Domestic Violence Rule: Evidence

The  three judgments discussed below provide vital guidance on the approach that decision-makers should take in considering applications relating to the domestic violence rule. They emphasise the need for decision-makers to ensure that the purpose of the rule - to protect survivors of domestic violence - is not defeated by too narrow interpretation of what constitutes domestic violence or too restrictive an approach to evidence.

Whatever evidence is submitted; the decision maker must carefully consider it. In AG (India) [2007] EWCA Civ 1534 the Court of Appeal was critical of the Tribunal’s failure to explain why a woman’s account and other supporting evidence of the domestic violence she had experienced and the breakdown of her marriage were rejected, stating at paras 17 and 18 that: 

 “In fact, there is no explanation of why the immigration judge rejected the appellant’s account if he did so.  Her account is at least supported by some other evidence, albeit largely hearsay, and in some respects self-serving. The immigration judge makes sceptical observations about some of it, but he does not explain why none of it helps the appellant at all.  It is right to say -- this is of some importance -- that much of the appellant’s case involved threats or other forms of cruel treatment short of physical violence; but, as I have shown, the meaning of domestic violence within the Rule embraces just such forms of conduct.  If the immigration judge was going to reject the whole case as to the events of domestic violence, whether involving bodily attack or not, much more penetrating reasoning would have been required. He may have been entitled to reject it or, if he accepted it, he might well have accepted the points now made by Mr Johnson as to causation; but in the absence of any satisfactory finding as to the domestic violence that was alleged, those possibilities cannot, in my judgment, assist the respondent.  

It is not clear whether, had the immigration judge accepted the factual case about the violence, he would have held it had no causative force in the breakdown of the marriage.  I would not accept Mr Johnson’s submission that, as the evidence stands, no reasonable immigration judge could conclude (putting the evidence at its highest for the appellant) that the violence was a substantial cause of the breakdown.”

In Ahmed Iram Ishtiaq [2007] EWCA Civ 386_ the applicant was unable to provide the evidence requested (under a previous application form) because she had been prevented from leaving the family home or making contact with services by her violent husband. Her application under the domestic violence rule was therefore rejected and her case progressed to the Court of Appeal. Dyson LJ, who gave the judgement of the court, said that the domestic violence rule should be construed purposefully not narrowly; that to require cogent evidence to prove that a relationship had broken down permanently would defeat the purpose of the rule; and the bar to be met by applicants was not a high one (see paras 32-40): 

“In my judgment, para 289A(iv) should be construed so as to further the policy of enabling persons whose relationships have 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 precludes an applicant, whose relationship has in fact broken down as a result of domestic violence, from proving her case by producing cogent relevant evidence would defeat the evident purpose of the rule.  The purpose of para 289A(iv) is to specify what an applicant has to prove in order to qualify for indefinite leave to remain during the probationary period: viz that the relationship has been caused to break down permanently as a result of domestic violence.  It is not the purpose of para 289A(iv) to deny indefinite leave to remain to victims of domestic violence who can prove their case, but cannot do so in one of the ways that have been prescribed by the Secretary of State in his instructions to caseworkers.

For the reasons that I have given, I would hold that para 289A(iv) gives the caseworker a discretion to decide what evidence to require the applicant to produce in the individual case.  In exercising that discretion, I would expect the caseworker usually to start by applying the guidance given in section 4 of chapter 8 of the IDIs.  But if the applicant is unable to produce evidence in accordance with that guidance, it would seem to me that the caseworker should seek an explanation for his or her inability to do so.  If the applicant provides a reasonable explanation for her inability to produce such evidence, then the caseworker should give the applicant the opportunity to produce such other relevant evidence as she wishes to produce”.
 
The guidance and Ishtiaq were considered more recently in R (Balakoohi). In para 35 of the judgement HHJ Anthony Thornhill QC summarised the relevant requirements and discussed the weight that should be accorded to different forms of evidence, including evidence that is unsupported and non-independent, stating that:

 “The exercise required of a caseworker in this area is often difficult and usually fact-sensitive. It involves the exercise of professional judgment or discretion which should be carried out using a structured decision-making process and a review of, and reliance so far as possible on, the entirety of the evidence presented. In doing this, the caseworker in reaching a decision should use the IDIs as guidance and not as a mandatory series of prescriptive steps which must lead to an unfavourable decision for the applicant if any step provided for in the guidance cannot be fulfilled.”

Source: Solange Valdez, Solicitor at Migrants Resource Centre  and Director of the Project for the Registration of Children as British Citizens PRCBC)