ar						              [2003] UKIAT 00162 S ( India)

IMMIGRATION APPEAL TRIBUNAL

	Date of Hearing : 7 November 2003
      		    		              Date Determination notified:
03/12/2003 

Before:

Mr R Chalkley (Chairman)
Mrs M L Roe 
Mr J A O’Brien Quinn, QC

		APPELLANT

and

Secretary of State for the Home Department
	RESPONDENT

Mr M. Roscoe, of counsel, instructed by G. Singh, Solicitor, appeared on behalf of the appellant and Mr M. Davidson, a Senior Home Office Presenting Officer, appeared on behalf of the respondent.

DETERMINATION AND REASONS

1.	The appellant is a citizen of India who appeals, with leave of the Tribunal, against the determination of an Adjudicator, Ms Janet Baloch, who in a determination promulgated on 13 May 2003, following a hearing at Hatton Cross on 23 April 2003, dismissed the appellant's appeal against the decision of the respondent, taken on 29 March 2001, to refuse to vary leave to remain under par 322(1) of HC 395.  

2.	The appellant was born on 1 April 1970 and is a citizen of India. He arrived in the United Kingdom on 15 December 1998 with entry clearance as the husband of a person settled in the United Kingdom.   He was granted leave to enter until 15 December 1999 as a foreign spouse. On 13 December 1999, an application was submitted to the Home Office for indefinite leave to remain as the victim of domestic violence. The respondent refused to vary leave to remain under paragraph 322(1) of HC 395 and before the Adjudicator the appellant appealed that refusal and also relied on Article 8 of the European Convention on Human Rights.  

3.	Permission was granted under Rule 18(4)(b) of the 2003 Procedure Rules, on the ground that there may be need to clarify the approach to be adopted in cases under Paragraph 289A of the Immigration Rules, where the evidence of domestic violence falls short of the categories described in the Immigration and Nationality Directorate Paper mentioned at paragraph 13 of the Adjudicator's determination.  In granting leave on that issue, the Vice President found that the Adjudicator had dealt satisfactorily with the appellant's Article 8 claim and refused to grant leave on that basis.

4. 	The proceedings before the Adjudicator are somewhat confusing, because she proceeded on the basis that the appellant's application was made under what is now Rule 289A of HC 395.  The Tribunal note that paragraph 289A of HC 395 was inserted from 18 December 2002 (HC 104).  The appeal before the Adjudicator took place on 23 April 2002, but the respondent's decision was, of course, taken on 29 March 2001.  It appears that in granting leave this fact may have been overlooked for understandable reasons.  

5.	Mr Roscoe submitted a legal bundle and a very helpful skeleton argument.  He reminded us that at the time of the appellant's application and at the time of the respondent's decision, there was a Home Office concession, which dealt with the victims of domestic violence.  Neither we, nor it appears the Adjudicator, were supplied with a copy of the concession but we are advised that the concession is adequately referred to in a paper entitled ‘Women’s Asylum News’ which states that foreign national women who remain in the United Kingdom on the basis of marriage, may apply for settlement in their own right during or after the one year probationary period, if they are trapped in an abusive marriage.  That paper says that those women were required to prove they were the victims of domestic violence during this time and had left the marriage for the same reason and that the ‘proof’ required had to be in a form of injunction or similar. Mr Roscoe confirmed that it applied both to women foreign nationals and to men foreign nationals.

6.	He pointed out that the Adjudicator proceeded on the basis that HC 289A applied retrospectively.  This is clear from the determination and in particular, paragraph 24 of it.  He conceded that the Adjudicator was not addressed as to the question of whether or not HC 289A applied retrospectively but, he said, it was necessary for the Tribunal to find that it did apply retrospectively for this appeal to succeed.  He drew our attention to Benyon on Statutory Interpretation Section 98 and submitted that the Immigration Rules were a procedural provision which give effect to the Secretary of State's policy and as such are Procedural Rules, and as such, because a procedural provision is expected to be for the general benefit of litigants and others, it is presumed that it applies to pending as well as future proceedings. He drew our attention to the   decision of Queen’s Bench Division in R v Immigration Appeal Tribunal ex parte Dipak Kumar Nathwani [1979-80] ImmAR 9.  There, an appellant wanted to vary his leave to remain and made an application under paragraph 25 of CMND 571 which was then in operation. The Secretary of State subsequently refused the application, applying the provision of a later immigration rule which did not come into effect until 22 March 1977.   At page 13 of that judgment, Stephen Brown J said:

‘In my judgment, it is necessary to consider with the position was at the time when the Secretary of State made his decision on 27 May 1977.  It is quite apparent that at that time – at the time of his decision – the effective rules were paras 26 and 26A of HC 239 which had come into effect from 22 March 1977.  It would seem abundantly clear to me that the Secretary of State was quite correct in considering this application in the light of the rules which were in force at the time when he considered the application, and that accordingly he was quite correct in considering the matter under paras 26 and 26A of HC 239;  and, furthermore, the Adjudicator was quite correct in proceeding upon that particular basis.’

