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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> JL (Domestic violence: evidence and procedure) India [2006] UKAIT 00058 (12 July 2006) URL: http://www.bailii.org/uk/cases/UKIAT/2006/00058.html Cite as: [2006] UKAIT 00058, [2006] UKAIT 58

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JL (Domestic violence: evidence and procedure) India [2006] UKAIT 00058

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 12 April 2006, 31 May 2006

Date Determination notified:12 July 2006

Before

Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal

Senior Immigration Judge Grubb

Immigration Judge A D Baker

Between

JL	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellant: Ms S Changkee of Albany Solicitors For the Respondent: Mr G Russell, Home Office Presenting Officer

DETERMINATION AND REASONS

1. (a) Applications for ILR arising from domestic violence must be made by using the appropriate form. An application made otherwise than by form is not valid and cannot found a successful appeal. (b) The form may be a valid application even if it is submitted out of time. (c) If it is out of time, it will not give rise to a right of appeal under s82(2)(d) but will clearly be relevant if some other immigration decision (e.g. to remove as an overstayer) is made. (d) The Regulations (SI 2003/1712) contain provisions relating to documents accompanying the form. It is for the Secretary of State to take any point about missing documents within the prescribed time; if he does so the form is invalid and an appeal based on it cannot succeed, but if he does not, the application by form is to be treated as valid. 2. Evidence of domestic violence. If (but only if) there has been a valid application, the Immigration Judge is not confined on an appeal to the evidence "required" by the Secretary of State, nor is an appeal bound to fail if the "required" evidence has not been produced. The question of whether domestic violence has occurred is to be determined on the basis of all the evidence before the Immigration Judge. Paragraph 289A(iv) is to be read down to reflect this.

1. The appellant is a citizen of India who claims to be entitled to remain in the United Kingdom as the victim of domestic violence. The respondent refused her application made on that basis and on 27 October 2004 decided to issue removal directions against her as an overstayer. She appealed to an Immigration Judge who allowed her appeal on what he described as "immigration grounds" and separately under Article 8. The respondent sought and was granted an order for reconsideration. Thus the matter comes before us.

2. The appellant was born and brought up in India. On 6 May 2001, in India, she married her husband. He was a British citizen who had come to India for the marriage and to live with her. The couple remained together in India until late in 2001. By then the appellant was pregnant. On application she was on 8 November 2001 granted entry clearance with a view to settlement as her husband's spouse. The entry clearance was valid from 13 November 2001 for one year. She came to the United Kingdom on 16 November 2001: the effect of her visa was that she thereupon had leave to enter until 13 November 2002. A son was born to the appellant and her husband on 10 March 2002. In April 2002 the appellant's passport expired and she obtained a new one in this country, which was issued on 24 May 2002. In the summer of 2002 her parents sent her a ticket so that she could return to India. She did so, and, taking her son with her, went to live with her parents in India. Her husband remained in the United Kingdom.

3. In December 2002 the appellant's husband travelled to India and persuaded her to return to the United Kingdom with her son. She applied for and was granted entry clearance, again with a view to settlement as a spouse. Her visa was issued on 31 January 2003 and was valid for a year. She arrived in the United Kingdom on 6 February 2003 and thereupon had leave to enter until 31 January 2004.

4. In July 2003 the appellant's aunt visited her at her home and eventually the appellant and her son left the matrimonial home to live with the aunt. The appellant has not since lived with her husband.

5. The appellant says that the reason for her leaving her husband to go to India in the summer of 2002 and leaving her husband again in the summer of 2003 was that she was subject to domestic violence. On 17 November 2003 solicitors acting on her behalf wrote to the respondent's domestic violence unit applying for the appellant to have further leave to remain in the United Kingdom as a victim of domestic violence. They supported the application by a copy of a statement which the appellant had made two months earlier in connection with proceedings brought by her husband against the appellant under the Children Act 1989. It set out the factual basis for her application and it remains the basis for her claim now.

6. The respondent appears to have taken no immediate action on that letter. The position is not entirely clear, because the solicitors then acting for the appellant have closed their immigration department and Ms Changkee who appeared before us told us that it had been not always easy to interpret the way in which their files were put together. What we do have is a letter from the respondent to the appellant's solicitor, dated 18 May 2004, in the following terms:

   "Thank you for the requested information however as I mentioned in our telephone conversation today I still need details of how your client entered the UK. Please could you complete and return the attached questionnaire and also submit a full birth certificate or passport for [the son].

   Please do not hesitate to telephone the above number if you need assistance.

   If you do not produce the information requested within fourteen days, the application will be considered on the basis of the documents and information you have already provided. This could result in the application being refused, as provided for in paragraph 322 of HC 395 of the Immigration Rules."

