Seeking Settlement as a Migrant Victim of Domestic Violence

Section 1: Webinar

• Webinar

  Seeking Settlement as a Migrant Victim of Domestic Violence

  Welcome to this session at this immigration session for data law on seeking settlement as a migrant victim of domestic violence. My name is Priya Solanki and I'm a barrister practicing at one point, court chambers in London. Now this session is about making applications for indefinite leave to remain as a victim of domestic violence under appendix F. M. Of the immigration rules. We are going to cover quite a lot of material in this session. Um, just to give you an overview of what we're going to look at. We're going to start by having a look at the definition of domestic violence. Then we're going to move on and look at the destitution, domestic violence concession. And then we will look at appendix f M D V I L R and the requirements that have to be met for individuals to make successful applications for indefinite leave to remain as victims of domestic violence. And then we will look at how to challenge adverse decisions. So whether or not there is a right of appeal, whether you can argue that there's one, um arguing administrative reviews and then we'll touch upon judicial review and pre action that is to So as there's so much material to go through, Let's make a star the definition of domestic violence. Now, the definition is quite broad and that means that practitioners can try to say that their client's circumstances do meet the definition of domestic violence in a range of circumstances. So let's just have a look at that definition. It's any incidents of that means it can be a one off incident or a pattern of incidents of controlling coercive or threatening behavior. Violence or abuse between those aged 16 or over who are or have been intimate partners or family members. Now, in terms of those particular parts of the definition, let's have a look at the word controlling. So controlling is defined further in the home office guidance as a range of acts designed to make a person feel subordinate or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain. Depriving them of the means for independence, resistance and escape in terms of coercive behavior and that is described as an actor and a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish or frighten a victim in looking at abuse. The guidance makes absolutely clear that there is no distinction made between psychological abuse and physical abuse And in reference to those aged 16 or over practitioners will be aware that in order to make an application as fails for a partner, you have to be aged over 18. So, the reference to age 16 or over, it doesn't really Impact on these applications because Africans will be over the age of 18 to be eligible anyway. Now in respective. Um, the violence coming from partners or family members. Family members includes in laws or step families. Um, so there is quite a lot there for you to be able to work with in saying that the definition is made out on the facts of a particular case. Mm Let's now move on and have a look at the destitution domestic violence concession. And so this was introduced in 2012 and it was first piloted through something that was called the Sternum Project. And the reason that it was introduced was that there was recognition by the home office that many victims of domestic violence, they were totally financial dependent financially dependent upon their abusive partners. Um Their visas were endorsed with ordinarily no recourse to public funds so they couldn't claim any benefits. And because of the living situation that they were often in or their background, they were not in employment so totally financially dependent upon their abusive partner. And that meant that they felt that they had to stay in their abusive situation because they wouldn't be able to seek accommodation or have any finances. Um and so they simply wouldn't be able to sustain themselves if they tried to flee recognizing this. Um What the VDV concession does, if it grants individuals leave outside of the immigration rules for a period of three months with recourse to public funds. It allows individuals to flee the matrimonial home and to access accommodation and benefits whilst their application is pending because they are able to have recourse to public funds in that three months that they have, they are saying that they are going to make an application for indefinite leave to remain as a victim of domestic violence. So, just a little bit about the application process, I've hyperlinked everything that's on the sides. But the application form is free your best to email the forms, the processing time is said to be around five working days. But that's if their email, if they have posted, they will take longer. Um There is a policy document that stated the fifth of february 2018. Be careful when you're reading that because who is eligible for making an application under the di DV concession. And indeed, under appendix F. M D V I L. R has changed since this policy document was written. So, for example, it doesn't say that partners of refugees um and partners of those who have limited leave under appendix c you are eligible to apply that they are because of amendments that have been made to the immigration rules. Um Now, the policy document effectively says that in order to be able to make an application, an individual is saying to the Home Office that their relationship has broken down as a result of domestic violence, that they need financial help to leave the relationship and that they're going to make an application for ill are under domestic violence rule significantly, they need to be able to demonstrate that they have been granted leave as a spouse or a partner of a british person of a person present and settled in the UK or as a partner of the refugee or as the partner of a person with limited leave under appendix E. U. If you make an application for somebody who is not eligible. So for example a dependant partner of a tear for