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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> B, R (on the application of) v Secretary Of State For Home Department [2002] EWCA Civ 1797 (21 November 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1797.html Cite as: [2002] EWCA Civ 1797

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Jack Beatson QC
sitting as a Deputy High Court Judge)

		Royal Courts of Justice Strand London, WC2 Thursday, 21 November 2002

1. LADY JUSTICE HALE: This is an adjourned application for permission to appeal against the order of Jack Beatson QC, sitting as a Deputy High Court Judge in the Administrative Court on 26 April 2002. He dismissed the applicant's application for judicial review of the Secretary of State for the Home Department's decision that she could not benefit from the domestic violence concession.

Domestic violence concession

2. The concession was announced by the immigration minister on 16 June 1999. Annex C2 of chapter 8, section 1 of Instructions to Immigration Officers states:

"An applicant who has limited leave to enter or remain in the United Kingdom as the spouse or unmarried partner of a person who is present and settled in the UK and whose relationship breaks down during the probationary period as a result of domestic violence may be granted indefinite leave to remain in the United Kingdom exceptionally outside the Immigration Rules provided that the domestic violence occurred during the probationary period whilst the marriage or relationship was subsisting and the applicant is able to produce one of the following forms of evidence that domestic violence has taken place:-

(i) an injunction, non-molestation order or other protection order against the sponsor (other than an ex parte or interim order) .... "

3. The guidance for caseworkers gives five criteria in paragraph 4.1 for them to apply: (1) the applicant has limited leave to enter or remain in the United Kingdom as the spouse or unmarried partner of a person present or settled here; (2) the applicant is no longer living with the sponsor; (3) the domestic violence occurred during the probationary period whilst the marriage or relationship was subsisting; (4) domestic violence was the reason for the breakdown of the marriage or relationship; and (5) there is proof that domestic violence took place.
4. Paragraph 4.2 explains that in order to establish a claim of domestic violence there must be one of the following pieces of evidence available: (1) an injunction, non-molestation order or other protection order made against the sponsor other than an ex parte or interim order; (2) relevant court convictions against the sponsor; or (3) full details of a relevant police caution issued against the sponsor.
5. The applicant is required to submit the original or a certified copy of the order. Paragraph 4.3 explains what is meant by an interim order, that is, an order pending another hearing but not a time-limited final order. Paragraph 4.3 also states:

"Where the applicant is able to produce a court order or conviction which confirms that he or she was a victim of domestic violence during the probationary period while the relationship was subsisting indefinite leave should be granted without further enquiry.

The fact that the relationship was subsisting when domestic violence occurred would normally be evidenced by the fact that the couple were living at the same address when the incident took place."

6. "Domestic violence" is not defined in the concession, but Miss Giovanetti on behalf of the Secretary of State confirms that, as one would expect, it is not limited to actual battery but covers threats of violence as well. She also accepts that the relevant orders may be obtained after the couple have in fact separated.
7. The policy background is that couples are normally expected to stay together for a minimum period to demonstrate the reality of their relationship, but that victims of domestic violence should not be expected to endure it for the whole of the period as the price of demonstrating their sincerity for immigration purposes.

The factual background

8. I shall refer to the applicant as "the wife" although she is now divorced. She is a Russian national who came here as a visitor in August 1998 and met her future husband ("the husband") then. She returned on a student visa in September 1998 and lodged with him. They married on 6 November 1998 and lived together as husband and wife until December 1999. The wife became pregnant by her husband in June 1999. In July 1999 the husband complained to the police of violence by the wife, which she said was in self-defence. The husband withdrew his complaint, saying that he felt that on occasions he had been "unreasonable with his behaviour". The wife was granted twelve months' leave to remain as a spouse in September 1999.
9. On 14 December 1999 there was a violent altercation between them. The husband's account was that the wife had attacked him with a lamp standard. The wife's account was that she was then six months' pregnant, she had been bleeding and she had been advised not to have sex. The husband had had sex with her against her will earlier in the month. On this occasion she cooked him a nice dinner and he said that after the hot dinner he wanted hot sex. She objected, he punched her in the stomach and she defended herself by pushing him away with the lamp. The husband complained to the police the next day, and the wife was arrested, interviewed and charged. It was a condition of her bail that she did not return to the matrimonial home. Accordingly she left it on 16 December 1999.
10. On 21 December the husband issued a divorce petition on the basis that she had behaved in such a way that he could not reasonably be expected to live with her. He also informed the immigration authorities of the position and on 22 December they curtailed the wife's leave to remain and so the probationary period ended then. The wife appealed against that decision but she withdrew that appeal in May 2000, not surprisingly because by then the divorce petition had taken its normal course and a decree nisi had been pronounced. However, in January 2000 and continuing, the husband wrote several letters to his wife. At the outset these alternated between declaring his love for her and wanting her to return, and accusing her of prostitution and drug abuse and other unpleasant things. Something of the flavour is given by his letter of 28 January 2000:

"Thought you might like to keep this map of where our home was. I got a arial photo of house and pond for you aswell, when are you going to give me a date for our councaling and for you DNA on baby. I need to descuss so much with you in the next few days. Rembur it's your life and dream; to stay and that can only happen with me, not the other man you where seen (?) with in Alders Dee .... "

On 27 March 2000 their child was born. The husband made strenuous attempts to deny paternity and made a great many accusations against the wife, threatening her with perjury, but his paternity was later confirmed by DNA testing. The certificate of entitlement to decree nisi is dated the same day in March and was followed up by decree nisi in April.

11. On 10 May 2000 the wife was tried before the Portsmouth magistrates on two counts of assaulting the husband, one in December 1999 and the other in July 1999. Her defence in each case was of self-defence in a context of violent demands for sex. She was acquitted. That does not, of course, establish definitively that her account of events was correct, but at the very least it establishes that the magistrates were not satisfied by the husband's evidence that the wife was not acting in self-defence on both occasions.
12. On 14 June 2000 the wife obtained an ex parte order with a power of arrest attached to it against the husband in the Portsmouth County Court. On 23 June 2000 that was renewed on notice until December 2000. The power of arrest states, as is usual, that the court was satisfied that the husband had used or threatened violence against the wife. It does not, of course, give details of the factual findings made.
13. The wife's witness statement in those proceedings is dated 14 June 2000. It refers in paragraph 6 to countless letters and notes, some pleading with her to make a go of the marriage, others describing her as a whore and lesbian. She says in paragraph 8 that she would not have applied just for that reason, but the husband had recently taken to following her and delivering things to her home in the knowledge that they would upset her. In paragraph 10 she refers to the many months of misery during their lives together. She was scared she would be deported so she put up with it. He forced her to have sex against her will. When she was five months pregnant and advised by her doctor to abstain from sexual intercourse the husband could not cope with this so he attacked her. This resulted in her arrest. "He was frequently violent towards me leaving me on a number of occasions with quite serious bruising". The witness statement also points out that during the criminal trial the husband had been cross-examined about his conduct towards her during the marriage and after they separated. During that trial his criminal record had emerged and this included nine recorded convictions for sexual offences, five for theft, one for offence against property and one for a public order offence. (It has to be said that those were all a considerable length of time ago.) The witness statement concluded that she was fearful for the safety of herself and of her baby son because of the husband's veiled threats.
14. Representations were made to the Home Office on the wife's behalf by her representatives and also by her Member of Parliament, who had been involved since July 1999. On 1 November 2000 the minister wrote saying that she was not entitled to benefit from the concession because the order "was as a result of his actions after the marriage had already broken down and the couple were not cohabiting". The MP wrote again on 7 November stating that he had witnessed the state of the wife just after she had taken a beating, long before the marriage had broken down. On 10 December 2000 the minister refused to alter his decision on essentially the same ground, that the order related to violence before the breakdown of the marriage. On 4 December 2000 the wife was served with a liability for removal notice and on 20 December 2000 these judicial review proceedings were started.
15. It is fair to say that until that time the Home Office had only had the Family Law Act order and not the evidence on which that order had been based. That evidence was filed, along with other evidence, in the judicial review proceedings. The decision was reviewed in the light of that evidence, but by a letter dated 26 July 2001 the decision was not altered. The Secretary of State still did not accept that the non-molestation order proved violence during the marriage and also said that even if she had suffered domestic violence during the marriage, it was clear that any violence from the husband to the wife was not the reason for the breakdown of the marriage. It was not her choice to leave: she was forced to do so by the husband who had her arrested for assaulting him.