7. The "questionnaire" was the form SET(O), to which we will make further reference in due course. The form was completed and returned to the respondent apparently on 3 June 2004, apparently with no accompanying documents. Again there was no immediate reaction from the respondent. The application was, however, formally refused on 11 October 2004. It is clear that the respondent had by then a copy of a police report, made in connection with the proceedings in Swansea County Court, indicating that the appellant's husband had been reported for the offence of common assault and, upon caution, had made no reply. There is also a Criminal Justice Act witness statement by the appellant in connection with the same investigation.

8. The letter accompanying the refusal includes the following passage:

   "5. Your client has not submitted any of the relevant documents that are required to consider a claim for indefinite leave to remain on the grounds of domestic violence.

   6. Your client has failed to submit any objective evidence from the authorities which would support her claim. The report from PC Andrew Gunn dated 30 September 2003 states that your client's spouse has denied all allegations of mistreatment towards his wife. [He] has not received a police caution for his alleged behaviour and your client has not sought any form of injunction or protection order against her spouse. Your client's spouse was given a caution for the offence of common assault which has a six month time limit and the offence according to the statement produced by your client was over a year old.

   7. Your client has also failed to produce a medical report confirming that she has injuries that are consistent with being a victim of domestic violence.

   8. Your client has stated that she had been 'treated like a slave' and that her spouse had attempted to hurt her physically during the marriage. However, she does not explain when these events occurred and whether they happened during the probationary period of her marriage to [her husband]. In addition, your client only reported the alleged violence by her spouse to the police in September 2003, almost two years after she had arrived in the United Kingdom and faced any alleged abuse. As such, it is not possible to say whether the abuse which took place happened during the probationary period of the marriage."

9. The appellant appealed against the decision to remove her as an overstayer. The respondent's appeal bundle summarises her immigration history in the following way:

   "The subject entered the United Kingdom on 16 November 2001 and was granted leave to enter as the spouse of a person present and settled in the United Kingdom, following her marriage to [her husband] on 6 May 2001. On 13 November 2002 the subject's leave to enter expired and at this point she became an overstayer. On 27 September 2004 she was served with an IS151A. The subject applied for indefinite leave to remain on 4 June 2004. This application was refused on 11 October 2004."

10. The appellant's appeal was heard by an Immigration Judge, Mr G J Hart TD, on 21 November 2005. The appellant gave oral evidence before him and he had a considerable number of documents. After setting out the immigration history and making some observations about the law of divorce, he noted that since the hearing he had received a copy of a decree absolute made on 17 October 2005, following a decree nisi made on 14 July. He summarised the evidence of domestic violence as follows. On 5 August 2003 the appellant made her Criminal Justice Act statement. That appeared to have been made as a result of her husband's refusal to allow her to collect her valuables and belongings. The statement resulted in a police officer visiting her husband at his home, the report for possible prosecution for common assault and, as we have already recorded, the husband's lack of any comment, following a police and Criminal Evidence Act caution. The next event appears to have been that the husband instigated proceedings under the Children Act 1989 claiming a residence order that the son should live with him. That application was resisted by the appellant in the terms of the statements to which we have already made reference. On 21 December 2004 an order was made in Swansea County Court granting a residence order to the appellant with initially supervised contact or so awarded to her husband. In the Immigration Judge's view these proceedings showed that there had been no reconciliation between the appellant and her husband.

11. So far as domestic violence itself is concerned, the Immigration Judge set out the evidence as follows:

    "The substance of the allegations of domestic violence is that her ill-treatment began even before she left India for this country. However [her husband] did not hit her but grabbed hold of her face and applied pressure to her wrist. When she came here she was prevented from leaving the house by her husband's relatives who also lived there. This prevented her from seeking outside help and approaching doctors and other agencies. She was a young girl fresh from India with little experience of the world, let alone life in the United Kingdom. At paragraph 9 she said that she remembered once that he kicked her on her right side causing her leg to hit a cupboard, at a time when she was heavily pregnant. He shouted and kicked her. Following the birth of her son, she described the uncaring behaviour of her husband and that (para 11) he often slapped her on the face, held her tightly on the face and twisted her arm badly. It was then that she left for her parents in India. However she was persuaded by her husband to return and again refers at para 40 to similar treatment placing his arm on her neck and applying pressure but not leaving any mark. Accordingly she had been back about six months before her aunt visited and she was able to leave. At para 70 she concludes by saying that her husband hit her many times but she was never allowed to go out and have her injuries looked at."