student, then ultimately what you are saying to the home office is that person's basis for being in the UK no longer stands and it would be open to the Home office to curtail that individual visa and that would obviously be disastrous for them. Now, I have seen applications made for the wrong type of applicants. Often individuals are assisted by social services in making these applications of friends. So sometimes applications are made by the wrong type of applicants. An individual does not need to have extent leave to make an application. So it might be that their levers a partner has expired because they weren't able to flee their abusive situation. That there might be a range of reasons for that. They wanted the relationship to work out. They were too scared to leave by the time they did leave, their visa has expired, it might be that their passport was being withheld from them. For example. Now if your client does not have leave to remain but they last had levers a partner then they will still be eligible to make an application under the D. V. V. Concession and leave outside of the immigration rules. Um So um we have just been talking about eligibility and I want to just stay with that for a little while longer because there's been some interesting case on this issue. Now, it used to be the case that when appendix F M D V L. R was first introduced, it didn't include Partners of refugees In 2016, there were two cakes is that we have heard one in the Court of Appeal and one in the Scottish Court of Sessions and they both involve partners of refugees. Now, the case in the Court of Appeal, it was said that that individual, they wouldn't be eligible to apply for indefinite leave to remain under appendix F. M. So the Home Office was right to refuse their application under the di DV concession. However, in the same year, the Scottish Court of Session looked at the situation of partners of refugees in some detail and what they concluded was that um partners of refugees had an expectation to settle in the UK. And the reason that they had an expectation to settle was because most refugees went on to get indefinite leave to remain. In fact, the statistics That were shown to the court showed that 95 of refugees went on to obtain indefinite leave to remain. And that would mean that their spouse would go on to obtain that leaves two. Now. Um considering that and considering the policy objectives behind the di DV concession and behind appendix F. M D. V I L. R, they said they could see no justification for the difference in treatment for partners of refugees. And they said that it was unlawful for these individuals not to be included in the di DV concession um and dependents FMD V I L. R. As a result of this decision, appendix F M D V L. R was actually amended to now include partners of refugees. So it was quite a significant development. And it's a case that's worth reading in full. And they said that it was a violation of Article 14 of the European Court of human Rights. And as a result of that decision, appendix F M DV ISLA was amended to include this category of applicants. So how did they come to that conclusion? So, they looked at statistical material that was before the core, And what that showed was that 95% of refugees who were given five years limited leave to remain, went on to obtain indefinite Leave to remain at the end of that five year period. And they said that refugee status was almost it was almost given when you held that that you were going to go on and obtain settlement, the circumstances in which refugee status could be lost were really very slim. And the statistics show that whilst there was something that was called Active review and that refugee status could be revoked, it was quite rare about that happened in the circumstances in which it could happen with slim they're looking at that. They said that partners of refugees had an expectation that they would settle in line with their refugee partners once they were in the UK, their situation was very different to dependence of tear for students, for example, who could have no real expectation of that. And again, that they said that they couldn't see that difference in treatment was proportionate. So, fortunately following that, the rules were amended now, more recently, there was a there was some litigation involving the partner of a british nationals who was not in the UK on a route to settlements. She held no leave at all. And this is a case of FAA Sudan. Now in their face, Sudan, there was a migrant who um was in a relationship with the british national. He took her from Sudan to the Netherlands and she lived there in a small village and her husband came to see her, came to visit her and he would stay with her for a short period of time and give her money when he came to see her after a year or so of of her being there. He collected her and he brought to the U. K. On a ferry. And she initially thought that she was coming here for a shopping trip when she got here. She wasn't asked for to show any papers. And she went to live with her husband in Birmingham and her daughter was born in the U. K. Later that year. And she ran, she had two british Children, both of whom resided with her. Uh she left the family home um as a result of domestic violence, she saw assistance and Birmingham social Services made an application under the di DV concession for her. And the Secretary of State said that she was not eligible for the di DV concession as should not enter the UK under one of the routes for which the di DV concession was established. So she didn't hold leave as a partner of a british person. In fact, she didn't hold leave at all. Now there was an argument in that case that surrender single ply to her, but of course her husband hadn't worked or um uh he wasn't self employed in the Netherlands. So that argument was quite quickly thrown out. And what the court said about the di DV concession, they said it was clearly there to address individuals who were on a route to settlement. And that the reason for that was