The judge's decision

16. The judge found that the Secretary of State had not properly applied the policy because there was evidence of the kind required by the policy that the wife had been the victim of domestic violence from the husband during the marriage. In paragraph 20 of his judgment he said:

"In view of the fact that there was uncontradicted evidence before the county court of incidents at a time the couple were living at the same address the 'normal' evidential conclusion under paragraph 4.3 of the concession was that the relationship was subsisting when domestic violence occurred. I have concluded that the Secretary of State should have considered why this was not so in this case and that he fell into error in concluding that he was not satisfied that violence had occurred before the breakdown of the marriage on 16 December 1999 without doing so."

17. But the judge went on to find that the error was not a material one in that it did not affect the outcome because the Secretary of State would have been entitled to conclude that such violence was not the cause of the marriage breakdown. The judge had some sympathy for the position in which the wife found herself but in view of the material before the Secretary of State he was entitled to reach that conclusion. The material referred to by the judge on this point is the husband's account of the marriage breakdown, the agreed evidence that three months after the marriage the wife had told her husband that she did not want to be married to him any more or to sleep with him, and the wife's statement that she only left the matrimonial home when forced to do so after her arrest for assault.

The issues in this appeal

18. The only issue now pursued by the wife is whether the judge erred in dismissing the application on the causation point, given his finding that the Secretary of State had erred on the violence point. The Secretary of State, as well as wishing to uphold the judge's decision on the causation point, has issued a respondent's notice arguing that the judge should not have made the finding he did on the violence issue.
19. Logically the violence issue is prior to the causation issue, so I deal with that first. The Secretary of State accepts the position as stated in paragraph 4.3 of the guidance, but argues that that only applies where the order confirms that the applicant was a victim of domestic violence during the probationary period while the relationship was subsisting. The Secretary of State was entitled to conclude that it did not do so because there was no order until six months after the separation. The reason for seeking the order was the threats and harassment that she had suffered after the separation. There was no explicit finding by the county court and it is possible to attach a power of arrest for threats as well as actual violence. Mention is also made of the divorce on the basis of the wife's behaviour but that has very sensibly, in the light of the reality of divorce proceedings these days, not been pressed today. A further point is made that there were allegations and counter allegations between the parties over a prolonged period.
20. There are of course answers to each of those points. It is accepted that relevant orders for the purpose of the concession may be applied for and obtained after the parties have separated. It is a matter of fact and degree. In this particular case it was some six months after the separation, but in the light of the history of the criminal proceedings that is scarcely surprising. As regards the suggestion that the reasons for seeking the order were the later threats and harassment, that is of course correct as a trigger but that does not indicate one way or another whether the order should be taken as proof of violence during the marriage. As regards the argument that there was no explicit finding by the county court and powers of arrest can be attached for threats as well as actual violence, the Secretary of State accepts that threats can come within the definition of domestic violence in any event. It is also the case that there will not be explicit findings by a county court, other than what is recorded in the power of arrest, unless there has been a contested hearing in which a judgment is given and findings of fact made.
21. In my judgment, the judge was entirely correct to say that the Secretary of State should have dealt with the point properly rather than simply relying on the date of the order. There will be orders after the date of the separation. It is certainly quite unreasonable to expect somebody invariably to stay and try to get an order before leaving. It has to be accepted that the order itself will not contain findings of fact, so in those cases there will have to be some examination of the evidence upon which the order was based. It is unfortunate that in this case the Secretary of State did not have the benefit of that evidence at an earlier stage. Uncontradicted evidence cannot be necessarily in a worse position than evidence confirmed after a full trial. I accept that the Secretary of State can ask himself whether he accepts that that evidence was taken into account by the court making the order. But in the circumstances of this particular case it is in my view impossible to conclude that the district judge making these orders did not take account of the whole of the history related in that witness statement, including the history of violence during the marriage, and violence of a serious nature in the context of the desire to have sexual intercourse against wife's will. I would therefore dismiss a cross-appeal on the domestic violence issue.