12. In the section of his determination headed "Findings", the Immigration Judge discussed the evidence and noted that although the Crown Prosecution Service were seeking much clearer evidence, it was is likely that the District Judge would have made an injunction restraining the husband from further violence if it had not been that the appellant was able to go and live with her aunt. He also noted that the appellant had made statements which were substantially identical, and that one of them was under the usual conditions imposed by the Criminal Justice Act 1967, that she was aware that if she stated something which she knew was false or did not believe to be true, she would be liable to prosecution. The Immigration Judge continued his determination as follows:

    "44. The problem, unfortunately, is that the respondent's attention has been directed to meeting the documentary requirements of the Immigration Directorate instructions rather than the substance of the allegations, considered in their cultural context. …

    45. The requirement of the Rules is that the domestic violence causing the permanent breakdown occurred before the probation period. The difficulty here, of course, is that there were two separate periods of one year. The fact that the ECO Mumbai granted a second period of one year suggests that he was satisfied that the marriage was then subsisting and the parties intended to live together. …

    46. As there has been no challenge to the extent and nature of the domestic violence alleged, I find that domestic violence has taken place. It is at the lower level of violence but undoubtedly sufficiently distressing to cause the appellant to leave. It was long and persistent. I therefore find that domestic violence was suffered by the appellant during the relevant probation period thus meeting most of the requirements of the Rules.

    47. It does not appear to me to be reasonable that the respondent should set out outside the Rules those documents which he considers might be produced as evidence of the domestic violence but without considering what further evidence of such violence might in fact be available. I accept the appellant's account that apart from the report to the police after her departure, primarily to obtain her personal belongings, the appellant was unable because of her circumstances to report the matter to a doctor, general practitioner, or indeed the police. As she put it, she was treated as a slave by her husband. In practical terms he and his family dominated her in a manner more appropriate to the Indian sub-continent than Leicester. I do note that the Swansea County Court must have thought it appropriate to protect the appellant and her son by making a resident's order in her favour on the basis that such an order was necessary. I therefore find that the appellant has met the requirements of paragraph 289A of the Immigration Rules which was clearly introduced with the purpose of providing assistance to someone in the position of this appellant. There is no indication that the appellant has fabricated her account for the main purpose of perpetuating her presence here following the end of a marriage of convenience."

13. The Immigration Judge went on to indicate that although (as he was allowing the appeal under the Immigration Rules) it was not strictly necessary for him to consider Article 8, he would in fact allow the appeal under Article 8 as well.

14. The grounds for reconsideration are as follows:

    "Rule 289A(iv) of HC 395 requires the production of evidence as may be required by the Secretary of State to establish that domestic violence has taken place. The evidence required is thus as laid down in the Secretary of State Immigration Directorate's Instructions (IDIs) chapter 8, paragraph 5. It is submitted that the requirements of the IDI is to provide a low standard of proof that is appropriate when dealing with the sensitive and difficult circumstances that domestic violence cases can present. It is further submitted that the evidence presented by this appellant fails to meet this low standard of proof and a finding to the contrary amounts to an error in law. Indeed at paragraph 34 of her [sic] determination, the IJ details an extract from the police constable's pocket book:

    '… it appears that the only note is that he had attended upon [the husband] administered a PACE caution and he therefore made no reply … the inference is that [the husband] was reported for common assault but no further steps were taken'.

    The IJ refers to this document again at paragraph 44 and contends that this document satisfies the requirements of the IDIs.

    Paragraph 5(iii) of the IDIs in particular requires 'full details of a relevant police caution issued against the sponsor'. It is submitted that the inference which the IJ refers to is not enough to satisfy this requirement. This is particularly pertinent given that the IJ is unable to point to any evidence that specifically indicates any domestic violence had occurred or that any other authority has taken seriously such allegations."

    The grounds also challenge the Immigration Judge's decision under Article 8.

15. It became apparent during the course of the hearing that, as well as the issue raised by the grounds, we needed to be concerned with whether, and if so when, a valid application was made by the appellant. We heard further submissions on this issue at the adjourned hearing. The questions which we now need to decide are the following:

    (1) Did the appellant make a valid application for indefinite leave to remain by her letter dated 17 November 2003?

    (2) If not, did she make a valid application for indefinite leave to remain in her form SET(O) on 4 June 2004?

    (3) Was the Immigration Judge restricted to evidence specified by the respondent in determining whether the appellant had been a victim of domestic violence?

    Rules and Legislation

16. The relevant Immigration Rules are paragraphs 289A and 289B of HC 395.

    "Requirements for indefinite leave to remain in the United Kingdom as the victim of domestic violence

    289A. The requirements 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 2 years as the spouse or civil partner of a person present and settled here; or

    (ii) was admitted to the United Kingdom or given an extension of stay for a period of 2 years as the unmarried or same-sex partner of a person present and settled here; and

    (iii) the relationship with their spouse or civil partner or unmarried partner or same-sex partner, as appropriate, was subsisting at the beginning of the relevant period of leave or extension of stay referred to in (I) or (ii) above; 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.

    Indefinite leave to remain as the victim of domestic violence

    289B. Indefinite leave to remain as a victim of domestic violence may be granted provided the Secretary of State is satisfied that each of the requirements of paragraph 289A is met."

    So far as the procedure on an application is concerned, the principal statutory requirement is in s31A of the Immigration Act 1971.

    "31A. Procedural requirements as to applications

    (1) If a form is prescribed for a particular kind of application under this Act, any application of that kind must be made in a prescribed form.