that individuals who run that route to settlement would fear losing that route and fear losing their status if they left their abusive partner and having this role in place have them to leave their partner without fearing and having that held against them, somebody like FAA who held no leave couldn't have that held against her. Um And they said applying all of that that there was clear rationale for the benefit of the DI DV concession to only be there for those who were on a route to settlement. Now, that decision was appealed to the court of appeal. And on appeal to the Court of appeal, they upheld the decision. It was reiterated by the Court of Appeal that the concession is limited in scope, that there's objective justification for the distinction in immigration status, and that the case was to be distinguished from the applicant in a which we've spoken about that with the Scottish Court of Session decision, because they held limited leave as a partner in the UK, whereas if they did not have leave at all. Okay, so that deals with the DI DV concession, but just before moving on, I just want to highlight some of the things about the DI DV concession and what you're supposed to do once your clients have got leave outside of the immigration rules. So well, as we've discussed, it gives them three months leave to remain outside of the rules with recourse to public funds in that three months they're supposed to submit their application for settlement as a victim of domestic violence. Now, if they let the leave laps, then they will obviously be here without leave to remain. Of course, there's nothing that would prevent them from then going on to make the settlement application as a victim of domestic violence, because you don't need excellent leave to make an application for settlement as a victim of domestic violence as we've discussed. Now, in terms of having an adverse decision under the di DV concession, it's not an appealable decision. Um the only way to challenge that decision is by sending a pre action letter and if that has no success a judicial review, but remember the grounds on which individuals are available to the di DV concession are quite limited in scape. Now, the policy guidance says that reconsideration requests can be submitted where it's being argued that the policy has been incorrectly applied, but any reconsideration requests need to be agreed by chief caseworker. So there is a process there for seeking reconsideration, but again, it's on slim grounds. Now, some of you might think that three months to make an application for settlement as a victim of domestic violence doesn't provide very much time. And if you are concerned about that, then when making an application in the covering letter, you can explain what evidence is outstanding and when you expect to have it from and you can give bates and supporting evidence. Now, sometimes you can be waiting for medical reports from the GP, you can be waiting from for documents from the police or indeed documents from the court and those types of documents can take some time together and there can be delays with it as well. You should share what efforts you've made to try to obtain that sort of documentation and um provide any supporting evidence in that regard. Now, if the Home Office then went on to refuse the application without waiting for that evidence or having regard to the timescales that you've provided, then you would be able to potentially raise that in a challenge, but you're going to have to step that up very well from the outset, if you want to really be able to make that sort of point. Um And it may well be. And in fact, in the cases that I have seen, generally speaking, where there are reason, requests for them to wait for evidence that are supported by evidence, they do tend to make contact and or wait. Okay, now, now we're going to move on and have a look at the actual immigration rules and the requirements for making an application for settlement as a victim of domestic violence. Well thought by having a look at the V. I. L. R 1.1, and what that says is that applicants must be in the UK. An applicant must have made a valid application for indefinite leave to remain as a victim of domestic violence. Now, what that means, If it has to be made on the correct form with the correct fee paid or a fee waiver having been granted, the applicant must not fall for refusal on suitability grounds, and we'll revisit that point a little bit later on, and the applicant must meet all the requirements of Section E. D. V. I. L. R, which are the eligibility requirements for victims of domestic violence. Okay, so um let's look a little bit more like the eligibility requirements. So we spoke about who is eligible to make an application for the di DV concession and how it's limited to spouses and partners of um individuals of who are It's limited to spouses and partners of 40 citizens persons president settled in the UK. Persons with refugee leave or a person in the UK with limited leave under appendix E. U. In accordance with gen 1.3. Now, what the rules say is that the applicants first grant of limited leave must be in that category and any subsequent grant of limited leave must have been in that category, all they must have been granted leave to enable access to public funds. So that's um they've been granted leave under the di DV concession or they've been granted leave under D. D. V. I L. R 1.2. And we're going to revisit that shortly. So they must have leave in the right category in order to be able to make an application. But the requirement that I really want to focus on is E. D. V. I. L. R. .3. Now, what that says is that the applicant must provide evidence that during the last period of limited levers, a partner um during their only period of leave, they're applicants relationship with their partner broke down permanently as a result of domestic violence. So there's a few things there to pick up on? They must provide evidence that during the last period of leave their relationship broke down as a result