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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Kausar, R (on the application of) v Secretary of State for the Home Department [2006] EWHC 2281 (Admin) (28 September 2006) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2006/2281.html Cite as: [2006] EWHC 2281 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		28 September 2006

Table of contents:

Introduction	1
Material facts	8
Ms Jamila Kausar	9
Mr Wajid Mahmood	15
The domestic violence refusal issue	21
The Immigration Rules	21
The Immigration Directorate Instructions	26
Mr Mahmood's arguments on the domestic violence refusal	27
Ms Kausar's arguments on the domestic violence refusal	43
The defendant's arguments on the domestic violence refusal	54
Written submissions on the domestic violence refusal	57
The domestic violence refusal: analysis	59
The statutory appeal issue	63
The arguments on the statutory appeal issue	67
The statutory appeal issue: analysis	76
Conclusion	81

MR JUSTICE WALKER :

Introduction

1. These applications for permission to apply judicial review have been beset by procedural hiccups and consequential delays. The result is that this judgment is delivered much later than I would have wished and is far longer than would normally be appropriate on an application for permission.
2. Ms Jamila Kausar and Mr Wajid Mahmood are sister and brother. Each came to the United Kingdom with leave to enter for a limited period of time, the basis for the leave being marriage to a United Kingdom resident ("the sponsor"). The limited leave expired in the absence of any application for an extension. Eventually the defendant took steps with a view to removal. At a late stage in that process each of Ms Kausar and Mr Mahmood made an application for indefinite leave to remain as a victim of domestic violence. In each case the application was refused by the defendant. I shall refer to such an application as a "domestic violence application", and to refusal of such an application as a "domestic violence refusal." Domestic violence applications fall into a category of applications made using Form SET (O). References in the documents in this case to a "SET (O) application" are to be taken as references to a domestic violence application.
3. Separate applications for permission to apply for judicial review were issued on behalf of each of Ms Kausar and Mr Mahmood. These applications have now been refined so that in each case only two issues are sought to be raised. The first issue ("the domestic violence refusal issue") in each case is whether on the facts the domestic violence refusal was unreasonable or improper. The second issue ("the statutory appeal issue") is whether on the facts the domestic violence refusal gave rise to a statutory right of appeal.
4. Ms Kausar's application for permission to apply for judicial review was considered on the papers by Lindsay J. In a ruling dated 6 December 2005 he concluded that all points other than the statutory appeal issue were unarguable. He considered that it might be arguable that the domestic violence refusal fell within a statutory right of appeal. For this reason he adjourned consideration of permission to apply for judicial review to an oral hearing, indicating that the substantive hearing should follow if permission were granted.
5. On 9 January 2006 proposed amended grounds were served. These grounds were elaborated in a "supporting statement" included in a further bundle served on 13 January 2006. The two substantive remedies sought were that the defendant be ordered to review his decision and that the claimant be granted a right of appeal.
6. Mr Mahmood's application for permission was prepared on 13 December 2005 and filed the following day. He had been due to be removed at 10.30 p.m. on 13 December 2005, but this was prevented by an emergency injunction granted by Pitchers J an hour earlier on the footing that a claim under Article 8 of the European Convention on Human Rights ("ECHR") was to be advanced on behalf of Mr Mahmood. The application for permission to apply for judicial review was considered on the papers by Lloyd Jones J. In a ruling dated 21 February 2006 he refused permission, having concluded that the application disclosed no arguable case for judicial review. On 22 February 2006 notice of renewal of the claim for permission was given. This observed that the judge appeared not to have been aware of a letter sent on 8 February 2006 enclosing proposed amended grounds for review and additional documents. The proposed amendments complained of a refusal by the defendant on 13 December 2006 of Mr Mahmood's domestic violence application made on 12 December 2006. Orders were sought that Mr Mahmood be given an opportunity to submit his case properly to the defendant and that he be granted a right of appeal. The letter of 8 February 2006 also requested an extension of time of 4 weeks in order to take witness statements from individuals who could confirm Mr Mahmood's claim of domestic violence. Further material on behalf of Mr Mahmood was lodged on 8 March 2006.
7. On 4 April 2006 the adjourned permission application in the case of Ms Kausar and the renewed permission application in the case of Mr Mahmood were heard together. Mr Khadim Thathall of ISS Solicitors appeared on behalf of the claimants. Mr Robert Palmer of counsel appeared on behalf of the defendant. During the course of the hearing questions arose which required further consideration. A written response to those questions dated 24 April 2006 was filed by the defendant. There appears to have been some difficulty on the claimants' side in relation to the receipt of this document. A response on behalf of the claimants was eventually filed on 20 July 2006. Regrettably, this came at too late a stage in the legal term for me to prepare my judgment prior to the legal vacation. During August I re-read the papers in the case, reviewed the oral argument, and considered the written submissions. In early September, however, I was informed of other cases which appeared potentially relevant. Further written submissions were lodged dealing with these. This is my judgment on the two applications.

Material facts

8. A helpful account of the material facts was set out in the Defendant's skeleton argument. This section of my judgment is in large part based on that account.

Ms Jamila Kausar

9. Ms Kausar arrived in the UK on 14 January 2001 with an entry clearance as a spouse. She was granted leave to enter for 12 months. Upon the expiry of that leave, she failed either to apply for leave to remain, or to leave the UK. On 8 August 2005, she was detained by Immigration Officers as an illegal overstayer. She was served with notice of her liability to removal. Removal directions were set.
10. On 9 August 2005 she claimed asylum. Removal directions were cancelled in light of that claim on 11 August 2005. The basis of her application was that she feared persecution because of her social group, and in particular because her estranged husband wanted her to return to Pakistan so that unknown people could kill her and her family. She also claimed that her removal would breach Articles 2, 3 and 8 of the ECHR.
11. Asylum was refused on 30 August 2005. This was followed by notification of a decision to remove her as an illegal overstayer and of her right of appeal against that decision. She lodged a notice to appeal on 31 August 2005, but withdrew it on 5 September 2005.
12. Syeds Solicitors on her behalf on 5 September 2005 submitted a domestic violence application. Ms Kausar had signed this application on 26 August 2005. It was accompanied by documentary material which I shall describe later in this judgment.
13. Ms Kausar's domestic violence application was refused on 14 September 2005 in a letter which said this:

The only evidence you have supplied in support of your client's application are affidavits from her two uncles and her sister's neighbour which can hardly be considered objective. I would point out that when your client applied for asylum she clearly stated that she has had no contact with her husband or his family since the middle of 2005. She also stated that since that time she had made several attempts to make contact with her husband and his family as in her words, "I wish my home would not have broken up and I tried to reconcile." This hardly seems consistent with your client's latest claim that she has suffered domestic violence at his hands.

In order to establish a claim of domestic violence evidence would be needed in the form of an injunction or other protection order made against the sponsor, a relevant court conviction against the sponsor or details of a police caution issued against the sponsor. None of these have been forthcoming in your client's case and accordingly we are not prepared to grant her leave to remain in the United Kingdom on the grounds that she is a victim of domestic violence."

14. This led to further correspondence in which Syeds Solicitors, among other things, contended that Ms Kausar was entitled to a statutory appeal. In the course of that correspondence Ms Kausar's application for judicial review was lodged on 19 September 2005.

