rights claim, primary legislation preserves a right of appeal which immigration rules cannot remove. A procedurally fair decision requires disclosure of the gist of serious adverse allegations and an impartial evaluation of competing accounts. Decision makers must assess the evidence in context and address relevant guidance, including the possibility that threats to report a victim to immigration authorities may form part of domestic violence.

AT applied for indefinite leave to remain under the domestic violence provisions of the Immigration Rules after her relationship with her British husband broke down. The application and subsequent administrative review were refused. She challenged both the refusal decisions and the provisions of Appendix AR which substituted administrative review for a right of appeal in domestic violence cases.

The court considered whether every domestic violence claim was necessarily a human rights claim, whether Appendix AR was incompatible with the statutory right of appeal, and whether the Secretary of State’s evidential assessment was procedurally unfair and irrational.

1. Ground 2: The court rejected the submission that every domestic violence claim is necessarily a human rights claim under section 113 of the Nationality, Immigration and Asylum Act 2002. Applying the minimum criteria identified in R (Alighanbari) v Secretary of State for the Home Department [2013] EWHC 1818 (Admin), the claimant must assert facts capable of constituting existing or prospective private or family life, interference with that life, and a desire to remain in the United Kingdom in order to maintain or develop it. The criteria can be adapted where other Convention rights are relied on.

2. Some domestic violence claims are human rights claims and others are not. Accordingly, delegated legislation may replace appeal rights with administrative review for domestic violence claims which are not human rights claims. It cannot remove the statutory right of appeal for a domestic violence claim which is also a human rights claim under section 82(1)(b) of the 2002 Act.

3. Appendix AR was wrongly drafted because its literal wording appeared to assume that domestic violence claims were not human rights claims. The court declined to quash it. Instead, it adopted a purposive and strained construction, reading the relevant exception as applying only where the application was not a human rights claim. The second ground therefore failed.

4. Ground 1: The fairness of the decision-making process was fact-sensitive. It was procedurally unfair not to disclose to AT, at least in gist, the serious allegations made by her husband in his detailed letter, so that she could respond. The Secretary of State was not required to disclose the letter itself.

5. The decision maker had accepted the husband’s account without proper evaluation and used it as the principal reason for rejecting AT’s evidence. The competing accounts were not assessed even-handedly. The process therefore lacked the anxious and impartial assessment required in the circumstances. The court did not accept that further enquiries of the police were required, but held that the Secretary of State should have addressed the guidance stating that threats to report a victim to the authorities and procure removal may themselves form part of domestic violence.

6. The first ground succeeded. The Secretary of State’s refusal decision and the administrative review decision were quashed, and the matter was remitted to the Secretary of State for fresh consideration.

This was a first-instance judicial review in the Administrative Court. The claim was brought after the Secretary of State refused AT’s application for indefinite leave to remain and rejected her administrative review.