of domestic abuse. Now, my guarantees pick some parts of that out and focus on what the authorities have said about what that means. So does the date that the violence has occurred make a difference to applicants? Yes, it does. Um, you're important case to consider on that is i in Pakistan. Now, I am Pakistan was a case in which it was argued that if domestic violence had occurred after the period of leave as a partner had come to an end, individuals were still eligible to make applications for settlement as migrant victims of domestic violence. And the court said that that wasn't the case, that the rules were quite clear that the domestic violence has to have occurred during the period of the during the period of leave. It can't have occurred after the period of leave. But the thing I want you all to be quite aware of is that domestic violence can be ongoing for quite some time in a relationship may well have broken down long before the parties have separated. And we'll revisit that point in a second. But I want to highlight that the policy guidance also makes clear that the individuals has to provide evidence to show their relationship broke down during the period of having leave as a result of domestic violence. Okay, so we've spoken about how the relationship has to break down as a result of domestic violence. But what about when um documentations that have been sent to the family court show that there's other reasons that a relationship might have broken down as well. Or what about where the medicines that have been provided to a family court don't mention domestic violence at all. Or what about where your client is actually saying to you that there are other reasons that the relationship has broken down. Now. Don't panic in that situation. What the castle says is that domestic violence has to be the positive force of the breakdown in the relationship. Um, in a case of a g India, the immigration judge did not make clear findings on whether domestic violence had occurred, and he didn't make clear findings on as a result in whether domestic violence was the positive force of the breakdown of the relationship. Now, what the cause of the people said was that the evidence look like the husband was violent and cruel man and that both characteristics could not be separated out from the end of the marriage. There might be lots of reasons that are advanced. But you try and think about those words, it might be that the violence cannot be separated from the end of the relationship. In the breakdown that's occurred because the breakdown could have occurred, as I have said earlier long before. The applicant thinks it has. Often applicants say that it's the point that they actually left the matrimonial home. But it may well be before that that their relationship has broken down in Pakistan. The tribunal said um that in assessing this issue, the court was to assess the evidence in the round, looking at the totality of the evidence and remembering that a broken marriage may have ended before the party separated and that the marriage may have broken down as a result of domestic violence even if other grounds are given in matrimonial proceedings or raised before the tribunal. Um So consider a situation where an individual is saying that my partner had another partner or he had a second wife. But they are also saying to you that they were being abused physically and psychologically by their partner and that their partner was spending time with both them and the second wife of the second partner in those circumstances. The Home office might argue that the relationship breakdown as a result of the second relationship. But actually what the facts that I've just described there, they tend to show that for the for the partner in the U. K. He didn't consider that to be an obstacle to the relationship to the migrant continuing. Um Just that he was happy to continue. He or she was happy to continue with those relationships. Now. Um you would you would want need to work quite carefully through facts like this when drafting witness statements and make sure that you really work through with the clients in some detail when the violence started, whether there's been points of escalation, what impact that's had on the relationship, when impact any Sort of 2nd relationship has had. Um and you want to try and figure out at what point the relationship started to really deteriorate and when there was a breakdown, Okay, what the policy guidance they about evidence. Now, there is a table of evidence that set out in Home Office policy guidance for victims of domestic violence and that table of evidence. Um It less evidence In four different categories, conclusive evidence. Strong evidence, moderate evidence and weak evidence. Now, it starts by saying that the list is not indicative and all evidence should be considered in the realm. So basically, my approach is where the policy guidance is useful to you then refer to it. If you've got the sort of evidence that they're saying is strong or conclusive, then refer to it and say that this case should be allowed on the balance of probabilities on your own guide, this is strong evidence that is being provided or conclusive evidence, where you are providing the sort of evidence that the Home Office say is weak or even moderate, then I would say don't attach too much weight to it. Put forward your evidence and have a look at some of the authorities, which we're going to go through and see how those help you to argue that your evidence does make out and that your client's been a victim of domestic violence. So the sort of evidence that they considered to be conclusive is a criminal conviction, a police caution, a final order in a civil court where judges found domestic violence, um, and strong evidence. They say that includes a final order where there's been no fact finding a CPS charging decision, a false marriage protection order, letters from social services or organizations that support victims of domestic violence. We'll have assessed the applicant as