Immigration — Leave to enter — Indefinite leave to remain as victim of domestic violence — Refusal of leave to spouse seeking leave before expiration of probationary period — Refusal based on spouse’s failure to provide evidence specified by Immigration Directorate Instructions — Whether instructions to be applied inflexibly — Immigration Rules HC 395, para 289A(iv)

Ishtiaq v Secretary of State for the Home Department

CA: (Chadwick, Dyson and Thomas): 26 April 2007

Para 289A(iv) of the Immigration Rules HC 395 gave a caseworker discretion to decide what evidence to require an applicant to produce in the particular case. In exercising that discretion it would be usual to apply guidance given in section 4 of Chapter 8 of the Immigration Directorate Instructions (IDIs); but if that were not possible the applicant should be given the chance to produce such other relevant evidence as he or she might wish.

The Court of Appeal so stated allowing the appeal of the applicant, Ahmed Iram Ishtiaq, from the Asylum Immigration Tribunal dated 9 March 2006. The Tribunal allowed the Secretary of State’s appeal against the Immigration Judge’s decision whereby the applicant’s appeal was allowed from the Secretary of State’s refusal of her application for indefinite leave to remain. The basis of that refusal was her failure to provide evidence in the form of an injunction, a conviction or a police caution or another form as required by section 4 of Chapter 8 of the IDIs.

Para 289A(iv) of the Immigration Rules HC 395 provides: “[that the applicant] is able to produce such evidence as may be required by the Secretary of State to establish that the relationship was caused to permanently break down before the end of that period as a result of domestic violence”.
DYSON LJ said that spouses and partners who were the victims of domestic violence should not feel constrained to remain in an abusive relationship for two years solely in order to qualify for indefinite leave to remain. Para 289A(iv) of the Immigration Rules HC 395 should be construed so as to further the policy of enabling persons whose relationship had permanently broken down as a result of domestic violence before the end of the probationary period to be granted indefinite leave to remain. A construction which precluded an applicant, whose relationship had in fact done so, from proving her case by producing cogent relevant evidence would defeat the evident purpose of the rule. If it was intended that applicants could only prove their cases by producing documents of the kind specified in the IDIs, that could have been achieved easily enough in the rule. Caseworkers were often charged with a difficult fact-finding exercise. That was their daily fare. They frequently had to deal with false allegations in diverse contexts. Para 289A(iv) gave them a discretion to decide what evidence to require the applicant to produce in the individual case. If the applicant could not produce it in accordance with that guidance, the caseworker should seek an explanation for the inability to do so. If the applicant provided a reasonable explanation, then the caseworker should give the applicant the opportunity to produce such other relevant evidence as she wished to produce. The IDI was not inflexibly prescriptive. It provided strong guidance as to what evidence caseworkers should require to be produced, but no more than that.

THOMAS and CHADWICK LJJ agreed.

Appearances: Andrew Nicol QC and Gita Patel (Miles Hutchinson & Lithgow, Saltburn by the Sea) for the applicant; Janni Richards (Treasury Solicitors) for the Secretary of State.

Reported by: Ken Mydeen, barrister.