    (2) If procedural or other steps are prescribed in relation to a particular kind of application under this Act, those steps must be taken in respect of any application of that kind.

    (3) 'Prescribed' means prescribed in regulations made by the Secretary of State.

    (3A) regulations under this section may provide that a failure to comply with a specified requirement of the regulations –

    (a) invalidates any application

    (b) does not invalidate an application, or

    (c) invalidates an application in specified circumstances (which may be described wholly or partly by reference to action by the applicant, the Secretary of State, an immigration officer or another person.

    (4) The power to make regulations under this section is exercisable by statutory instrument.

    (5) Any such statutory instrument shall be subject to annulment in pursuance of a resolution of either House of Parliament."

17. The Regulations are the Immigration (Leave to Remain) (Prescribed Forms and Procedures) Regulations 2003 (SI 2003/1712, which came into force on 1 August 2003). Regulation 9 provides:

    "(1) The form set out in schedule 7 is hereby prescribed for an application for indefinite leave to remain in the United Kingdom:

    …

    (l) as a victim of domestic violence, for the purposes of the Immigration Rules."

    Under the heading "Prescribed Procedures" in the same Regulations are the following:

    "11. The following procedures are hereby prescribed in relation to an application for which a form is prescribed in any of regulations 3 to 9 above:

    (a) the form shall be signed and dated by the applicant, save that where the applicant is under the age of eighteen, the form may be signed and dated by the parent or legal guardian of the applicant on behalf of the applicant;

    (b) the application shall be accompanied by such documents and photographs as specified in the form; and

    (c) the application shall be:

    (i) sent by prepaid post to the Immigration and Nationality Directorate of the Home Office, or

    (ii) submitted in person at a Public Enquiry Office of the Immigration and Nationality Directorate of the Home Office.

    save that an application for which a form is prescribed in regulation 3A above shall be sent by prepaid post or by courier to Work Permits (UK) at the Immigration and Nationality Directorate of the Home Office and may not be submitted in person at the Public Enquiry Office.

    12. – (1) A failure to comply with any of the requirements of regulation 11(a) or (b) above to any extent will only invalidate an application if:

    (a) the applicant does not provide, when making the application, an explanation for the failure which the Secretary of State considers to be satisfactory,

    (b) the Secretary of State notifies the applicant, or the person who appears to the Secretary of State to represent the applicant, or the failure within 21 days of the date on which the application is made, and

    (c) the applicant does not comply with the requirements within a reasonable time, and in any event within 28 days, of being notified by the Secretary of State of the failure.

    (2) For the purposes of this regulation, the date on which the application is made is:

    (a) in the case of an application sent by post, the date of posting. …"

18. The prescribed form is the SET(O) to which we have already made reference, and which was used by the appellant in this case. Because of the reference in Regulation 9, its terms are part of the Regulations. In part 7I of the form, we find this:

    "7I

    ... If you are applying as a victim of domestic violence, document(s) showing that you are the victim of domestic violence:

    1. An injunction, non-molestation order or other protection order against your partner (see Note 4) or

    2. A relevant court conviction against your partner or

    3. Full details of relevant police caution issued against your partner. The information needed here is the full name of your partner, their date of birth, nationality, their address at the time of the incidents(s) and (if different) now and also the date, time and place where the incident for which the caution was issued, or for which they are being prosecuted, took place.

    Note 4: An ex-parte or interim order is not sufficient for the purpose of this application.

    If you are not able to provide any of the of the documents or information listed at 1 to 3 above, you must provide at least two of the following types of document:

    a) A medical report from a hospital doctor or a letter from the family practitioner confirming that your injuries are consistent with being a victim of domestic violence.

    b) An undertaking given to a court that your partner will not approach you

    c) A police report confirming your attendance at your (then) address as a result of a domestic violence incident

    d) A letter from a social services department confirming its involvement in connection with domestic violence towards you

    e) A letter of support or report from a women's refuge.

    Whether your have provided document(s) at 1 to 3 or a) to e) above, you must also provide a letter signed by you stating you are still living with your partner and, if the marriage or relationship has broken down, whether domestic violence was the reason for this."

19. The following more general provisions are also of relevance. Section 3 of the Immigration Act 1971 is, in part, as follows:

    "3. General provision for regulation and control

    (1) Except as otherwise provided by or under this Act, where a person is not a British citizen -

    (a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, this Act;

    (b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period);

    (c) if he is given leave to enter or remain in the United Kingdom, it may be given subject to all or any of the following conditions, namely –

    (i) if a condition restricting his employment or occupation in the United Kingdom;

    (ii) a condition requiring him to maintain and accommodate himself, and any dependants of his, without recourse to public funds; and

    (iii) a condition requiring him to register with the police.