being a victim. And they also say letters and statements from independent witnesses. Now, I just want to stick with those last two when looking at strong evidence in terms of letters and statements from independent witnesses. What the guy that's actually says is that's where they have actually seen the violence themselves. Now think about how many individuals will have witnessed. The ones that will be very, very rare because it's a very private thing. Um, and in terms of who they like these, that sort of evidence to come from, the guidance says that it shouldn't be from relatives of people who've got a vested interest. Now, that's also going to be difficult for most of our applicants because it's unlikely that they're telling people who aren't their friends or aren't family members, what they're going through because of the shame and the embarrassment of it. And also because they have usually come to the UK not knowing anybody and they aren't farming friendships because of their abusive situation. Um in terms of letters from social services and organizations, you can see what I've just said there and how it says that it should assess the applicant as being a victim of domestic violence. So often what you see in decision letters is the Home Office saying you provided a letter from a domestic violence support organization. But they haven't said that they've assessed you. Now, the truth is, they, they they are not going to be writing these letters and saying that the applicant has been using their services for six months or eight weeks even unless they have assessed them to be a victim. So it's quite odd that the Home Office required them to specify that. But in order to make applications easier for your clients, you should really return to the organization and asked them to address it in the way that the Home Office suggest because that would make your evidence strong. Um instead applying their own guidance in terms of moderate evidence that includes an arrest for domestic violence. Um an ex parte order police report of attendance at a domestic violence incident and medical reports from the UK hospital or GP confirming injuries consistent with domestic violence. I'm always quite shocked that that appears as the only moderate, in my view, it should appear higher. The Home Office can be quite critical of GP reports, but then be so worried about that as we are going to see the case. All shows that they shouldn't be so critical of it and they should attach weight to that evidence, weak evidence. They say weak evidence, a statement from an applicant. So a witness statement from the individual who has gone through the domestic violence they say is weak. Now the reality is that is sometimes the best evidence that you have in a case. The applicant actually describing everything that they have been through. So I wouldn't worry so much about the fact that the guidance says that that is weak evidence. They also say that emails, texts and photos and letters which repeat and applicants account a week. Now, often those can help to build a picture of what an individual has gone through. They might have received very abusive text messages, abusive emails in letters and that alongside their witness statement can be quite powerful evidence. Okay, so I said we're going to speak about some of the case law. Now, the castle has effectively established that the guidance is just guidance. If the Home Office wanted domestic violence to be evidence by a specified list of documents, they could have put that into an immigration rule as opposed to in guidance. Now, those of you that practicing immigration a lot will know that appendix F. M includes a specified evidence section and they're quite detailed in their immigration rules about specified evidence that they want to see for finances, for example. And also specified evidence is set out in respect of adult dependent relative cases. But they haven't included specified evidence for domestic violence. And the fact that they haven't done that means that this point that's made by ste jack, that if they wanted to do that, they would have included it in the rules. Um it's still a valid one to make and it remains the case. That the guidance is just guidance. Now what was said in each track was that they provide a useful tool for caseworkers, but that case workers need to conduct a fact finding exercise and that can be a difficult task for them, but they need to do that by going through all of the evidence with care. Now, a very useful case to look at is a case of balakot we Uh Balik is a 2012 high court decision and that says that an applicant erman evidence must be considered that where they're supporting evidence from other individuals. That can help to build up a case. But a case worker can rarely decide whether an individual um allegations of domestic violence are unfounded without interviewing an african and asking questions about the alleged domestic violence. So you might have an applicant who you think provides really good evidence and you might think that they're going to be very convincing. And if you don't have very much supporting evidence. There is nothing that would prevent you from saying to the Home Office in a covering letter that you invite them to interview your applicant if your applicant feels okay with that. Now it's analogy that they will take you up on that, but if they don't and then they refuse, you can refer them to the fact that you gave them that invitation and when you're getting them that invitation referred to below kui and the fact that the High Court suggested that that was something that often needed to be done in cases um and then their failure to do that can be something that you raise in a challenge going forward. Um The case also said that while individuals unable to provide the sort of evidence that the Home Office is seeking in their guidance caseworkers should contact an applicant and give them an opportunity to provide evidence and where they are unable to do so, they should seek an explanation as to why they