Court of Appeal
Published May 22, 2007
Ishtiaq v Secretary of State for the Home Department
Before Lord Justice Chadwick, Lord Justice Dyson and Lord Justice Thomas
Judgment April 26, 2007

A caseworker in the Home Office had a discretion to decide what evidence an applicant had to produce when she sought indefinite leave to remain in the United Kingdom on the ground that her matrimonial relationship had permanently broken down.

The Court of Appeal so stated allowing the appeal of the applicant, Ahmed Iram Ishtiaq, from the Asylum Immigration Tribunal dated March 9, 2006.

The tribunal had allowed the appeal of the Secretary of State for the Home Department against the immigration judge’s decision, after hearing the applicant, to allow her appeal from the Home Secretary’s refusal of her application, under paragraph 289A(iv) of the Immigration Rules (HC 395), as amended by (HC 582), for indefinite leave to remain on the basis that her matrimonial relationship had permanently broken down as a result of domestic violence.

The basis of that refusal was her failure to provide evidence in the form of an injunction, a conviction or a police caution or another form as set out in section 4 of chapter 8 of the Immigration Directorate Instructions (June 02).

Mr Andrew Nicol QC and Ms Gita Patel for the applicant; M s Jenni Richards for the Home Secretary.

LORD JUSTICE DYSON said that spouses and partners who were the victims of domestic violence should not feel constrained to remain in an abusive relationship for two years solely in order to qualify for indefinite leave to remain.

Para 289A(iv) of the Immigration Rules should be construed to further the policy of enabling persons whose relationship had permanently broken down as a result of domestic violence before the end of the probationary period to be granted indefinite leave to remain.

A construction which precluded an applicant, whose relationship had in fact broken down, from proving her case by producing cogent relevant evidence would defeat the evident purpose of the rule. If it was intended that an applicant could prove her case only by producing documents of the kind specified in chapter 8, that could have been achieved easily enough in the rule.

Paragraph 289A(iv) gave caseworkers a discretion to decide what evidence to require an applicant to produce. If an applicant could not produce the documents in chapter 8, then the caseworker should give her the opportunity to produce such other relevant evidence as she could.

The Immigration Directorate Instructions were not inflexibly prescriptive.

Lord Justice Thomas and Lord Justice Chadwick agreed.

Solicitors: Miles Hutchinson & Lithgow, Saltburn-by-the-Sea; Treasury Solicitor.

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