    (2) The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached indifferent circumstances; and section 1(4) above shall not be taken to require uniform provision to be made by the rules as regards admission of persons for a purpose or in a capacity specified in section 1(4) (and in particular, for this as well as other purposes of this Act, account may be taken of citizenship or nationality). …

    (3) In the case of a limited leave to enter or remain in the United Kingdom, -

    (a) a person's leave may be varied, whether by restricting, enlarging or removing the limit on its duration, or by adding, varying or revoking conditions, but if the limit on its duration is removed, any conditions attached to the leave shall cease to apply; …".

20. Paragraph 32 of HC 395 is as follows:

    "32. After admission to the United Kingdom any application for an extension of the time limit on or variation of conditions attached to a person's stay in the United Kingdom must be made to the Home Office before the applicant's current leave to enter or remain expires.

    With the exception of applications made under paragraph 31A (applications at the port of entry) and paragraph 33 (work permits), 33A (applications made outside the United Kingdom), paragraphs 255 to 257 (EEA nationals) and Part 11 (asylum), all applications for variation of leave to enter or remain must be made using the form prescribed for the purpose of the Secretary of State, which must be completed in the manner required by the form and to be accompanied by the documents and photographs specified in the form. An application for such a variation made in any other way is not valid."

    Did the appellant apply for indefinite leave to remain by letter?

21. It will be apparent from the facts as we have set them out earlier in this determination that the respondent's summary of the appellant's immigration history in the appeal bundle is somewhat wide of the mark. The respondent appears to have been unaware that the appellant had left the country before the expiry of her first period of leave, and had been readmitted with a new grant of leave to enter. (We understand that the respondent makes no practice of keeping a record of aliens who are in this country, whether lawfully or unlawfully.) The appellant's leave did, however, expire on 31 January 2004, which was after the letter was written, but before the application form was sent in. If she made an application during the currency of her existing leave, therefore, it must have been by the letter.

22. The problem with that suggestion is the wording of s31A(1) of the 1971 Act. So far as any application under the Immigration Rules is concerned, an application for leave to remain as a victim of domestic violence must be an application for indefinite leave to remain, because the Rules make no provision for temporary leave in those circumstances. Regulation 9 of the Regulations prescribes the use of a form for the application. Section 31A thus has the effect that the application "must be made" in the prescribed form.

23. We do not think there can be any proper argument about the effect of those provisions. In the present case they mean not merely that the letter (however it was treated by the respondent) was not capable of being the appellant's application: they also mean that the appellant made no application while she had extant leave.

24. That last consideration is potentially serious for at least three reasons. First, it is only if an application is made during the currency of existing leave that the applicant obtains the benefits of s3C of the 1971 Act, extending the leave until the determination of the application or any subsequent appeal. Secondly, it is only if an application is made during the currency of existing leave that a refusal to vary leave will be appealable under s82(2)(d), because if the leave has already run out before the decision is made, the decision does not itself have the effect of causing the applicant to have no leave. Thirdly, paragraph 32 of the Immigration Rules provides that certain applications must be made during the currency of existing leave and it therefore follows that in the case of an application to which that paragraph applies, if the application was made other than during the currency of existing leave its refusal could not be challenged as not being in accordance with the Immigration Rules.

25. For these reasons, as we say, the failure to make an application within the currency of existing leave is potentially serious. For reasons which will appear, however, we do not regard any of those factors as damaging to the appellant's position in this appeal.

    Was the Form SET(O) a valid application?

26. The problems that the appellant might have to face in establishing that the form was a valid application for indefinite leave to remain as the victim of domestic violence are, first, that the form was submitted at a time when her leave had expired and, secondly, that it was not accompanied by the documents by which the form is required to be accompanied.

27. Looking first at the question of time, it is clear that (for the reasons we have just indicated) if paragraph 32 applies to her application, she is in difficulties. In our view, however, paragraph 32 does not apply to an application for indefinite leave to remain. Paragraph 32 applies to "any application for an extension of the time limit on or variation of conditions attached to a person's stay in the United Kingdom". Section 3(1) of the 1971 Act makes it clear that the length of time for which leave is granted is not a condition. Section 3(3) of the 1971 Act makes it clear that when a time limit is removed any conditions attached to the leave cease to have effect. For these reasons it is clear that seeking indefinite leave to remain cannot be regarded as seeking a variation of the conditions of leave.

28. The question then is whether seeking indefinite leave to remain is seeking "an extension of the time limit" of the leave. Again looking at s3(3) of the 1971 Act (to which the Immigration Rules must be regarded as subject) there is a distinction between restricting or enlarging the time limit and removing it. It is only the last that has the effect of also removing any conditions. This does not seem to be language which regards the removing of a time limit as in any sense a sort of extension of the time limit: it is a different type of decision altogether. If a person succeeds in obtaining indefinite leave to remain there is no limit on the leave: that is, after all, what "indefinite" means. For that reason we take the view that an application for indefinite leave to remain cannot be regarded as an "extension of a time limit" within the meaning of paragraph 32. It follows that paragraph 32 does not require an application for indefinite leave to remain to be made during the currency of existing leave.

