Suliman, R (On the Application Of) v Secretary of State for the Home Department

Where the Secretary of State considers an application for leave outside the Immigration Rules on the basis that an applicant was a victim of domestic violence, the evidence must be assessed fairly and lawfully. The Secretary of State may adopt the balance of probabilities as the applicable standard under the relevant policy. A decision-maker must confront plausible explanations for an applicant’s failure to report abuse and must take account of material supporting evidence. Failure to do so renders the decision unlawful.

The claimant, a Sudanese national, challenged the refusal of indefinite leave to remain as a victim of domestic violence. His application fell outside the specific eligibility requirements in Appendix FM because his previous leave had not been granted under the relevant partner provisions.

The decision-maker nevertheless considered whether the claimant’s relationship had broken down because of domestic violence. The claimant argued that this assessment was legally flawed because relevant explanations and supporting evidence had not been addressed. The central issue was whether the Secretary of State had lawfully assessed the domestic-violence evidence when considering leave outside the Rules.

1. Outcome. The claim was allowed and the decision was quashed.
2. The Secretary of State had intended to, and did, consider whether the claimant should be granted leave outside the Immigration Rules as an alleged victim of domestic violence. The wording of the decision letter had that natural and ordinary meaning. The domestic-violence assessment was therefore relevant to the exercise of discretion outside the Rules.
3. The Secretary of State was entitled to apply the balance of probabilities, consistently with the Home Office policy Victims of domestic violence and abuse. The claimant’s submission for a lower standard of proof was rejected.
4. The decision was nevertheless unlawful. The Secretary of State accepted that the claimant had attended hospital with injuries consistent with his account but rejected the allegation that his wife had caused them. In doing so, she failed to address his explanations for not reporting the abuse, including shame, fear, residual affection and concern that his wife might be deported or prosecuted.
5. Those explanations were inherently plausible and could provide at least as convincing an explanation for the absence of contemporaneous reports as the conclusion that the assaults had not occurred. Fairness required them to be confronted and evaluated.
6. The Secretary of State also failed to take account of highly material witness evidence from two men who attended hospital after the claimant’s head injury and witnessed his wife threatening him with deportation if he disclosed the abuse. The evidence directly supported his account and required a conclusion.

The claim was transferred from the Upper Tribunal (Immigration and Asylum Chamber) to the Administrative Court because of a proposed vires challenge to the Immigration Rules. Permission was granted by Upper Tribunal Judge Coker. The vires argument was not pursued.