22. As far as the causation issue is concerned, it is argued on behalf of the wife that the husband was still declaring his love and wanting her to return to him and be a proper wife to him after December 1999, so the reason for the breakdown of the marriage must have been that she was no longer prepared to do this on the basis of his behaviour during the marriage. Perhaps more importantly, it is argued that the Secretary of State had failed to address the causation issue in the light of the violence found in the Family Law Act proceedings. He was still taking the view that that violence had not been established. It is impossible to say that the conclusion would have been the same had he not erred in relation to the violence issue. That is a powerful point indeed.
23. Against that the Secretary of State argues that it is for him to be satisfied that the criteria for the concession are made out and he could legitimately conclude in this case that they were not. That argument is bolstered by the conflicting evidence as to the motives for the marriage. The husband's account was that he was deeply in love with the wife but that she only married him in order to live in the United Kingdom. The wife's account was that she was initially only intending to come here as a student but the husband had been extremely kind to her at first and she became sorry for him. She agreed that she told him after three months that she did not want to be married to him any more but it is of course the case that she stayed with him for many, many months after that and became pregnant by him. So clearly there was a real, if -- "stormy" is the word that family lawyers normally use -- relationship continuing right up until the separation into December 1999 and there is evidence that the husband wished it to continue thereafter.
24. It is argued that it is plain that the wife did not leave because of violence by him. I have some difficulty understanding that argument. She left because he complained of an assault upon him during a violent altercation and the condition of her bail was that she should stay away from the house. If that allegation was not a correct allegation, she was effectively locked out of the house by him, and if there is evidence which has been accepted by a court that he was the instigator of that violent altercation, I find it hard to understand how it can be said that that was not the cause of the separation between the parties and ultimately of the breakdown of the marriage. We would certainly not say that if the husband had locked his wife out of the house after a violent altercation. This was the equivalent of those facts.
25. To return to paragraph to 4.3 of the guidance for caseworkers, that clearly contemplates that if it is confirmed that the applicant was a victim of such violence during the relationship, indefinite leave should be granted without further enquiry. This is not to say that on occasions further enquiry might not be warranted. Of course there might be occasions where further enquiry should take place but the normal assumption would be that in those circumstances it was the violence which led to the breakdown of the marriage.
26. So on this point I would allow the appeal and I would quash the decision made by the Secretary of State. It goes without saying that I would also give the permission to appeal.
27. LORD JUSTICE JUDGE: A spouse seeking to take advantage of the Domestic Violence Concession must prove a series of points to the satisfaction of the case worker. It is unnecessary to set them out in detail, but among other matters which must be proved are that he or she was the victim of domestic violence while the marriage was subsisting and that the marriage broke down in consequence of domestic violence.
28. Although describing itself as the standard of proof, the concession in fact specifies the evidence which will be regarded as critical. In order to establish the claim

".... there must be one of the following pieces of evidence available:

(i) an injunction, non-molestation order or other protection order made against the sponsor (other than an ex parte or interim order); or

(ii) a relevant court conviction against the sponsor; or

(iii) full details of a relevant police caution issued against the sponsor."

None of this is unreasonable or controversial. Safeguards against unmeritorious claims require no justification or, perhaps more accurately, justify themselves. This is a concessionary jurisdiction and the Secretary of State is plainly entitled to specify the minimum material which must be available to support and prove the claim.