29. We were directed to no other provision requiring an application for indefinite leave to remain to be made during the currency of existing leave. We note in particular that paragraph 289A of the Immigration Rules – that is to say, the paragraph with which we are substantively chiefly concerned – contains no requirement that the applicant have existing leave. The lack of such a requirement is, so far as we can see, a regular feature of provisions of the Immigration Rules regarding indefinite leave to remain, but is by no means a universal feature of the Rules: see for example paragraph 284, which requires that "the applicant has limited leave to enter or remain in the United Kingdom" as one of the conditions imposed by the rule. It is perhaps worthy of note that the rule giving the general grounds for refusal of a variation of leave to remain in the United Kingdom, paragraph 322, has, as one of the "grounds on which an application to vary leave to enter or remain in the United Kingdom should normally be refused" a "failure to comply with any conditions attached to the grant of leave to enter or remain", but, as we have indicated, time is not a condition. Paragraph 322 contains no provision penalising overstaying.

30. For the foregoing reasons we have concluded that the mere fact that the form was submitted at a time when the appellant had no extant leave does not prevent it being a valid application for indefinite leave to remain as a victim of domestic violence under the Immigration Rules.

31. There is one point that we should perhaps add. Although we have had cause here to interpret phrases relating to the variation of conditions and the extension of time, nothing that we have said should be taken to affect the usual meaning of the phrase "variation of leave". A person who has existing leave and who, during the currency of that leave, seeks indefinite leave to remain, is not (for the reasons we have given) seeking a variation of conditions or the variation of a time limit. Such a person is, however, seeking a variation of leave, and a refusal in such circumstances would be a refusal to vary the leave.

32. The second question about the form is the effect of the failure to send to the Secretary of State all the documents required by the form. The second part of paragraph 32 might at first sight appear to apply, because it requires that

    "all applications for variation of leave to enter or remain must be made using the form prescribed for the purpose by the Secretary of State, which must be completed in the manner required by the form and be accompanied by the documents and photographs specified in the form. An application for such a variation made in any other way is not valid."

    That is, however, not the end of the matter, for at least two reasons. The first is that, given that the appellant had, at the time that she submitted the form, no existing leave, she was not applying for any "variation" of leave. She was applying for a new grant of leave. (There is a contrast with the first part of paragraph 32 in cases to which that paragraph does apply: but for the rule in that paragraph, a person might seek, for example, a retrospective extension of a time limit.) The second reason is that the rule must be read subject to the statute and the statutory instrument. Section 31A(2) and (3A) allow the Regulations to prescribe procedural steps and to prescribe the effects of failure to comply with the procedural steps. The relevant Regulations are Regulations 11 and 12 of the Prescribed Forms and Procedures Regulations. Regulation 11 requires the specified documents to accompany the form, but Regulation 12 provides two processes by which the failure to send the documents will not be regarded as invalidating the application. Under Regulation 12(1)(a) an applicant may provide an explanation for the failure, which the Secretary of State considers to be satisfactory. Otherwise, it is for the Secretary of State to raise the issue within 21 days of the date on which the application is made and it is only if the applicant does not comply with the requirements within a reasonable time (28 days at the most) thereafter, that the application is to be regarded as invalid.

33. In the present case, although there had been some correspondence between the Secretary of State and the appellant's representatives before the form was submitted, the Secretary of State has pointed to no correspondence after the submission of the form that could possibly amount to notification under Regulation 12(1)(b). The effect of the failure to give any notification to the applicant is that the absence of the documents does not invalidate the form.

34. It follows from the above that the appellant made a valid out of time application for indefinite leave to remain as the victim of domestic violence by her form submitted on 3 June 2004.

    What evidence was the Immigration Judge entitled to take into account in reaching his determination?

35. The appellant's application was refused because, although she was treated as having by some process made a valid application, the particular evidence demanded by the application form was not available. As we have seen, the notice of refusal challenges substantively whether the appellant had been subject to domestic violence during the probationary period of her marriage. That challenge was partly incoherent because the Secretary of State did not have knowledge of the dates of the probationary period. The Immigration Judge recorded in his determination that, before him, the occurrence of the domestic violence was no longer contested. We have no reason to suppose that he was inaccurate in so stating. The grounds for reconsideration are devoted to procedural matters and, in effect, to the admissibility of evidence, rather than to the question of whether the domestic violence actually occurred.

36. It is submitted on behalf of the Secretary of State that, because of the terms of the Immigration Rules and the Immigration Directorate's Instructions (IDIs) a person cannot succeed in an appeal against the refusal of indefinite leave to remain on the ground of domestic violence unless the domestic violence is proved in the manner required. Proof by other evidence, it is said, will not suffice if the specified evidence is not available.

