R (on the application of AT) v Secretary of State for the Home Department
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This decision is incredibly empowering for victims of domestic violence who are fighting to remain in the UK after divorcing the perpetrator of the abuse, and that person is the sponsor of their UK spouse visa. London immigration solicitors have expressed their relief that the courts have not shut down the options for domestic violence victims, many of whom would fact ostracism and further abuse if they were made to return to their home country.
The facts of the case
She arrived in the UK in 2013 with entry clearance for six months as the fiancée of a British citizen. They married at a civil ceremony. She was granted Leave to Remain for two and a half years until July 2016 as the spouse of a British citizen.
However, the relationship collapsed, and the claimant’s husband told the Home Office he intended to divorce the claimant and hoped she would be deported.
The claimant applied for Indefinite Leave to Remain and claimed that her marriage had broken down because of domestic violence. Her husband disputed that there had been any violence in the relationship.
On 3 December 2015, the Secretary of State wrote to the claimant informing her that her Leave to Remain had been curtailed and would expire on 6th February 2016.
On 1 February 2016, that is, five days before her curtailed Leave to Remain was to expire, the claimant went to visit her GP. She complained of low mood and “issues around her marriage.” The subsequent GP's letter states that “according to the medical records she disclosed husband shouting at her, feeling weepy isolated poor eating, difficulty initiating and maintaining sleep.” She was given anti-depressants and began to attend counselling.
On 4th July 2016, the claimant applied for Indefinite Leave to Remain. The application was refused. A subsequent administrative review of that decision was also unsuccessful. The claimant sought an order via judicial review quashing the words in the Immigration Rules Appendix AR paragraph AR3.2(c)(xiii), which provided for administrative review rather than an appeal to the First-tier Tribunal in a domestic violence case that was also a human rights claim.
The grounds for the claimant’s judicial review were as follows:
a) Removing the right of appeal and replacing it with an administrative review was unlawful as all domestic violence claims were also human rights claims under section 113 of the Nationality, immigration and Asylum Act 2002.
b) The Secretary of State’s approach to the claimant’s claim was unlawful; before making her decision, she should have interviewed the claimant and allowed her to submit evidence. Instead, the claimant claimed her evidence was unfairly rejected when compared with her husband’s conflicting evidence.
The court’s decision
The Honourable Mr Justice Kerr declared the issue was as follows: on the facts, was the domestic violence claim one that removal or refusal of entry would be unlawful under the human rights Act 1998 s.6. And if so, was the Secretary of State then required to not act in a way that is incompatible with the European Convention on human rights?
The Secretary of State argued that although some domestic violence cases were also human rights cases, most were not.
Under section 113 of the 2002 Act, a human rights claim is a claim:
that to remove the person from or require him to leave the United Kingdom would be unlawful under section 6 of the human rights Act 1998.
Section 113 was further defined in (Alighanbari) v SSHD EWHC 1818 (Admin) as one which included three factors:
a) A claim not to be removed from the UK;
b) an assertion of facts that could constitute an existing or prospective private and/or family life, the interference with which Article 8 ECHR protects;
c) an assertion that removal will interfere with private and/or family life (i.e. that the, or a, basis upon which the claimant wishes to remain in the UK is the desire to maintain or build a private and/or family life.
Justice Kerr stated that whilst not all domestic violence cases were human rights cases, some were. It followed that the Secretary of State was entitled to enact delegated legislation removing the right of appeal from victims of domestic violence whose claims were not human rights claims, and replacing that right with one of administrative review. What she could not do without primary legislation was remove the right of appeal for domestic violence claims that were also human rights claims. This would be contradictory to s.82(1)(b) of the Nationality, immigration and Asylum Act 2002.
In the circumstances, although Appendix AR was wrongly drafted, it could not be quashed. The correct approach was to have it stand where cases involved domestic violence but not human rights. In cases where a human rights issue was invoked, section 82 of the Nationality, immigration and Asylum Act 2002 would override the provisions in Appendix AR, which would allow the right of appeal.
The decision was quashed and resubmitted to the Secretary of State for further consideration.
What this case means for domestic violence victims seeking Indefinite Leave to Remain following a divorce?
Victims of domestic violence who wish to apply for Indefinite Leave to Remain under the domestic violence rules should contact an immigration lawyer in London prior to making the application to ensure they receive the best advice. It is imperative that if there is a human rights element to the application, it is included so an appeal can be made if the Home Office rejects the submission.
If you are in the UK on a spouse visa and are suffering from or have experienced domestic violence, OTS Solicitors can assist you with obtaining a divorce and Indefinite Leave to Remain. We have an experienced team of immigration and family law solicitors and are highly recommended in the Legal 500.
OTS Solicitors is one of the most respected immigration and family law firms in London. By making an appointment with one of our immigration and/or family solicitors, you can be assured of receiving some of the best legal advice available in the UK today. We can assist you in all divorce and domestic violence matters.
If you wish to discuss any of the points raised in this blog, please phone our London office on 0203 959 9123.
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Posted on: Monday, 27 November, 2017