29. As the text makes clear by omission, what the concession does not say is that if any of those pieces of evidence is available, then that is determinative or conclusive. The Secretary of State has not in my judgment bound himself to implement the concession in every case where the prescribed evidential material is available. Where it is available, of course, it is clear (and was accepted in the course of the argument on behalf of the Secretary of State) that a refusal to implement the concession requires a full and, I would add, detailed explanation in the decision letter.
30. That, however, is not this case. The Secretary of State's decision was based on what he considered to be the wife's failure to establish that domestic violence took place while the marriage was subsisting and accordingly that the marriage broke down by reason of it. The evidence falling within the specified criteria was the non-molestation order made after an inter partes hearing. The order was sought after the breakdown of the marriage. Quite possibly the wife would never have troubled to seek an order but for what I shall describe as bizarre and somewhat alarming behaviour by her husband towards her and also their child. So the application reflected her response to an immediate need. That fact, in my judgment, has had a disproportionate effect on the Secretary of State's approach to this case. The material before the judge and the wife's concerns about her husband's behaviour referred to and reflected his violent conduct while they were still living together as well as his bizarre behaviour after the parting. On the basis of an analysis of the wife's uncontested evidence about her husband's behaviour both before as well as after the parting, the court order expressly recorded a finding that the husband had used, or threatened to use, violence against his wife (in law that he had battered or assaulted her) and a power of arrest under section 47(6) of the 1996 Family Law Act was attached.
31. On the facts here, in my judgment it was unreal for the non-molestation order made after the parting and brought about by the wife's anxiety about her husband's bizarre behaviour to be treated as if it demonstrated that his conduct after the parting occurred in a vacuum unconnected with his conduct during the marriage. Carried to its logical conclusion on the present facts, that approach might very well mean that a woman who was subjected to domestic violence should remain with her husband at risk of further violence until an application had been made for a non-molestation order. But, as Miss Giovannetti for the Secretary of State accepted without hesitation, that is certainly not the intention nor the basis of the concession and it would be astonishing if it were.
32. I agree with the judge below that the Secretary of State ought on the evidence available to him to have accepted that the applicant had been the victim of domestic violence during the subsistence of the marriage and attached much greater importance to the detail of the circumstances in which the order was sought and made than apparently happened. In my judgment, the Secretary of State's ffinding was flawed. In view of his persistent and determined rejection of this fundamental fact, the learned judge's further decision that the domestic violence had not caused the breakdown of the marriage was based, in my judgment, on very insecure foundations.
33. For the reasons given by my Lady, the conclusion that the violent treatment now established against the husband during the course of the marriage did not cause its breakdown, at least in the sense that it was a significant contributory factor to what happened, was also flawed. Therefore I too would quash the decision, allow the appeal and dismiss the cross-appeal.
34. LORD JUSTICE PILL: This case involves the operation of a concession outside the Immigration Rules for victims of domestic violence. I can say at once that I agree with Lady Justice Hale that if and when the question of causation arises it could only be resolved in the appellant's favour. Accordingly I would allow the appeal on that ground.
35. I have found more difficult than Lady Justice Hale or Lord Justice Judge the question whether the Secretary of State was entitled to reach the decision he did as to the non-occurrence of violence while the parties were living together, or while the relationship was subsisting, in the words of the guidance. I need refer only to a part of one paragraph of it, 4.3:

"Where the applicant is able to produce a court order or conviction which confirms that he or she was a victim of domestic violence during the probationary period while the relationship was subsisting indefinite leave to remain should be granted without further enquiry."