7.	On 8 June 1978 the Adjudicator dismissed the appeal and in doing so stated that he relied upon paragraph 26 and paragraph 26A of HC 80, as amended by HC 239.   The point, submitted Mr Roscoe, was that the Adjudicator was able to consider it, just as the Secretary of State was able to. It follows, therefore, he submitted, that the Adjudicator was entitled to apply the relevant rule as at the date of the Secretary of State's decision even though it was not in force at the date of the Secretary of State's decision and had come into effect in the intervening time.                                

8.	Mr Roscoe emphasised that as Immigration Rules are Procedural Rules it follows that they must be capable of having retrospective effect unless the contrary is specified. The contrary could have been specified by the Secretary of State but was not.    

9.	The Tribunal drew Mr Roscoe’s attention to what Stephen Brown J had said later in the judgment, namely:

‘It seems to me that, bearing in mind that the rules are not statues or statutory instruments which give rights to any persons there can be no question here of retrospectively applying certainly at the time of the application as distinct from the time of the Secretary of State's consideration of the application and his decision. This is a matter, in my judgment, which is so abundantly clear that no arguable point of law can arise on it.’

10.	Mr Roscoe submitted that the rules had been developed over the last twenty-four years to protect the rights of individuals.  They are  procedural and the Divisional Court were holding against the argument that the rules  could be given retrospective effect. However, the law has been developed since that case was decided and it was clear, he said, that it was desirable that they should be given retrospective effect.  

11.	The Adjudicator found that the appellant was the subject of domestic violence. He provided affidavits by way of evidence to satisfy the concession, which was in force at the time.  The rules were correctly applied retrospectively by the Adjudicator and, that being the case, the Adjudicator should have granted the appeal, because Rule 289A(iv) only requires an appellant 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.’  This appellant did produce evidence. It was in the form of an affidavit. The Immigration Directorate’s instructions contain internal guidance and information.  Paragraph 5.2 (reproduced at page 35 of his bundle) says that in order to establish a claim to domestic violence, evidence should be sought in the form of an injunction, a non-molestation order or other protection order made against the sponsor (other than an ex parte or interim order) or a relevant court conviction against the sponsor or full details of a relevant police caution issued against the sponsor.  In this appeal, unusually, the Adjudicator was dealing with a man who was the victim of domestic violence rather than a woman.  Additionally, he was a Sikh man from a different culture for whom it would have been demeaning and shameful to report the matter to the police, or sought the protection of the courts.  What he did do, however, was to provide evidence of domestic violence and the Adjudicator had unnecessarily constrained herself in her determination by looking at the facts to see if the Immigration Directorate’s instructions had been complied with.  He invited us to allow the appeal and submitted that the Adjudicator had acted unlawfully in finding that the Immigration Directorate’s instructions had not been complied with.  

12.	Responding, Mr Davidson submitted that since the rules did not say that they were to be applied retrospectively, they should not be.  In any event, the Adjudicator derived her jurisdiction from paragraph 21 of Part 3 of Schedule 4 of the Immigration and Asylum Act, 1999, which requires that an appeal must be allowed by an Adjudicator if the Adjudicator considers that the decision or action against which the appeal is brought was not in accordance with the law or any Immigration Rules applicable to the case.  The jurisdiction was, he submitted, to look back at the decision to see if it was in accordance with the law and relevant Immigration Rule. There is no need, he suggested, to consider whether the rules have any retrospective effect. He invited us to dismiss the appeal. 

13.	Responding, Mr Roscoe suggested that since the law had changed at the date of the Adjudicator’s determination, she should have looked at the law current at the date of the determination and decided whether the Secretary of State's decision or action was in accordance with it.  

14.	We reserved our determination.  

15.	In paragraph 12 of her determination, Ms Baloch says that the application has been brought under Rule 289A which states:

‘The requirement 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 twelve months as the spouse of a person present and settled here;  or
(ii)	was admitted to the United Kingdom or given an extension of say for a period of two years as the unmarried partner of a person present and settled here; and
(iii)	the relationship with their spouse or unmarried partner, as appropriate, was subsisting at the beginning of the relevant period of leave or extension of stay referred to in (i) or (ii)   … , 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.’

16.	In paragraph 23 of her determination, the Adjudicator found that the appellant had been the victim of domestic violence, which had adversely affected his health and well being and led to the breakdown of the marriage.  However, she found that the criteria  contained within the Rule 289A and the Immigration and Nationality Directorate  Law and Policy Document, setting out the Home Office requirements, had not been met.