Mr Wajid Mahmood

15. Mr Mahmood arrived in the UK on 14 January 2001 with an entry clearance as a spouse. He was granted leave to enter for 12 months. Upon the expiry of that leave, he failed either to apply for leave to remain, or to leave the UK.
16. On 8 August 2005 he was detained by Immigration Officers as an illegal overstayer. He was served with notice of his liability to removal and was given notice of a decision to remove him as an overstayer pursuant to section 10(1)(a) of the Immigration and Asylum Act 1999. Removal directions were set for 12 August 2005.
17. On 10 August 2005, he claimed asylum, and removal directions were accordingly deferred. The basis of his application was a claim that he feared his wife's family (and other unknown individuals). He said he believed these people would kill him. Asylum was refused on 4 September 2005, and notice of a decision to remove him was served on 5 September 2005. He was released from detention on 6 September 2005 upon his appealing to the Asylum and Immigration Tribunal ("AIT") against the decision to remove him. The grounds of appeal asserted that his removal would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998. His notice of appeal to the AIT requested an oral hearing. This was fixed for 12 October 2005. However on the morning of the hearing the AIT received a letter from Syeds Solicitors on Mr Mahmood's behalf requesting that the appeal be dealt with on the papers and that his attendance be excused. The AIT hearing accordingly proceeded in Mr Mahmood's absence. In a decision promulgated on 20 October 2005 the Immigration Judge dismissed the appeal. The Immigration Judge rejected Mr Mahmood's account, noting in para 12 that "the record of his interview shows that his story is riddled with inconsistencies" (para 12). He concluded at para 14:

Viewing all of the evidence before me I find that the Appellant has concocted this claim only after being arrested and then after a further two days delay. I do not accept that in reality he faces any threat from his wife's parents, from persons involved in a land dispute or from other unnamed persons in Pakistan.

18. Mr Mahmood was detained again on 8 December 2005 (no application for statutory review having been made). Removal directions were set for 22:30 on 13 December 2005. On 10 December 2005, representations were received from ISS in their capacity as Mr Mahmood's new solicitors, requesting that Mr Mahmood be allowed to submit an application for leave to remain on the basis of domestic violence he had suffered.
19. On 12 December 2005:

i) the Defendant rejected those representations, asserting that Mr Mahmood did not qualify under the domestic violence rules as Mr Mahmood had not submitted evidence that he had been the subject of domestic violence by his in-laws. It was necessary to show that any such violence had been the reason for the breakdown. However at the time of the asylum claim Mr Mahmood indicated that the threats made by his in-laws began after the breakdown of his marriage;

ii) Mr Mahmood applied to the AIT for statutory review of the Immigration Judge's decision;

iii) ISS contacted Mr Mahmood's MP, who made representations to the Chief Immigration Officer;

iv) ISS lodged Mr Mahmood's domestic violence application with a "supporting statement" signed by Mr Thathall. The "supporting statement" repeated points which had been made earlier as to Mr Mahmood's fear of return to Pakistan, and claimed that to return him would be in breach of Articles 3 and 8 ECHR.

20. On 13 December 2005:

i) ISS issued the present judicial review proceedings. The grounds put forward in the claim form were that there was an appeal pending before the AIT and a domestic violence application pending before the Defendant which, it was asserted, would if refused attract a right of statutory appeal;

ii) The representations and the domestic violence application were rejected by the Defendant in a letter faxed at 1529 hours. The letter included the following:

Your client's latest application is based on his allegation that he has suffered domestic violence and harassment at the hands of his in-laws. I would point out that this same allegation formed the basis of your client's asylum claim. At his appeal hearing an independent Immigration Judge did not accept the credibility of his account …

In order to establish a claim of domestic violence evidence would be needed in the form of an injunction or other protection order made against the sponsor, a relevant court conviction against the sponsor or details of a police caution issued against the sponsor. None of these have been forthcoming in your client's case and accordingly we are not prepared to grant him leave to remain in the United Kingdom on the grounds that she is a victim of domestic violence. As your client did not have valid leave to remain at the time of making his application he has no further right of appeal against this decision.

You also submit that removal would breach your client's rights under Articles 3 and 8 of the ECHR. However it is noted that detailed consideration was previously given to this aspect of your client's case by an Immigration Judge and it was concluded that his removal would not be in breach of ECHR. There is nothing new or compelling in your representations which would alter that conclusion.

iii) Mr Mahmood's application for reconsideration of the AIT's decision was refused by a Senior Immigration Judge. The ground of refusal was that the application was out of time, but the Senior Immigration Judge added that in any event the application disclosed no arguable error of law on the part of the Immigration Judge.

iv) A response was given to Mr Mahmood's MP, and Mr Mahmood was so informed.

v) ISS made further representations that notwithstanding the refusal of Mr Mahmood's application by the AIT, removal directions should be cancelled in light of the judicial review application;

vi) The representations were rejected by the Defendant in a letter faxed at 1858 hours. The letter said that the "detailed grounds" raised in section 5 of the judicial review claim form were no longer prevalent in that:

a) the AIT had refused Mr Mahmood's out of time application for reconsideration;

b) the application for leave to remain as a victim of domestic violence had been refused; and

c) there was no right of appeal against the refusal, as it did not constitute an immigration decision within the meaning of section 82(1) of the Nationality, Immigration and Asylum Act 2002.

The Defendant's letter refused to defer removal in light of the judicial review application, explaining as follows:

Your client claimed asylum after he was initially detained following his unlawful stay here. He submitted an out of time application for a review of the Immigration Judge's decision after he was detained following exhaustion of appeal rights. … a judicial review application was lodged on the evening of the removal date. Looking at the background in the round we are unable to consider that these, including the lodging of the Judicial Review application, were anything other than abusive attempts to frustrate the lawful removal of your client.

vii) ISS made further representations stating that Mr Mahmood had an in-country right of appeal against the refusal of his domestic violence application and human rights representations;

viii) Those representations were rejected by the defendant in a letter faxed at 1949 hours. This letter said that no new immigration decision had been made.

ix) ISS made further representations citing the case of Mr Mahmood's sister;

x) Those representations were rejected in a letter faxed at 2115 hours. The letter said that Ms Kausar's case was considered to be entirely separate from that of Mr Mahmood even if they were related. It was repeated that no fresh immigration decision had been made such as to attract a right of appeal;

xi) Counsel instructed by ISS applied for an injunction on a without notice application to the duty judge, restraining the Defendant from removing Mr Mahmood. The injunction sought having been granted by Pitchers J, removal directions were deferred.

The domestic violence refusal issue

The Immigration Rules

21. The Immigration Rules ("the Rules" or "IR") are set out in the Statement of Changes in Immigration Rules (HC 395) laid before Parliament on 23^rd May 1994 as amended from time to time. Relevant provisions are set out below.
22. Paragraphs 281 onwards of the Rules deal with spouses or civil partners of persons present and settled in the United Kingdom. The procedure for leave to enter (which may be granted for up to 2 years) is described at paragraphs 281 to 283. The requirements for an extension of stay are dealt with in paragraphs 284 to 286. These include:

a. at paragraph 284 (iv), that the applicant has not remained in breach of the immigration laws;

b. at paragraph 284(vi), that each of the parties intends to live permanently with the other as his or her spouse and the marriage is subsisting.

23. Paragraphs 287 to 289 deal with requirements for indefinite leave to remain for spouses or civil partners of persons present and settled in the United Kingdom. Subject to exceptions immaterial for present purposes, these require that the applicant was admitted to the UK or given an extension of stay for a period of 2 years and has completed a period of 2 years as the spouse or civil partner of a person present or settled in the UK.
24. Paragraphs 289A to C deal with victims of domestic violence. They are as follows:

Refusal of indefinite leave to remain in the United Kingdom as the victim of domestic violence.

289A. The requirements to be met by a person who is the victim of domestic violence and who is seeking indefinite leave to remain in the United Kingdom are that the applicant:

(i) was admitted to the United Kingdom or given an extension of stay for a period of 2 years as the spouse or civil partner of a person present and settled her; or

(ii) was admitted to the United Kingdom or given an extension of stay for a period of 2 years as the unmarried or same-sex partner of a person present and settled here; and

(iii) the relationship with their spouse or civil partner or unmarried partner or same-sex partner, as appropriate, was subsisting at the beginning of the relevant period of leave or extension of stay referred to in (i) or (ii) above; and

(iv) 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."