were unable to do so. Now, I don't see a Home Office caseworkers taking those steps, but it is useful to see that that's what the court felt that they should should do. And you can obviously refer to that in a challenge and in representation from the outset that barbecue is very good and um challenging the way that the Home Office approach police report and GP reports. So just for example, in respect of GP reported the decision later in that case said that the GP wasn't qualified and that the medical evidence that was provided, it wasn't evidence of domestic violence. And the court said that the G. P. Was qualified when he'd written in the when they had written in the notes that it was a domestic violence consultation. Um and that and they referred the client on for depression for sorry and they were for the client on for medication and therapy. That was their assessment of the situation. Um And um they said that G. P. Would be not acting professionally if they had said that consultation was for domestic violence and indeed it was and that was their professional assessment of the situation. Okay. There's another case that I had put on the slide um in Pakistan where in Pakistan is a good case to read through for just learning how important it is to work through evidence before submission. In that case, there was an applicant who had been who had said she was too scared to discuss the domestic violence with medics because the family were present at the hospital. And what the court said was that there was a time in the hospital where she was simply with the doctor and an interpreter, with no family members present and that would have been her opportunity to disclose it. Now, I think if that evidence had been worked through properly and explain from the outset, it would have probably been the case that she was still scared because the family was still in the building. She was probably scared about them coming in and there may well have been a multitude of other reasons as to why she did not want to disclose domestic violence at that stage. It may well have been shame on her not knowing whether or not she wanted that relationship to come to an end or not. Um So work through medical evidence with real care. Often I see um that there can be entries in medical records um that can cause the Home Office to question the claim that's being advanced that aren't explained and witness statements or representations. Okay, now everyone is going to return to the suitability requirements and the reason that I want to discuss um suitability requirements. I'm sorry if you could um I'm sorry, I'm just going to go backwards and stick with the evidential requirements because there is a case um that I want to mention. Um that's really important. It's a very recent case called Solomon. I'm going to give you the citation of it. It's 2020. Italy hates the 3 to 6. Now, Solomon was a case in which there was a male victim of domestic violence and he hadn't told the police or the medical authorities that he was a victim, but he had explained to the Home Office when he made his application the reasons for that, he said it was a sense of shame, callousness. He continued to love his wife, he feared losing her or getting her into trouble. And the application that was made by him was rejected. But the court said that the decision letter, whilst it said that the evidence did not domestic did not evidence domestic violence. It didn't work through the applicant reasons for saying that he hadn't disclosed him, and that the reasons that he had advanced were perfectly acceptable ones. Typical responses of an abused partner, the court said, So. Work through those types of reasons. Would um your african and see why it is that they haven't disclosed their domestic violence to individuals or to the authorities um and refer to the case of Solomon when you're making these submissions. Okay? So now I will move on and look at the suitability requirements. Now, the suitability requirements are important to highlight Because they can lead to applicants only getting 30 months limited leave, as opposed to indefinite leave to remain. Now, Um the profession that I said I was going to revisit earlier was di DV Isla at 1.2. Now, what that says is that if an applicant does not meet the requirements are indefinite leave to remain because suitability grounds. S. I. L. L. A 1.5 or 1.6 have been raised, then an african, will it Will be granted further limited Lee for a period not exceeding 30 months. So what are SLR 1.5 and 1.6. So s are 1.5 is when individuals who received a sentence of imprisonment for 12 months, um and seven years have not passed since the end of the sentence. SLR 1.6 is well within 24 months preceding the date of the application. The applicants been convicted of or admitted of an offense for which they've received a non custodial sentence or other out of court disposal that's recorded on their criminal record. So far, no one of those situations applied, they won't get indefinite leave to remain. Instead, they will be given Limited leave to remain for 30 months. You might want to explain the circumstances behind any sort of conviction that falls within these provisions. And the reasons for that is that often in a domestic violence situation, an individual can have convictions or out of court disposals that are related to their domestic violence. So often you see um um that there there's been violence by both parties and but it might be from the migrant victim in defense. Um it might it may well be that there is a fire evasion, um um issue that they have got and that might be part of financial control or abuse. It may be that they have a conviction or precaution, for example, for harassment. Often, victims of domestic violence, particularly um those who are worried about family issues, shame issues on the issues really worry about the end of the relationship and the impact that that will have on their families and their relationships with their families. And so they can really pursue for the relationship to