17.	However, the Tribunal notes that the appellant's application was made on 13 December 1999.  We do not know whether the concession to which we were referred was in place at the time, although we believe it may well have been, since at page 8 of the appellant's bundle is a copy of a letter accompanying that application from his solicitors in which they refer to their belief that the application can be  considered outside the rules by the respondent. In any event, the concession most certainly was in effect on 29 March 2001 when the appellant's application was refused by the respondent.  The refusal letter of 29 March 2001 said:-

‘Your client’s application has also been considered under the concession relating to victims of domestic violence.  The terms of this concession are that an applicant who has limited leave to enter or remain in the United Kingdom as the spouse or unmarried partner of a person who is present and settled in the United Kingdom and whose relationship breaks down during the probationary period as the result of domestic violence, may be granted indefinite leave to remain in the United Kingdom exceptionally outside the Immigration Rules provided that the violence occurred during the probation period whilst the marriage or relationship was subsisting and the applicant is able to produce one of the following forms of evidence that domestic violence has taken place:

(i)	an injunction, non-molestation order or other protection order 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.

In view that one of the above listed forms of evidence has not been provided, the Secretary of State is not prepared to exercise his discretion to grant leave under this concession. [sic]

Your client’s case has also been considered on an exceptional basis outside the Immigration Rules, but the Secretary of State can find no compelling or compassionate reason to exercise his discretion in your client’s favour.’

18.	As we have already pointed out, paragraph 289A which deals with the requirements for indefinite leave to remain in the United Kingdom as the victim of domestic violence, was inserted into the Immigration Rules until 18 December 2001, some eight months later.

19.	The appellant's notice of appeal against the Secretary of State's refusal was dated 2 April and the grounds given state merely:

‘The decision of the Secretary of State dated 29 March 2001 is unreasonable.’

20.	For some reason not known to the Tribunal, the respondent's explanatory statement was not prepared until 20 January 2003.  We believe that it was at about this time that the Home Office sent the file to the Immigration Appellate Authority in order that the appeal could be listed for hearing. By that time, of course, Paragraph 289A had been inserted in the Immigration Rules pursuant to HC 104.  

21.	Paragraph 21 of Part 3 of Section 4 of the Immigration and Asylum Act 1999 states:

’21(i) On an appeal to him under Part IV, an Adjudicator must allow the appeal if he considers – 

	      (a)that the decision or action against which the appeal is brought was not in accordance with the law or with any Immigration Rules applicable to the case, or (b) if the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently, 

	but otherwise must dismiss the appeal. 

 (ii)  subparagraph (i) is subject to paragraph 24 and to any restrictions on the grounds of appeal.

 (iii)  for the purposes of subparagraph (i), the Adjudicator may review any determination of a question of fact on which the decision or action was based.

 (iv)  for the purposes of subparagraph (i)(b), no decision or action which is in accordance with the Immigration Rules is to be treated as having involved the exercise of a discretion by the Secretary of State by reason only of the fact that he is requested by or on behalf of the appellant to depart, or to authorise an officer to depart, from the Rules and has refused to do so.

 (v)   if an appeal is allowed, the Adjudicator :- (a)must give directions for giving effect to a determination as he thinks are required; and (b) may also make recommendations with respect to  any other action which he considers should be taken in the case under any of the immigration acts. 

 (vi)    the duty to  comply with directions given under this paragraph is subject to paragraph 22.’

22.	The emphasis in paragraph 21(i)(a) above is ours.  

23.	We do not believe it is necessary for us to consider whether or not paragraph 289A of HC 395 acts retrospectively.  We believe that the Adjudicator erred in proceeding as if the appeal was one against a refusal under paragraph 289A, HC 395. What this Adjudicator had before her was an appeal against the concession in place at the date the Secretary of State made his decision, which was some eight months prior to the insertion in HC 395 of paragraph 289A. Had the Adjudicator correctly considered the appeal, we do not believe that she could have reached a different conclusion. She found that the appellant had not provided evidence that complied with the IND Law and Policy Document criteria. She found that the evidence before the Home Office ‘did not go any way towards satisfying the criteria’. We believe that, had she considered the appeal in relation to the existing concession, she would have been bound to reach the same conclusion in relation to the evidence which the Home Office required should be in the form of an injunction, a non-molestation order or other protection order against the sponsor (other than an ex parte or interim order) or a relevant court conviction against the sponsor or full details of a relevant police caution issued against the sponsor.

24.	In any event, we find no merit in the argument that the Immigration Rule applies retrospectively. Bearing in mind the words of Stephen Brown J to which we have referred above, and further to the words of Eveleigh LJ at page 14 where he said:-

‘… I think it is important to bear in mind the words of Lord Denning MR in R v Secretary of State ex parte Hosenbal [[1971] 1 WLR 766], where he said:

“They are not rules of law. They are rules of practice laid down for the guidance of immigration officers and tribunals who are entrusted with the administration of the Act.  They can be, and often are, prayed in aid by applicants before the courts in immigration cases”

Where one bears that in mind, there is no right in the applicant to dictate to the Secretary of State which set of rules shall be applied at the time of the decision of a case.   The rules are essentially rules which have to be regarded at the time of a decision. The argument of Mr Nathan that in effect this is giving retrospective effect to the rules, and then by analogy to the interpretation of statues, contending that this was not permissible, is, in my view, a mistaken approach.  The rules and their statutory interpretation depend very largely on vested rights.There were no such rights in the present case.’

25.	For all the above reasons, we find that we must dismiss this appeal.

Richard Chalkley
Vice President