Indefinite leave to remain as the victim of domestic violence

289B. Indefinite leave to remain as the victim of domestic violence may be granted provided the Secretary of State is satisfied that each of the requirements of paragraph 289A is met.

Refusal of indefinite leave to remain as the victim of domestic violence

289C. Indefinite leave to remain as the victim of domestic violence is to be refused if the Secretary of State is not satisfied that each of the requirements of paragraph 289A is met"

25. Part 12 of the Rules concerns fresh claims, and comprises paragraph 353 as follows:

Part 12

Procedure

Fresh claims

353 When a human rights or an asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different to the material that has been previously considered. The submissions will only be significantly different if the content;

(i) had not already been considered;

(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.

This paragraph does not apply to claims made overseas.

The Immigration Directorate Instructions

26. Chapter 8 of the Immigration Directorate Instructions ("IDI") covers domestic violence applications in paragraph 5. This includes the following:

5. VICTIMS OF DOMESTIC VIOLENCE

Paragraph 289A of the Rules sets out the requirements for indefinite leave to remain in the United Kingdom as the victim of domestic violence …

…

The provision in the Rules is intended to benefit only those who have been subjected to domestic violence during the probationary period and who make their application whilst they still have limited leave to enter or remain in the United Kingdom.

…

5.1. Key points

The main points on which a case worker needs to be satisfied in cases of domestic violence are:

– the applicant has limited leave to enter or remain in the UK as the spouse or unmarried partner of a person present and settled here; and

– the applicant is no longer living with the sponsor; and

– the domestic violence occurred during the probationary period while the marriage or relationship was subsisting; and

– domestic violence was the reason for the breakdown of the marriage or relationship; and

– there is proof that domestic violence took place.

5.2. Standard of proof

In order to establish a claim of domestic violence evidence should be sought in the form of

(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.

…

5.7 Other acceptable proof of domestic violence

It is often difficult for victims of domestic violence to produce the documentary evidence of violence as set out at 5.2 above, and there is often an unwillingness or insufficient evidence to take the matter to court. Although caseworkers should still try to obtain police or court evidence confirmation of domestic violence, where this is not possible, acceptable evidence may take the form of more than one of the following:

– a medical report from a hospital doctor confirming that the applicant has injuries consistent with being a victim of domestic violence;

– a letter from a family practitioner who has examined the applicant and is satisfied that the applicant has injuries consistent with being a victim of domestic violence;

– an undertaking given to a court that the perpetrator of the violence will not approach the applicant who is the victim of the violence;

– a police report confirming attendance at the home of the applicant as a result of a domestic violence incident;

– a letter from a social services department confirming it involvement in connection with domestic violence;

– a letter of support or report from a women's refuge.

5.8. Out of time applications

Applications made "out of time" after the expiry of the applicant's limited leave, where all the other requirements are met, should nevertheless be considered sympathetically. Acceptable reasons for the delay in making an application could be that the sponsor's passport had been withheld by the sponsor or that the stress of the situation had led the applicant to overlook the need to regularise the immigration status.

Applications from long-term overstayers who claim to have been victims of domestic violence, but are unable to provide the evidence required, should be refused.

5.9. Domestic violence from a family member other than a spouse

Where an applicant submits evidence to show that he or she has been subjected to domestic violence from persons other than the sponsor, they may still qualify for settlement under the concession. Evidence must clearly show that the violence has been the reason for the breakdown of the marriage - for example: where the persons abusing the applicant are members of the sponsor's family and against whom the sponsor offers no protection.

Mr Mahmood's arguments on the domestic violence refusal

27. Putting on one side the question of statutory appeal, there have been successive written formulations of Mr Mahmood's complaints about the refusal of his domestic violence application.
28. Section 6 of the claim form prepared on 13 December 2006, and lodged the following day, set out Mr Mahmood's statement of facts relied on. This referred to a "Fresh Application" submitted "on domestic and other grounds." It said that no decision had been made by the defendant. Section 5, the detailed statement of grounds, referred to this application as "pending for a decision." When the claim form was lodged on 14 December 2005, however, it was accompanied by copies of the Defendant's faxed letters of 13 December 2005, from which it was plain that these assertions had been overtaken by events.
29. ISS subsequently prepared a letter dated 8 February 2006. This was addressed to the Administrative Court Office and stated that it was to be copied to the Treasury Solicitor; however neither of them appear to have received it. The letter stated:

… as discussed by phone we wish to apply to amend the grounds of the above application and enclose amended grounds.

We also enclose additional documents as evidence in support and request an extension of time of four weeks so as we can take witness statements from at least four individuals who can confirm our client's claim of domestic violence.

30. The proposed detailed statement of grounds complained of failure to suspend removal directions and said that the claimant sought "a review of a decision" by the defendant to refuse Mr Mahmood's domestic violence application "without granting a right of appeal." Suggested reasons why there was a right of appeal were set out, but there was otherwise no explanation of the grounds of the "review" sought. Nevertheless the proposed amendment included in section 6, details of remedy being sought, a sentence as follows:

The claimant be given an opportunity to submit his case properly to the SSHD.

31. The proposed amendments also include in section 8 an account of events as follows:

Section 8 Statement of facts relied on

The Applicant had entered the United Kingdom legally as a spouse of a British citizen on 14/01/2001 for permanent settlement. The Applicant together with his sister, Jamila KAUSAR (CO/7436/2005), had cross married with cousins in the same family. The Applicant is of primary level education and rural background. The Applicant had his passport taken away from him by his spouse and or in-laws on the very first day of his arrival. The Applicant had domestic problems with his spouse and in-laws within the first twelve months of his arrival in terms of undue pressure, harassment, threats and degrading treatment.

The Applicant also suffered mentally and psychologically, not only due to his own marital problems but also due to the fact that his above sister was the subject of domestic violence from her husband and in-laws. The applicant felt weak and ashamed and was unable to discuss his personal problems with anyone. The Applicant's wife eventually left him and thereafter his sister was also thrown out of her matrimonial home. The Applicant and his sister were not allowed to report matters to the authorities nor did they seek outside help due to pressure from the extended family.

The Applicant has other members of his family including another sister, brother-in law as several cousins, uncle's and aunts. The Applicant's extended family elders took it upon them to resolve the matters but to no avail, including the return of their, respective passports and regularisation of their stay in the United Kingdom.

The Applicant and his sister had no knowledge or understanding of their immigration status or the need to regularise their stay. The Applicants father also visited the United Kingdom to resolve matters but to no avail. During the whole period the Applicant was in full time employment since about March 2001 to August 2005 when the Applicant came to the attention of the immigration enforcement unit on being reported by his in-laws and was detained.

On being detained, the Applicant had been wrong and gross negligently had been advised to make an asylum claim by his previous representatives Syeds Solicitors of Birmingham and at a considerable cost. The asylum claim was refused by the AIT on the 20/10/2005. The Applicant had been falsely informed by Syeds that they had filled an application for review to the AIT. The Applicant was further detained on 08/12/2005 and subject to removal directions on 13/12/2005 at 22.30.

On ISS being instructed on 10/12/2005, we made the HO aware of the circumstances. On enquiry to the AIT it was established that no application for review had ever been submitted as claimed by the previous representative. We submitted a copy of the same for confirmation.

ISS submitted an application SET (O) on 12/12/2005 and requested for the suspension of the removal directions. The SSHD refused to suspend removal directions. On 13/12/2005 about midday ISS issued a claim for judicial review placing the HO on notice.

SSHD refused to accept application for judicial review. ISS applied for out of hours injunction at about 18.30 on 13/12/2005 placing the SSHD 'on notice'. Removal was suspended due to injunction.

After the filing of the JR on the same afternoon, the application for review before the AIT was refused and we were informed after hours by fax. The Applicant was wrongly and ill advised by his previous representatives to claim asylum rather than an obvious claim within the immigration rules. The negligence of his previous solicitors should not be allowed to prejudice the Applicants case.