37. We must deal first with the reference to the IDIs. We think they add nothing to the Secretary of State's case, and make no difference to this appeal. The IDIs are instructions by the Secretary of State to his officers. They are not part of any statute, or statutory instrument, and they are not part of the Immigration Rules. The Secretary of State is not entitled by instructions to his officers to restrict the rights which would otherwise exist under legislation and the Immigration Rules. It follows that the IDIs can be of relevance in an appeal only if they exactly reflect the contents of legislation and the Immigration Rules or if they are more generous than the combination of those other sources. The IDIs demand no further reference in this determination.

38. The suggestion that an appellant appearing before the Tribunal and seeking to prove a fact of which he has the burden of proof is limited to proving it by evidence and on terms prescribed by the respondent is a somewhat alarming one. The terms of paragraph 289A of the Immigration Rules, if interpreted in the sense for which the respondent contends, and if directly applicable, as he submits, to the determination of an appeal, apparently mean that any evidence available to the appellant, however independent and however persuasive, can be excluded from the decision-making and appellate process by the respondent simply not "requiring" it. Further, an appellant who is unable to produce evidence that is "required" by the respondent will be prevented from proving his case, however persuasive the other evidence that he submits. If the Secretary of State's case is right, the Immigration Judge could be required to dismiss the appeal, and to ignore the persuasive evidence, for the simple reason that the evidence "required" had not been submitted.

39. That submission is troubling. It calls into question the independence of the Tribunal as a trier of fact, because the respondent seeks in this way to control the Tribunal's access to evidence of the facts in question. But, where the respondent does not challenge the accounts of the domestic violence, the submission moves from the troubling to the absurd. It is in our view extremely unlikely that Parliament could have intended that the respondent was entitled to say (as, in effect, he does in this case): "I do not deny that you have been the victim of domestic violence; you may well have been; but because you do not prove the domestic violence in the way that I require of you the Judge is required to find that it did not happen."

40. The mere fact that a conclusion is troublesome or absurd cannot of itself give us jurisdiction to put matters right. We should, however, have those considerations in mind when seeking to interpret the statutory provisions which alone give the Tribunal jurisdiction. There is no doubt that the appellant's claim to be entitled to succeed in this appeal (other than under Article 8) must depend on the duty of the Immigration Judge under s86(3) of the 2002 Act to allow the appeal in so far as he thinks that the decision "was not in accordance with the law (including Immigration Rules)". Given the terms of the Immigration Rules, which require an applicant to produce "such evidence as may be required by the Secretary of State", it is clear to see that an appellant who seeks to succeed without producing such evidence has a difficult task. Is the task impossible? If it is, the absurd and troubling conclusion must stand. We do not, however, think that the task is impossible. Four factors lead us to the conclusion that the Immigration Judge is entitled to make a finding of domestic violence on all the evidence available to him and, if he makes such a finding, is entitled to allow the appeal (other things being equal) under s86(3)(a).

41. The first factor is one to which we have already referred in passing. It is that the Tribunal is supposed to be an independent judicial body, and that the likelihood therefore that Parliament intended one of the parties to be in a position to control the other party's access to independent fact-finding by the Tribunal is very low indeed.

42. The second consideration is that the Immigration Rules are addressed to those who make immigration decisions, not to the Tribunal evaluating such decisions subsequently. It may well be right to instruct the officer making the initial decision, that he is to make a positive decision in favour of the application only in certain circumstances. A rule such as paragraph 289A which is so obviously directed to the process for applications is unlikely to be intended to regulate also the substantive determination of an appeal before the independent Tribunal.

43. Those two considerations are not of themselves more than pointers to the direction in which the other two considerations can take us. They could not of themselves enable us to say that, in a case like the present, the Immigration Judge was entitled to allow the appeal in the absence of the "required" evidence.

44. The third consideration relates to the question whether the provisions of paragraph 289A are intra vires the Immigration Act 1971 if interpreted in the way suggested by the Secretary of State. We have set out the general provisions in that Act relating to the making of Immigration Rules earlier in this determination. The precise Parliamentary process by which the Rules are made is not for present purposes in issue. What is notable is that Parliament regarded it as necessary to add s31A. That would appear to be an acknowledgement that the unamended provisions of the 1971 Act gave no power to prescribe forms or procedures as part of the Immigration Rules. It would appear to follow that the prescription of forms or procedures does not come within the phrase in s3(2):

    "the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter".

    Paragraph 289A does purport to regulate procedure but, as we have already shown, does so by reference to the express power given by s31A and exercised by way of the 2003 Regulations. But the power under s31A is not a general power to make Immigration Rules in an area in which Immigration Rules could not previously be made. It is a power to impose procedural requirements by statutory instrument; it is a power to make such requirements in respect of applications; and it is a power to specify in the Regulations what would be the effect of any failure to comply with those Regulations. There is no question but that the Regulations themselves are intra vires, and in our view there is no question but that the Immigration Rules are intra vires insofar as they apply to applications. The Immigration Rules perfectly properly can, and often do, summarise the law for the benefit of primary decision-makers. Paragraph 289A(iv) is certainly valid insofar as it summarises the impact of the Regulations. But the Regulations apply only to the process for making applications and for determining whether an application is valid or invalid. They have no bearing on whether a valid application should be granted or refused.

