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

An applicant seeking indefinite leave to remain as a victim of domestic violence must show that the marriage broke down as a result of that violence. Where the alleged violence was not the cause of the breakdown, refusal of the application is not unreasonable or irrational. A later Article 8 challenge does not automatically fall within an existing judicial review claim. Whether to permit a late amendment is discretionary, particularly where the proceedings are old and the additional claim is extremely dubious.

The applicant, a Pakistani national married to a British citizen, sought indefinite leave to remain as a victim of domestic violence after the marriage had broken down. The Secretary of State refused the application, finding that he had not established either domestic violence or the required causal connection with the breakdown of the marriage.

Permission for judicial review was refused on the papers. On oral renewal, HHJ Gosnell refused permission and declined a late amendment introducing a challenge under Article 8. Sir Wyn Williams upheld those conclusions. The applicant sought a further oral renewal before the Court of Appeal, but neither party attended and no adjournment was requested. The central issues were whether the refusal of indefinite leave to remain was unlawful and whether the Article 8 challenge should be admitted by amendment.

The Court of Appeal refused the application. The applicant and respondent did not attend, and the applicant’s solicitors had been unable to contact him. No adjournment was sought, so the court proceeded to determine the old application.

1. The applicable domestic-violence route required the applicant to establish that he was a victim of domestic violence and that the marriage had broken down as a result of that violence. The finding that the alleged domestic abuse was not the cause of the breakdown justified refusal of indefinite leave to remain. The decision was therefore neither unreasonable nor irrational.

2. The Article 8 decision was made after the original judicial review proceedings had been issued. It was not automatically part of the subject matter of those proceedings. A court has a discretion whether to permit an amendment to introduce a challenge to a subsequent decision.

3. That discretion was properly exercised against amendment. The proceedings were already approximately 18 months old, and the Article 8 claim was regarded as extremely dubious. The Court of Appeal adopted the reasons given by HHJ Gosnell and Sir Wyn Williams.

Order: Application refused.

• Court of Appeal (Civil Division): oral renewal of the application was refused.
• Earlier judicial review proceedings: permission was refused on the papers by Mr Ockelton. HHJ Gosnell refused the oral renewal and declined permission for a late amendment concerning Article 8. Sir Wyn Williams upheld those conclusions.