The Applicant should be granted an opportunity to put his case properly before the SSHD and be allowed a right of appeal against the SSHD's decision in refusing his application for ILTR as a victim of domestic violence as per para 279A of the immigration rules.

The Applicant will be at risk of ill treatment and harassment contrary to article 3 if returned to Pakistan together with a breach of article 8 in that the applicant has been in the UK for over 5 years and had established a private and family life in the United Kingdom.

32. The enclosures to the letter dated 8 February 2006 included:

a. A fax from "E3 victim support" in Birmingham dated 2 September 2005. This recorded that Ms Rabina Kausar had come to the office on behalf of her brother and sister who were subjected to threats, intimidation and domestic violence from their in-laws. Unfortunately the police were not notified because the family were threatened to keep quiet and were fearful of any acts of violence that would have taken place if the police were notified. The whole family had been affected emotionally, psychologically and physically.

b. A letter dated 28 December 2005 from Mr Mahmood's local councillor. This stated:

Mr Wajid Mahmood lives at the above address and he visited me, as his local Councillor, on several occasions regarding his family problems he was experiencing. The problems particularly concerned his wife. Mr Mahmood was very distressed and disturbed about the nature of his problems.

I advised Mr Mahmood that it was best to contact the police as they might be able to help. I was sorry that I could not help further but, unfortunately, I did not feel as if I was able to get involved in domestic matters.

33. On 22 February 2006, having received a faxed copy of the order of Lloyd-Jones J, Mr Thathall faxed to the court a copy of the correspondence dated 8 February which he said had previously been posted. This was accompanied by a notice of renewal referring to the letter of 8 February 2006 and explaining that it appeared not to have been received by the court. A covering letter sought a further 7 days to submit additional evidence.
34. On 8 March 2006 ISS sent the Treasury Solicitor "supporting documents" in the renewed permission application. These included:

a. A witness statement of Mr Thathall in support of the claimant. This repeated points made in the proposed replacement for section 6 of the claim form enclosed with the letter of 8 February 2006, and also made various new points.

b. A witness statement of the claimant dated 28 February 2006. This included the following:

5. My marriage with Shaila Parveen was not a happy one. Within the first six months of my arrival she started to cause problems, would take all my earnings way from me, threw objects at me and caused physical injury to me by kicking at me on several occasions.

6. She also threatened me with violence from her brothers if I retaliated or reported the matter to other members of the family.

7. My sister Jamila Kausar was also having similar problems with her husband and had suffered serious ill treatment and injury.

8. I was very ashamed and unable to talk to anyone about marital problems. I kept matters to myself. My wife then left me and my sister Jamilia was thrown out of her home. This also affected me mentally to date.

9. We continued to receive threatening telephone calls from my wife's family. We then reported this to BT and the calls were barred. My father also came to the UK in 2003 to try resolve matters along with other members of the family.

10. My in-laws then reported me and my sister, to the immigration authorities and we were arrested and detained. My family contacted my previous Solicitors Sayed's of Birmingham who I know believe wrongly advised me to make a claim for asylum.

11. They further advised me not to attend the appeal hearing before the AIT in October 2005. The appeal was dismissed. I was then informed that they had lodged an application for reconsideration when in fact it transpired that no such application had been submitted to the AIT.

12. My previous representatives have been grossly negligent in advising me and failed to submit my case properly.

c. A series of statements, each of which was wrongly headed, "affidavit". The first of these was a statement dated 28 February 2006 by Ms Rabina Kausar, the elder sister of Mr Mahmood and Ms Jamila Kausar. It recorded that Mr Mahmood and his wife lived with Ms Rabina Kausar in Birmingham. After six months of living together Mr Mahmood starting having problems with his wife who became increasingly demanding and abusive to him. She would refuse to cook for him and would creating unnecessary scenes by shouting general abuse at him. On several occasions she threw objects at him and would kick him. She would spend much of the time during the day with her mother and when she returned at home in the evening would create a scene with Mr Mahmood. On occasions when he retaliated they would receive threatening telephone calls or visits from her family. Steps had to be taken in order to debar such calls.

d. A statement dated 28 February 2006 of Arshad Mahmood, the elder brother of Mr Wajid Mahmood, said that Mr Wajid Mahmood's wife would often create unnecessary scenes and have rows with him, often refusing to cook or wash for him. Mr Arshad Mahmood believed that Mr Wajid Mahmood's mother in-law was "very much behind the problems and was often making threats to Wajid and through her sons." The ill treatment of Ms Jamila Kausar by her husband had a bad effect on Mr Wajid Mahmood's relationship with his wife. Mr Arshad Mahmood and other family members tried to resolve the matter, but for some reason Mr Wajid Mahmood's mother in-law did not want these marriages to succeed and used her children as an excuse to break up the marriages for other family disputes.

e. A statement dated 28 February 2006 of Abdul Karim, the brother of the mother's of Mr Wajid Mahmood and his wife, and thus uncle to both of them. This said he was aware that Mr Wajid Mahmood was ill treated by his wife "who was always fighting and mistreating him which is not tolerated by a husband in our Asian culture." Mr Karim added that he was aware that Mr Wajid Mahmood's mother in-law took Mr Wajid Mahmood's passport and refused to return it. He confirmed that Ms Jamila Kausar suffered domestic violence from her husband and that this had a bad affect on Mr Wajid Mahmood. Attempts to resolve the disputes were not successful. He believed that the cause of the problems was "the attitude of the respective British born children with other family matters relating to division of family property in Ajad Kashmir.

f. A statement of Mr Tarik Mahmood, proprietor of a travel agency in Birmingham, dated 28 February 2006. He said that both Mr Wajid Mahmood and his sister were the subject of ill treatment and undue harassment at the hands of their respective spouses and from their in-laws. Matters were not reported to the police "due to maintaining the family respect as is so common within our culture."

g. A statement of Mr Mohammed Asif, a work colleague of Mr Wajid Mahmood, dated 27 February 2006. Mr Asif said he was aware of family problems that Mr Wajid Mahmood had with his wife and in-laws, including threats from his in-laws. Mr Asif was aware of these facts as on occasions "I asked him as to his problems when he appeared to be very depressed and down-hearted." Mr Asif added that he believed that "due to Wajid's quiet personality his wife and in-laws took full advantage of him by ill treating him." He concluded by saying that he was aware that "Wajid's sister who was cross married to his brother in-law offered suffered ill treatment and this also had an adverse effect on him as he felt helpless and ashamed."

h. A letter dated 28 February 2006 from Mr Amjad Hussain, Deputy Shift Manager at the claimant's employers. The letter said that Mr Hussain had no doubts that the claimant "suffered ill treatment at the hands of his wife and in-laws but did not fully discuss these matters with anyone or seek outside help."