45. What is being said in this appeal is that paragraph 289(iv) also imposes procedural requirements on the determination of the merits of an application or appeal. But if there was power to impose procedural requirements by Immigration Rules, s31A would have been unnecessary.

46. For this reason we consider that the provisions of paragraph 289A that refer to the need to provide the evidence "required" by the Secretary of State apply only within the parameters of s31A and the Regulations. Once a valid application has been made the role of the "requirement" ceases and, in accordance with the power to make them under s3(2) of the 1971 Act, the provisions of paragraph 289A should be read without reference to the requirement. On this view, for the purposes of an appeal, paragraph 289A(iv) is to be read down as:

    "(iv) is able to establish that the relationship was caused to permanently break down before the end of that period as a result of domestic violence."

47. The fourth consideration is based on s85(4) of the 2002 Act. That provision applies to in-country appeals, and it is clear that all appeals against the refusal of indefinite leave to remain as the victim of domestic violence are likely to be in-country appeals. It provides that the Tribunal

    "… may consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of decision".

    The crucial phase for present purposes is "the substance of the decision". In the decision under paragraph 289A, "the substance" is the domestic violence, not the question whether the appellant has produced the evidence "required". Section 85(4) thus appears to give the Tribunal the power to consider any relevant evidence relating to the domestic violence. It is difficult to see what the purpose of considering such evidence would be, if the Secretary of State is right that it would have to be ignored unless the "required" evidence had also been produced.

48. These four considerations all point to a conclusion that the Immigration Judge is not bound by the requirements of the form or those of the paragraph 289A(iv) as expressed, but is entitled to make his determination on the basis of all the evidence before him, giving appropriate weight to each item as he thinks fit. It follows a fortiori that an Immigration Judge is entitled to find that there has been domestic violence, and to allow the appeal on that basis, where the respondent concedes that there has been. That conclusion follows whether or not the Immigration Judge finds that the "required" evidence has been produced.

49. For the foregoing reasons we find that the Immigration Judge made no error of law in his determination allowing the appeal under the Immigration Rules. We therefore do not need to consider whether the appeal succeeds also under Article 8.

    Postscript

50. We accept that it may be that the appellant in this appeal was fortunate in that the respondent did not proceed under Regulation 12(1)(b) by giving her notice of the failure to provide the required evidence with her form. The consequence of that, as we have found, is that the application by form was a valid application in this case. We emphasise that we have heard no argument, and we know of no reason, to suggest that the Regulations are not entitled to provide as they do. If the Secretary of State had followed the procedure under Regulation 12(1)(b) and the appellant had still failed to provide the required documents, her application would certainly not have been valid. Under those circumstances it appears to us that, even after the service on her of some immigration decision, she would have been bound to fail in any appeal under the Immigration Rules and the general law. But if there has been a valid application (either by supply of the documents or by giving an explanation for their absence that it is accepted by the Secretary of State), then on an appeal the Immigration Judge cannot be restricted to the specified evidence in determining whether there has been domestic violence. We should also add that even if there has been a valid application there will be no right of appeal against a refusal to vary the applicant's leave, if the application was made out of time (see paragraph 24 above). The decision against which this appellant appealed was a decision to remove her. That fact itself carries a further hazard for prospective appellants because there is no general in-country right of appeal against such a decision; but here again this appellant is fortunately placed, because she raised human rights issues from the beginning and so has an in-country right of appeal: s91(1) and (4).

51. Finally, after we had heard the substantive argument in this appeal but before the adjourned hearing, the Tribunal published its decision in RH [2006] UKAIT 00043. Neither party made any submission on it. We do not entirely agree with that decision. In particular, we do not agree that the Rules give a general power to make IDIs on procedural matters going beyond s31A and the Regulations including the forms. It is not entirely clear whether the application in that case was invalid for failure to comply with the requirements as to documents, or valid because the Secretary of State had accepted the reason for their absence under Regulation 12(1)(a) although nevertheless deciding that, without them, he was not persuaded on the substantive merits of the application. To our mind, as we have endeavoured to explain, the distinction is crucial. If the application was not valid, the appeal could not succeed. If the application was valid, the appeal could succeed despite the lack of documents.

    Decision

52. We affirm the Immigration Judge's determination. As he found, and we have agreed, that the respondent was wrong to refuse to grant the appellant indefinite leave to remain, we now direct that she be granted indefinite leave to remain under

    paragraph 289B of HC 395.

    C M G OCKELTON

    DEPUTY PRESIDENT