Partner and Head of Public Law, Erica Restall, saw success in the High Court recently with an important Judicial Review test case. The Queen (on the application of AT) v the Secretary of State for the Home Department [2017] EWHC 2589 (Admin) challenged a decision made by the Home Office to remove the right of appeal for domestic violence victims making applications for leave to remain.
Following changes made to the Immigration Rules, unsuccessful applications involving applications for leave to remain on the basis of domestic violence were only entitled to an administrative review and the statutory right of appeal to a tribunal previously available was removed. Here, Erica sought to challenge that position, as well as the outcome of our client’s individual case.
The Judge’s findings
Mr Justice Kerr agreed that the amended Immigration Rules were wrongly drafted, and that some domestic violence applications are capable of being considered as human rights claims. This means that in such cases, unsuccessful applicants should be entitled to a full hearing by a tribunal. This is a significant amendment to the current position, which will act as a crucial safeguard for future applicants.
The Judge also made findings with important procedural (and policy) implications. Up to press, applications such as the one in this case have required the completion of two separate charged application forms. Mr Justice Kerr felt that this
…requirement would almost certainly discriminate indirectly against women who bear the brunt of most domestic violence. Why should they pay two fees when others only pay one?
He also subsequently advised in terms of making future claims:
It is obvious that in domestic violence claims the form to be used should include an option to assert that the claim is also a human rights claim. I hope the forms will be revised accordingly, as soon as the Secretary of State’s busy schedule permits. Meanwhile, I hope she will be advised to treat a single application, whether on form SET(DV) or on form FLR(FP), as a valid application, even if it purports to be both a domestic violence claim and a human rights claim.
It is therefore expected that amendments will be made to the forms in due course, simplifying the process and reducing costs. In the meantime, individuals are advised to set out the basis of their human rights claim in the covering letter which accompanies the SET (DV) application. This should be detailed and supported by evidence of the factual basis for that claim.
Our client’s case
Our client succeeded in her individual case, and so the original decision made under the administrative review was quashed. The Home Office will now have to reconsider AT’s application in light of the Judgment.
The Home Office’s original decision had placed a great deal of emphasis upon evidence provided by AT’s husband to the Home Office, against whom the allegations of domestic violence had been made. He had in turn made serious but unsubstantiated counter-allegations against AT. The Home Office relied entirely upon this evidence to reject AT’s claim and dismiss the supporting evidence she had provided from various agencies. This is despite the fact the Home Office had not disclosed this evidence to AT or given her the opportunity to refute her husband’s allegations. AT only saw this evidence for the first time during the hearing.
Mr Justice Kerr found that the approach adopted by the Home Office was procedurally unfair because the evidence had been accepted by the Home Office ‘without evaluation’. He remarked that this had happened seemingly because ‘the man’s evidence counted for more than the woman’s’- a stark finding.
With regard to the supporting evidence which AT had submitted from other sources (ie the police, her GP and counsellor, a friend, her aunt and her employer) to whom she had reported the abuse, Mr Justice Kerr said it was ‘capable of amounting to corroboration, and of rebutting any suggestion of fabrication’ and that the Home Office had wrongly concluded that AT had not submitted any corroborating and contemporaneous evidence in support of her claim. He pointed out that in sex offence prosecutions, this type of evidence was routinely relied upon by the CPS and no-one suggested in those cases that it was not capable of being probative.
This complex case involved extensive preparation and analysis. Erica’s hard work and diligence, including meeting a number of last minute deadlines, were vital to securing this fantastic result.
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Useful Links
The full transcript of the case can be found at:- http://www.bailii.org/ew/cases…
Counsel in the case, Lucy Mair, has written the following blog:- https://gcnchambers.co.uk/dome…
The case has also been featured on the leading blog Free Movement:- https://www.freemovement.org.u…