35. In oral argument on behalf of Mr Mahmood, Mr Thathall accepted that the Immigration Judge had rightly dismissed the asylum claim which had no merit. However, the Immigration Judge's determination and reasons noted at paragraph 3 that at a case management review hearing on 28 September 2005 Mr Mahmood was recorded as saying that his wife's family had harassed him in the United Kingdom. Further, the defendant's letter of 4^th September 2005 rejecting the asylum claim had noted in paragraph 6 that Mr Mahmood had said that he lived with his wife at his sister's house for one year, then she moved back to her parents after he had a dispute with her. Mr Thathall said that there had been no questioning about that dispute. If there had been, relevant information might have emerged. It was submitted by Mr Thathall that Mr Mahmood would not volunteer anything about the distressing treatment he had received from his wife's family. He would be too proud or shy to reveal such things unless asked about them. Mr Thathall added that this was an unusual case, not only for the fact that the spouses' mothers were sisters, but in addition the spouses' fathers were brothers. The marriage of Mr Mahmood was in exchange for the marriage of Ms Kausar, and the breakdown of Ms Kausar's marriage had a knock on effect on Mr Mahmood's marriage.
36. Mr Thathall explained that his firm only became involved after the asylum claim had been rejected. As to that asylum claim, Mr Mahmood was ill educated and from a rural background, and was reliant on older family members and solicitors to advise him. He advanced the claim because he accepted their advice. It was in these circumstances that Mr Thathall's firm had written the letter of 10^th December 2005 referring to Ms Kausar having been the subject of domestic violence which had a significant effect and pressure on Mr Mahmood, and indicating a wish to submit a SET (O) application. The defendant's letter of 12^th December 2005 had refused to defer removal directions in order for Mr Mahmood to submit a fresh application. This had crossed with his firm's letter of 12^th December 2005 enclosing the domestic violence application. That had been rejected in the defendant's letter the following day, which had pointed out that Mr Mahmood's asylum claim had been based on suffering domestic violence and harassment at the hands of his in-laws. The immigration judge had found that the appellant had concocted that claim. The letter went on to point out that in order to establish a claim of domestic violence evidence would be needed in the form of an injunction or other protection order made against the sponsor, a relevant court conviction against the sponsor or details of a relevant police caution issued against the sponsor. None of those had been forthcoming and accordingly the defendant was not prepared to grant Mr Mahmood leave to as a victim of domestic violence. This letter, said Mr Thathall, did not refer to the "fresh claim" approach set out in paragraph 353 of the Rules.
37. Mr Thathall complained that Mr Mahmood's advisers were not given time to investigate and assemble evidence. All communications were by fax, as the Home Office would not speak on the telephone. In the event, it had been necessary to lodge Mr Mahmood's application for judicial review prior to receipt of the letter of 13 December 2005.
38. In the course of oral argument, Mr Thathall drafted a further proposed amendment. As regards the domestic violence refusal issue, it was in these terms:

(1) The defendant acted unreasonably in not allowing the claimant an opportunity to submit additional evidence in support of his set o application for consideration. The defendant thereby acted unreasonably.

39. In support Mr Thathall said that his firm had only had the weekend in order to prepare a proper application to the defendant, and that when submitting the application on 12^th December 2005 were not in a position to provide evidence of the type which the defendant sought in order to apply the immigration rules paragraph 289A. That paragraph, noted Mr Thathall, did not list the types of evidence which the defendant regarded as acceptable. Such a list was, however, set out in chapter 8 of IDI (see above).
40. Mr Thathall said that in order to make sure that the domestic violence application was lodged prior to the scheduled removal on 13^th December 2005, his firm had had to try to assemble the relevant material so as to be able to lodge it on 12^th December 2005. They had only been instructed on Saturday 10^th December 2005, and the period from Saturday 10^th December through to Monday 12^thDecember was too short. This was the type of scenario where there was no formal evidence available. The domestic violence had occurred three or four years before. It was difficult within the Asian culture to raise this issue, and even more difficult to gather evidence where there had been a delay of three years.
41. On this aspect of the case Mr Thathall relied upon the decision of Goldring J in R (Tasssawar Ali) v Secretary of State for the Home Department [2003] EWHC 899 (Admin). The claimant in that case was an Indian national who initially entered the UK as a spouse of a UK citizen and was granted leave to enter for a year. That leave was not extended, but the claimant said that he had been misled into believing that his immigration status had been regularised. After the marriage broke down the claimant made an application to stay in this country. The question at issue was whether the defendant had been entitled to reject that application on the basis of a statement from the claimant's wife denying his assertion that he had been misled into believing that his immigration status had been regularised. Goldring J held that, on the basis of the evidence before the defendant, the defendant had not been entitled without more to reject the claimant's account and accept his wife's account. The absence of any proper justification in the decision letter suggested that the appropriate balancing exercise had not been carried out. Paragraph 30 of Goldring J's judgment summarised the position:

"In short, I have concluded that, on the evidence before him, the Secretary of State was not entitled to reach the decision he did in this unusual case."

42. In the written submissions responding to the court's questions Mr Thathall asked the court to take into consideration a letter from his GP dated 15.5.06. This recorded that Mr Mahmood has had a recent fall, fracturing his lumbar spine, and recovery time may be up to six to eight months due to severe pain and difficulty in walking. The written submissions said the fall was a result of "sleep walking".

Ms Kausar's arguments on the domestic violence refusal

43. When Ms Kausar's claim form was issued on 19 September 2005 the detailed statement of grounds for judicial review in section 5 of the form addressed two complaints only. The first complaint was that there was a statutory right of appeal from the domestic violence refusal. The second complaint involved a contention that the removal directions of 5.9.05 were no longer valid.
44. ISS in their capacity as her new solicitors on 13.1.06 lodged a bundle with the court. In the bundle was a proposed amended claim form. The statement of grounds at section 5 of the proposed amended claim form omitted the complaint about the removal directions of 5.9.05. It reformulated the complaint as to a statutory right of appeal from the domestic violence refusal. It then added: "Please see attached supporting statement". This referred to a supporting statement of Mr Thathall dated 6.1.06 which was also was also in the bundle. The supporting statement of 6.1.06 included the following:

4. The Applicant on arrival in the UK lived with her spouse and in-laws at 22 Whitby Road, Balsall Health, Birmingham. Within the first year of arrival, the Claimant suffered domestic violence, abuse and victimisation from her husband and in-laws. The Applicant was forced to leave the matrimonial home in or about 2003. The Applicant was given refuge by her elder sister and brother in-law who are British citizens and permanently settled in the UK. The Applicant has other close family and relatives, who all tried to resolve the matters and bring about reconciliation. Due to the intervention by the extended family, matters of domestic violence and abuse were not reported to the police. The Applicant was unaware of her immigration status and had left matters in the hands of her family elders.

5. The Applicant's spouse and in-laws had retained the Applicant's passport refusing to return the same with threats that they will force her to return to Pakistan. The passport was returned hidden in other belongings in mid 2005 and unknown to the Applicant. The Applicant believes that her spouse or in-laws reported her to the immigration authorities and was arrested on 08/08/2005.

6. The Applicant was ill advised by her previous representatives to claim asylum rather than to make an application under the Immigration Rules para 289A on the grounds of domestic violence. The claim for asylum was refused by the SSHD on 30/08/2005 and a notice of a Decision To Remove was issued on the same date. An appeal against the decision of refusal was made but withdrawn on 05/09/2005.

7. The Claimant had signed, for submission to the Home Office, an application for Indefinite Leave to Remain SET (O) on 26/08/2005, under Immigration Rules para 289A on the grounds of domestic violence. This was not submitted by the previous representatives until 05/09/2005 after the withdrawal of the above appeal but before the issuance of the removal directions. This was refused by the SSHD by a decision dated 14/09/2005 without granting a right of appeal under s.82 Nationality, Immigration and Asylum Act 2002. The Claimant applied for judicial review of this decision on 19/09/2005.

8. The SSHD had set removal directions for the 08/08/2005 which were cancelled due to the asylum claim. Further removal directions were set for 19/09/2005 and 07/11/2005. These were cancelled due to the judicial review application.

9. The Applicant had been detained since 08/08/2005 was released on ball conditions on 29/11/2005. The Applicant filed a petition for divorce on the grounds of 'unreasonable behaviour' in the Luton County Court on 15/12/2005 under Claim No. LU05D00725.

10. The Applicant additionally asserts a breach of her rights under the HRA 1998 and ECHR article 3, 6, and 8.

Grounds of Application for Permission

11. The Applicant challenges the SSHD's decision dated 14^th and 22^nd September 2005 (annex 1) as unlawful in denying the Claimant a right of appeal under section 82 of the Nationality Immigration and Asylum Act 2002 by way of an application for Judicial Review. (NIA Act 2002 s82-92 annex 2).