36. The Secretary of State's refusal to operate the concession, explained in a long letter dated 26 July 2001, was on the basis that while there was a court order (to which my Lady has referred) that does not establish domestic violence while the relationship was subsisting. The order was obtained six months after the parties had ceased cohabiting. For the Secretary of State, Miss Giovannetti submits that, when considering whether a concession operates if there is an open end, as there was in this case, the Secretary of State is entitled carefully to consider the circumstances to decide whether the concession is established. In my judgment, such careful scrutiny was appropriate in this case, having regard to the background history to which Lady Justice Hale has referred.
37. Miss Giovannetti submits that the Secretary of State was entitled to reach the decision he did, having regard to the factors which were present. First, the injunction was obtained six months after the cohabitation had ceased on 16 December 1999. It was made first without notice. A further order was made on 23 June 2000, notice having been given to the husband, though he did not appear at the court, nor need he have done so if he was prepared to stay away from his wife.
38. It is further submitted that the evidence produced at the county court to support the order related primarily to threats and harassment which postdated the cohabitation. It is further submitted that the county court order made no explicit finding of violence while the parties were living together, nor was any such finding required, having regard to the basis upon which the order was sought and the jurisdiction of the court to grant it. Further it is submitted that the Secretary of State was entitled to have regard to the end of the marriage, which was as a result of an uncontested petition by the husband which included allegations of unreasonable behaviour and violence towards him by his wife.
39. For the appellant, Mr Blake QC submits that the only conclusion to which the Secretary of State could reasonably come upon the wording of the concession (to which reference has been made) was that that violence had occurred while the relationship was subsisting. The order of the county court was a non-molestation order made under the Family Law Act 1996 and included a power of arrest. Reliance is placed on that to establish that the husband did not appear at the court and it can properly and necessarily be inferred that the district judge was finding that violence occurred while the relationship subsisted.
40. I cannot accept that that necessarily follows. The Secretary of State has serious matters to consider. He has difficult findings of fact to make, as have his officials, and I would deprecate a situation in which, by rote, it were to be assumed in circumstances such as these that it necessarily follows from a non-molestation order, made in June 2000, that there had been violence during the relationship in 1999. Matters of fact are too important to be dealt with in that fashion. They require a careful analysis of all the circumstances.
41. Each case of course depends on its particular facts. In the affidavit by which she made her application to the court, the wife, in a statement which referred mainly to threats which had been made against her, did make a general allegation that her husband was frequently violent towards her, leaving her on a number of occasions with quite serious bruising. Moreover, there was evidence, to which Lady Justice Hale has referred and knowledge of which was with the Secretary of State, of violence when the parties ceased cohabiting in December 1999.
42. In my judgment it would be wrong necessarily to conclude from the order made by the district judge (which was not, of course, nor need it have been, supported by findings of fact made public) that in making the order he was finding that violence had occurred during 1999. He was entitled to make the order and to impose a power of arrest if satisfied that the respondent had used or threatened violence against the applicant, and there is no doubt that the applicant, the wife, was alleging serious threats made to her after the parties had ceased to reside together. It is in my judgment too oblique and unreliable an approach to fact-finding to draw the inference that the order in June 2000 necessarily involved a finding that there had been violence six months and more earlier.
43. However, I consider the decision letter of the Secretary of State. It goes into considerable detail and care has obviously been taken in preparing it. At page 3, it is stated:

"The Secretary of State does not know what the Court had in mind when it granted the non-molestation order. However, it is clear that the non-molestation order was sought and obtained, not because of any violence from Mr B towards Mrs B while their marriage subsisted, but because of the harassment she stated that she suffered after 15 December 1999. There is no factual evidence to verify [the] assertion that the non-molestation order would have taken into account that fact that the harassment she faced after she left her husband occurred against a background of Mr B's overall violent behaviour."

What that paragraph does not acknowledge, and in my judgment should have acknowledged, was the duty on the Secretary of State, in what was the a complex situation on which a considerable amount of evidence was available and against a background of events going on for a considerable time, to make further enquiries. There was evidence of violence by Mr B. It appeared in the general statement to the district judge in June 2000 which I have mentioned. It occurred also in the events of December 1999 which were the subject of a criminal charge against Mrs B, which she successfully defended. The situation was such that further enquiries should have been made. On that point I agree with the judge. I do not consider that the paragraph to which I have referred gives the required attention to the further enquiry appropriate in this particular case.

44. In referring as I have to the point on which Miss Giovannetti relies, I must not be taken to be giving an indication of what the findings of fact should be in this case. I say that respect must be given to decision-makers, to the difficulties they face and to the fact that they should not be discouraged from making full enquiries when complex situations such as the present arise.
45. For the reason I have given in relation to the decision letter, however, I too would quash the the decision of the Secretary of State.

ORDER: Permission to appeal granted. Appeal allowed. Order quashed and application remitted to the Home Secretary for reconsideration. The respondent to pay the appellant's costs here and below, to be assessed if not agreed.

(Order does not form part of the approved judgment)