12. It is submitted that the Applicant is entitled to an in-country right of appeal against the SSHD's decision dated 14/09/2005 (and or alternatively of 30/08/2005 'the withdrawn appeal') in refusing her application for ILTR on the grounds of domestic violence under para 289A as the direction was taken without proper regard or inquiry to IDI policy instructions CH8, s5 and s8 as issued under the Immigration Rules. (annex 3)

13. The right of appeal arises by virtue of s82 (1) of the NIA Act 2002 in that the SSHD's letter of Refusal dated 14/09/2005 is an 'immigration decision' within the meaning of s82(2) (d), (e); and (g), (h) against the removal directions. (annex 2)

14. The decision to remove the Applicant is unlawful under s84(c) in that the decision is unlawful under section 6 of the Human Rights Act 1998 (c.42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the Claimant's Convention rights under article 6 of the ECHR in not allowing a 'fair hearing'.

45. Also included in the material provided on 13.1.06 was a copy of Ms Kausar's divorce petition issued on 15.12.05 in Luton County Court. This alleged unreasonable behaviour on the part of her husband as follows:

Particulars

The parties entered into an arranged marriage on the 9^th August 1999 and started to live together as husband and wife after the Islamic ceremony. The Respondent sponsored the Petitioner to join his spouse in the United Kingdom. The Petitioner arrived in the United Kingdom on 14^th January 2001.

The Petitioner lived with the Respondent and his parents at 22 Whitby Road Balsall Heath Birmingham for approximately 18 months. Thereafter approximately six months later the Petitioner found that the behaviour of the Respondent was unreasonable in that he was often staying out late with friends.

The Petitioner was often beaten by the respondent on numerous occasions. The Petitioner was made to do all the household work and was treated like a slave.

On one such occasion the Petitioner was pushed down the stairs by the respondent and she suffered severe injuries. On another occasion the Respondent threw hot food and a plate at her causing the Petitioner severe burns and injury. The petitioner was also subject to the physical harassment and violence from the respondent's sister and mother whereby the respondent failed to take protect her or take any proper care for her. The Petitioner was not allowed to seek medical help or assistance.

The Petitioner was not allowed to go out of the house with the respondent or on her own. The Respondent also failed to regularize the petitioner's Leave to Remain in the UK after the initial one year period, the respondent kept all the important documents and including her passport from her and denied access to the same due to the respondents actions the Petitioner to become an overstayer and illegal.

The Petitioner found such behaviour to be unreasonable and unacceptable. The Petitioner sought help and was rescued from the respondent and then moved out from the matrimonial home to her sister's house.

The Respondent took away all the petitioner's wedding gifts given to her as dowry including jewellery collection to the value of appropriately £4000 and cash sum of £1000 that was specifically given to her on her arrival to the UK by friends and the relatives which was detrimental to the petitioner in that the respondent denied access of her money to spend as petitioner pleased. As a result of the respondent's behaviour the petitioner became very isolated and depressed, lacked self confidence. The petitioner became increasingly dependent on the respondent.

The Respondent failed to return the petitioner her passport and/or regularizing her stay in the UK she has been subject to immigration control and is in detention at Yarl's Wood Detention Centre in Bradford.

Since the Petitioner moved in with her sister, despite her family's efforts to reconcile with the Respondent has failed to communicate with her there has been no communication between the parties ever since and have not lived together as husband and wife.

46. In oral argument Mr Thathall noted that there was no hearing before an immigration judge because the claim was withdrawn on the day of the hearing. The defendant's letter of 30 August 2005 had recorded in paragraph 7 Ms Kausar's account of domestic violence in these terms:

You claimed that you married a man called Ibar Malik on the 9^th August 1999 (SEF interview part a Q13b and Q14-15). You stated that he was a British Citizen who returned to the UK in September 1999 (Q3). You stated that you came to the UK in January 2001, having obtained a marriage visa, valid one year. You stated that during the marriage you were mistreated by your sister-in-law and your mother-in-law. You stated that they would beat you and would attempt to drive you "mad" (Q58-59). You stated that on one occasion you had made dinner and your husband and his family threw the food against the wall and made you clean it up(Q59). On another occasion, whilst you were ill, you were forced to cook breakfast but your mother-in-law threw a shoe at you and hurt your ribs (Q60). You stated that you were threatened that if you went to the police in the UK that they would send you back to Pakistan or have you killed (61). You stated that you left on several occasions, in total, in the two years you were with you husband you only lived with him for one year (Q17-21), with the final time being in the second month of 2003. You stated that you made several attempts to make contact with your husband and his family, to reach settlement as "I wished my home would not have broken up and I tried to reconcile" (Q68) but these attempts have not worked and you have had no contact whatsoever with your husband or his family since the middle of 2003 (Q24-36). You additionally stated that neither yourself or your brother (who came to the UK at the same time for the same reason [married to the sister of your husband] and who left his wife at the same time you left you husband) can return to Pakistan as people who are unknown to you, have been threatening you father, that they will kill you (and all your family) if you return to Pakistan (Q43). You additionally state that you cannot return to Pakistan as you would have no help there, no-one would marry you and your father is ill (Q117-126).

47. Mr Thathall said that in these circumstances any reasonable Home Office interviewer would have advised that a claim should be made under the domestic violence provisions. What was described by Ms Kausar was said to be more than sufficient evidence of domestic violence. He criticised the interviewer for taking "the wrong angle" towards asylum which any interviewing officer would have known was bound to fail, where as attention should have been focused on domestic violence.
48. Mr Thathall acknowledged that paragraph 9(iv) the letter of 30^th August 2005 said this:

Third, you described yourself as "very scared" of your husband and his family (Q62), so scared in fact that you did not go to the police in the UK. However despite this you stated that between January 2001 and approximately February 2003 you only lived with your husband for one year and would leave and return, you have had no contact with them since 2003 despite your various attempts to phone and send documents to them and you have always lived in the same city as them. It is not believed to be at all credible that had you actually feared this family that you would have returned to the home or lived in the same city or not have gone to the police in the UK or have made persistent attempts to contact your husband (to the extent that he changes his phone number)[Q25-26]

49. Mr Thathall said that these conclusions were totally out of context and not appropriate.
50. After further consideration Mr Thathall put forward a redrafted amended grounds on behalf of Ms Kausar. As regards the domestic violence refusal issue this was as follows:

(1) The defendant failed to consider the claimant's application as a victim of domestic violence properly or within the published policy under the immigration rules –see IDI chapter 8 - "spouses" - para 5.7, 5.8,5.9, 6.8.

51. Mr Thathall said that accompanying the domestic violence application of 5 September 2005 Ms Kausar had submitted supporting evidence in the form of:

a. a declaration by Mr Mohammed Akhtar dated 5^th September 2005 that he was willing and able to offer and accommodate Ms Kausar, his sister-in-law, without recourse to public funds.

b. a statement from Ms Jamila Bi, a neighbour of Ms Kausar's sister, that she had become friends with Ms Kauser, and always found her suffering from stress due to the pressure and torture received from her husband, mother-in-law and their family. Ms Kausar suffered domestic violence but "had no say other than what she discussed with me".

c. A statement of Mohammad Suleman, the maternal uncle of Ms Kauser, that he was well aware that she was "mentally and physically tortured." At a number of times she wanted to report the matter to the police but "the undue influence of the family" stopped her. He wanted to help, but was unable to help because Ms Kauser was living in his sisters house.

d. A statement of Mr Abdul Karim in similar terms.

e. The fax from "E3 victim support" in Birmingham dated 2^nd September 2005 (see paragraph 32 above).

52. Mr Thathall commented that the approach of Asian families is to keep problems of this kind within the family. The supporting evidence submitted by Ms Kausar was the only evidence available, particularly in the light of the 3 year delay. It ought not to be disregarded merely because it was not the type of evidence the defendant looks for.
53. In the written submissions responding to the court's questions Mr Thathall asked the court to take into consideration a letter from Ms Kausar's GP dated 15.1.05. This recorded that Ms Kausar had consulted him on numerous occasions complaining of pain on the left side of chest wall and renal angle as a result of assault. She told him she was assaulted many months ago but could not say as she felt very upset and distraught by it.

The defendant's arguments on the domestic violence refusal

54. Dealing first with Mr Mahmood's domestic violence refusal, Mr Palmer said that Mr Mahmood had been served with notice of detention on 8.8.05. Four months then elapsed, which was ample time for him and his then solicitors to prepare an application. He had instructed fresh solicitors late in the day, and ought to have had his grounds ready.
55. Turning to Ms Kausar, Mr Palmer noted that reliance had been placed on paragraph 5.7 of IDI. Mr Palmer submitted that the closest that Ms Kausar came to meeting the requirements of that paragraph was the letter from E3 Victim Support dated 2.9.05. Even this, however, was exiguous.
56. Mr Palmer noted that paragraph 5.8 of IDI stated: "long term overstayers, unable to provide evidence, should be refused." That, said Mr Palmer, was a perfectly lawful policy. As to paragraph 5.9, in this case there was insufficient evidence of violence from anyone. Paragraph 6.8 was concerned with bereaved spouses, and had no bearing on this case.

Written submissions on the domestic violence refusal

57. In written submissions earlier this month on behalf of the claimants reliance was placed on the decision of the AIT promulgated on 12.7.06 in the case of JL (Domestic violence: evidence and procedure) [2006] UKAIT 00058. In this decision of three Senior Immigration Judges reference is made to s 31A of the Immigration Act 1971, as added by the Immigration and Asylum Act 1999. This provision gave power to prescribe forms and procedures for particular types of application under the Act. It also gave power to provide by regulations that failure to comply with a specified requirement invalidated an application, either generally or in specified circumstances. The decision of the AIT includes paragraphs 44 to 46 as follows:

44. The third consideration relates to the question whether the provisions of paragraph 289A are intra vires the Immigration Act 1971 if interpreted in the way suggested by the Secretary of State. We have set out the general provisions in that Act relating to the making of Immigration Rules earlier in this determination. The precise Parliamentary process by which the Rules are made is not for present purposes in issue. What is notable is that Parliament regarded it as necessary to add s31A. That would appear to be an acknowledgement that the unamended provisions of the 1971 Act gave no power to prescribe forms or procedures as part of the Immigration Rules. It would appear to follow that the prescription of forms or procedures does not come within the phrase in s3(2):

"the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter".

Paragraph 289A does purport to regulate procedure but, as we have already shown, does so by reference to the express power given by s31A and exercised by way of the 2003 Regulations. But the power under s31A is not a general power to make Immigration Rules in an area in which Immigration Rules could not previously be made. It is a power to impose procedural requirements by statutory instrument; it is a power to make such requirements in respect of applications; and it is a power to specify in the Regulations what would be the effect of any failure to comply with those Regulations. There is no question but that the Regulations themselves are intra vires, and in our view there is no question but that the Immigration Rules are intra vires insofar as they apply to applications. The Immigration Rules perfectly properly can, and often do, summarise the law for the benefit of primary decision-makers. Paragraph 289A(iv) is certainly valid insofar as it summarises the impact of the Regulations. But the Regulations apply only to the process for making applications and for determining whether an application is valid or invalid. They have no bearing on whether a valid application should be granted or refused.

45. What is being said in this appeal is that paragraph 289(iv) also imposes procedural requirements on the determination of the merits of an application or appeal. But if there was power to impose procedural requirements by Immigration Rules, s31A would have been unnecessary.

46. For this reason we consider that the provisions of paragraph 289A that refer to the need to provide the evidence "required" by the Secretary of State apply only within the parameters of s31A and the Regulations. Once a valid application has been made the role of the "requirement" ceases and, in accordance with the power to make them under s3(2) of the 1971 Act, the provisions of paragraph 289A should be read without reference to the requirement. On this view, for the purposes of an appeal, paragraph 289A(iv) is to be read down as:

"(iv) is able to establish that the relationship was caused to permanently break down before the end of that period as a result of domestic violence."

58. The defendant's written submissions asserted that the question before the AIT concerned what evidence may be relied upon on appeal of a domestic violence application. The position on appeal did not arise in the present cases. Moreover, contended the defendant, on the facts of the present cases the evidence of domestic violence was so weak that the AIT's analysis was academic in any event.

The domestic violence refusal: analysis

59. Both the court and the defendant have, since the decisions sought to be challenged, been presented in a haphazard fashion with cumulative representations comprising a variety of new submissions and documentary material. Even taken at its highest, however, the material put forward by the claimants cannot sensibly be regarded as meeting the requirements of IDI paragraph 5.7.
60. If I were to conclude that the defendant is unarguably entitled to insist on strict compliance with that paragraph, then I would refuse permission to the claimants on the Domestic Violence Refusal Issue. However I cannot reach that conclusion. I take account of the defendant's observation that the AIT's analysis in paragraphs 44 to 46 of JL: India arose in the context of appeals. Nevertheless it seems to me at least arguable that by parity of reasoning a similar analysis could be relied on by Mr Mahmood and Ms Kausar.
61. It is said by the defendant that even if that were so, there could be no arguable complaint about the defendant's rejection on the merits of the evidence relied upon. I think this puts the matter too high. Until now the defendant's rejection of the evidence has been in the context of the requirements in paragraph 5 of IDI. It seems to me arguable that if those requirements were not binding, then the defendant may have to look at the evidence afresh.
62. Accordingly, on the footing that the claimants will re-amend so as specifically to challenge the defendant's entitlement to insist on strict compliance with paragraph 5 of IDI, I will give permission to apply for judicial review on this point. It is not a point which had been contemplated by Lindsay J when indicating in Ms Kausar's case that the substantive hearing should follow if permission were granted. The point has only been identified in written submissions and should now go to a substantive hearing in the two cases.

The statutory appeal issue

63. Part 5 of the Nationality, Asylum and Immigration Act 2002 is headed "Immigration and Asylum Appeals". It comprises sections 81 to 117 of the Act. The AIT is established by s 81. Section 82 is headed "Right of appeal: general". By s. 82(1) Where an immigration decision is made in respect of a person he may appeal [to the Tribunal]. By s 82(2) "immigration decision" was (at times relevant to the present argument) defined to mean:

(a)     refusal of leave to enter the United Kingdom,

(b)     refusal of entry clearance,

(c)     refusal of a certificate of entitlement under section 10 of this Act,

(d)     refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain,

(e)     variation of a person's leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain,

(f)     revocation under section 76 of this Act of indefinite leave to enter or remain in the United Kingdom,

(g)     a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a), (b), or (c) of the Immigration and Asylum Act 1999 (c 33) (removal of person unlawfully in United Kingdom),

(h)     a decision that an illegal entrant is to be removed from the United Kingdom by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971 (c 77) (control of entry: removal),

(i)     a decision that a person is to be removed from the United Kingdom by way of directions given by virtue of paragraph 10A of that Schedule (family),

(ia)     a decision that a person is to be removed from the United Kingdom by way of directions under paragraph 12(2) of Schedule 2 to the Immigration Act 1971 (c 77) (seamen and aircrews),

(j)     a decision to make a deportation order under section 5(1) of that Act,

(k)     refusal to revoke a deportation order under section 5(2) of that Act.

64. Section 92(1) provides that a person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which section 92 applies. By section 92(2) that section applies to an appeal against an immigration decision of a kind specified in section 82(2)(c), (d), (e), (f) and (j).
65. Section 96 provides that failure in response to a notice to put forward all grounds relied on can lead to the individual being unable to exercise any future right of appeal which may arise. It also provides that a failure by an individual to raise on appeal a matter which is later said to support a new claim or application can lead to the individual being unable to exercise any right of appeal against the refusal of the new claim or application.
66. Section 120 (which is in Part 6 of the Act, dealing with Immigration Procedure) allows the Secretary of State or an immigration officer to give individuals who have made an application to enter or remain in the United Kingdom a notice requiring them to state all their reasons for wishing to enter or remain and all the grounds on which they should be permitted to enter or remain.

The arguments on the statutory appeal issue

67. The contention had been advanced in Mr Mahmood's claim form that if the domestic violence application were refused there would be a right of appeal under section 82 of the Nationality, Immigration and Asylum Act 2002. The defendant's letter faxed at 1949 hours on 13 December 2005 had said that no new immigration decision had been made. It added:

The human rights grounds were rejected in our first letter of today applying the principles of paragraph 353 of the Immigration Rules, even though not categorically stated as such (see last paragraph).

68. These rival contentions featured also in the correspondence concerning Ms Kausar's claim. They were encapsulated in amended grounds submitted during the oral argument as follows:

"(2) The refusal of the application is an " immigration decision" within the meaning of section 82 (2) of the Nationality, Immigration and Asylum Act 2002, thereby attracting a right of appeal."

69. On this issue, the defendant's skeleton argument summarised his contentions as follows:

(1) A right of appeal is not in the gift of the Secretary of State. It is a statutory right which lies against an "immigration decision" within the meaning of section 82 of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). If no immigration decision is made, no right of appeal arises.

(2) Each of the Claimants had a right of appeal under section 82(2)(g) against the decision to remove them from the UK by way of directions under section 10(1)(a) of the Immigration and Asylum Act 1999 (which applies to those who overstay their leave). Each exercised that right of appeal, on the grounds that removal would breach the UK's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998. Each Claimant had the opportunity to raise all relevant grounds upon which they wished to rely on appeal (under the "one-stop" provisions). Mr Mahmood's appeal was dismissed; Ms Kausar's appeal was withdrawn.

(3) No further immigration decision has been made in either of the Claimants' cases since they enjoyed their one-stop appeals. In particular:

(a) a refusal of leave to remain, in circumstances where there is no existing leave to enter or remain, is not an immigration decision. Section 82(2)(d) refers only to a refusal to vary a person's leave to enter or remain in the UK, and then only if the result of the refusal is that the person has no leave to enter or remain. In each of the Claimants' cases, they had no leave to enter or remain capable of being varied when they applied. Further, the fact that they had none was not the result of any refusal to vary their leave to enter of remain.

(b) The right of appeal arose only against the decision to remove each Claimant. The setting, postponement or re-setting of removal directions is not an immigration decision and does not give rise to a fresh right of appeal on each occasion.

(4) Accordingly, there was no further right of appeal.

70. In his written representations the defendant clarified that following a determination under paragraph 353 of the Immigration Rules that further submissions (having been rejected) amount to a fresh claim, the Secretary of State may make a fresh decision to remove that person. That decision will constitute an immigration decision pursuant to section 82(2)(g) of the NIAA 2002 in the case of overstayers, and pursuant to section 82(2)(h) in the case of illegal entrants. There will be a right of appeal against the immigration decision only if the fresh claim is not certified under section 96 of the NIAA 2002, however.
71. The submissions added that outside the circumstances in which a fresh claim is recognised as having been made pursuant to paragraph 353, it will be rare that circumstances arise which would justify the generation of a further right of appeal.  Paragraph 353 is the mechanism Parliament has decided should be employed to decide whether a fresh claim has been made.  However, the Secretary of State retains a discretion exceptionally to make a further immigration decision and thus to generate a further right of appeal where to deny the individual a further right of appeal would lead to unfairness, such as when appeal rights are lost by reason of an error made by the Secretary of State and which error does not arise by reason of any act or omission on the part of the individual or his representative.  That discretion is applied on consideration of each individual's unique circumstances, not according to any published concession or policy. A specific example of the exercise of that discretion arose recently in the case of a claimant who withdrew his appeal to the AIT because the Home Office Presenting Officer wrongly believed that indefinite leave to remain had been granted. Withdrawal of the appeal barred a further appeal, so the Secretary of State exercised the discretion to make a further immigration decision, giving rise to a further right of appeal.
72. The written response of the claimants asserted, relying on paragraph 18.33 of Macdonald's Immigration Law and Practice 6^th ed 2005, that it was at least arguable that refusal to vary leave to enter entailed a right of appeal in their cases. They added that a fresh decision giving a right of appeal was what they had sought.
73. Turning to the submissions earlier this month, the first point under this head concerned observations in JL. Here the submissions of the defendant cite JL as expressly supporting his position that no right of appeal arises in respect of a refusal of leave to enter or remain when the application is made at a time when the applicant's previous leave to enter or remain has expired: see paragraphs 24 and 50. He adds that the issue in the present case is not whether or not the Claimants could only make an application for ILR if they applied before the expiry of their initial leave to enter. The Secretary of State fully acknowledges that it is possible to apply out of time. The issue is whether a right of appeal arises from the refusal of an application made out of time. For the reasons explained in JL, it does not. Section 82(2)(e) provides no assistance: the refusal of an application for leave to remain is not capable of being a "variation of a person's leave to enter or remain".
74. In answer on JL the claimants stress that an application under paragraph 289A is expressly not required to be made within time. They assert that they are entitled to rely on s 82 (2)(c)(d) and (e), and rely on cases where the defendant has notified individuals of a right to appeal following a decision falling within those provisions.
75. The second point raised concerned R (Parmak) v SSHD [2006] EWHC 244 (Admin) and other ECAA Turkish cases. In Parmak Mr Justice Sullivan held that no in-country right of appeal was available to a Turkish who, while detained in the UK, had sought leave to enter to establish a business under the ECAA Turkey Agreement. In other cases currently before the AIT it appears that appellants whose main arguments turn on European Union law have argued that rejection of an ECAA Turkey application was an immigration decision under section 82(2)(d) of the NIAA 2002 and that in refusing the application there was an implication that there had been a refusal to vary leave as a result of which the appellants were left with no leave to remain. The written submissions of the claimant, however, sought to draw an analogy with European Union law and did not adopt the alternative argument.

The statutory appeal issue: analysis

76. In my view the fundamental obstacle facing the claimants is that their principal complaint is failure to accede to their domestic violence applications. Each of those applications was expressly put forward as an application for leave to remain in the United Kingdom. A decision in respect of an application of this kind simply is not one of the decisions listed in s 82(2) of the 2002 Act.
77. In these circumstances the debate about refusal to vary leave to enter or remain under s 82(2)(d) simply does not arise. The claimants have not identified any application made by them to vary their leave to enter, whether prior to or after expiry of that leave. Citation of cases where there has been such an application does not assist in the absence of something to suggest that in the present cases such an application was made. Nor can I find any arguable basis to suggest that an application falling within any other head of s82(2) was made. Questions of European Union law simply do not arise in relation to the claimants, there being no ECAA agreement with the claimants' country of nationality.
78. Turning to IR paragraph 353, that paragraph is solely concerned with human rights and asylum claims. In relation to such claims, the paragraph provides for the defendant to recognise as a fresh claim submissions which have not already been considered and which, when taken with previously considered material, create a realistic prospect of success. There is no sensible basis to suggest that the assertions of the present claimants come within this paragraph.
79. That leaves only the suggestion that a fresh decision outside IR paragraph 353 should be taken so as to confer appeal rights. This is in my view an impossible contention. The 2002 Act has identified those cases where there are to be rights of appeal. It is one thing for the defendant to conclude that a right of appeal otherwise available has been lost through mishap and should be restored. It is quite another to compel the defendant to treat an application which does not confer a right of appeal as if it were an application which did. I can see no arguable basis for arguing that the court should do so in the present case.
80. In those circumstances I refuse permission to apply for judicial review on the statutory appeal issue.

Conclusion

81. For the reasons given above there will be permission to apply for judicial review on the domestic violence refusal issue only, provided that the claimants will re-amend so as specifically to challenge the defendant's entitlement to insist on strict compliance with paragraph 5 of IDI.