continue and that can lead to their abusive partners actually making allegations towards them to the police. So work through those reasons quite carefully with an applicant and see if they can be explained in a witness statement and argue that it's not appropriate for these provisions to be applied in the circumstances because that would mean that the victim is being further punished for the domestic violence that they're being subjected to. So what about applicants like F a Sudan who don't have levers a partner, but they were with a british citizen and um they thought that was going to be a basis for them to be able to remain here eventually. What can you say about their circumstances? Could you argue a case for them? What you want to consider um is a case called Guzman barriers, which makes clear that the fact that relationship or marriage might have broken down as a result of domestic violence. It's something that needs to be considered in any Article eight assessment. In looking at whether removal is proportionate or not, it might be that somebody is here as a dependent of a PBS migrant and that they have lost their leave or no longer have a basis to remain here as a resource of the relationship breaking down because of domestic violence. There might be issues with them returning home with stigma, ostracize ation discrimination. They might have mental health issues, physical health issues as a result of the domestic violence. Um, you would need to evidence things quite well, do strong witness statements and argue that it would not be proportionate for the individual to be removed. These can be difficult cases, but they're not impossible if you prepare well. And of course, if you have the right facts, and we're now going to look at challenging adverse decisions that are made on settlement applications on the base of domestic basis of domestic violence. We're going to start by having a look at administrative review. Um no, we're going to start by having a look at rights of Appeals, actually. And the reason for that is that often um, I am certainly asked if the right of appeal against an adverse decision based on settlement as a victim of domestic violence, where human rights might have been raised in an application. So article three, Article eight, Or Article six, or even protection grounds. Um now, those of you that practice in Immigration law regularly will be aware that the statute was amended and to the extent that rights of Appeals have been severely restricted from what they used to be the nationality Immigration and Asylum Act 2000 and two. That says that a person may appeal to the tribunal where the Secretary of State has decided to refuse a human rights claim made by an individual. So what is a human rights claim made by an individual? And what amounts to a refusal of the human rights claim? So, under section 113 of the 2000 and two Act. Human rights claim is a claim that to remove a person from the UK or to require them to leave the UK would be unlawful under section six of the Human Rights Act. So that all sounds quite straightforward. And the Home Office policy guidance on Rights of Appeals tells caseworkers to look very carefully at whether or not a human rights claim is being advanced as part of an application. And it says things that are really very useful to us in trying to argue. But a human rights claim has been advanced and should be considered by the Home Office. So it says for example, that a claim must be particular rise. So it can't just be A statement such as and my Article eight rights are engaged. And this also raises Article three, there's got to be something more than that in it. But it says that when an individual seeks Leave on medical grounds, that can be an Article three and article a claim if they're engaged in court proceedings in the UK. So there might be ongoing family proceedings or criminal proceedings, then that's an Article six claim. And significantly, it says that a visitor application their space on there for an individual to request leave on human rights Grounds. So one would think if that you can raise it in a visit application form, then it would follow that you could raise it in a domestic violence application form now. Um The separate policy guidance on on visit visas and arguing human rights and visit visa applications. Um and it does say that where human rights are raised, um and the claim is refused, it should attract a right of appeal. So you would think it would follow that where a human rights claim is refused in a D. V. Application, then um there would be a right of appeal to the tribunal. However, those practitioners that do domestic violence applications frequently, um they will be aware that what the Home Office does when they refuse a um domestic violence application under appendix F. M. If they explain why it doesn't meet the eligibility requirements or the suitability requirements and then anything that's been raised in respect of human rights, they tend to say. And you've also raised your human rights were not considering that in this decision, it's open to you to go and make an application. And ultimately what they are making the applicant do is fill out a new application from and pay a fee. Um So let's just look at some of the authorities on arguing human rights and arguing human rights in an appendix F. M. D. V. Application. Um So in the case of Halligan Bar, it was said that human rights claim, it was a claim not to be removed from the UK. An assertion of facts that could constitute an existing um or prospective private and droll family life, the interference with which article it protects. And there's an assertion that removal will interfere with that private or family life. Um So again all sounds quite helpful and like it's going to be quite straightforward to argue that human rights claim is being advanced in a case called 18 2000 and 17. The High Court looked at this issue specifically in respect of human rights being raised in domestic violence applications under appendix F. M. And what they said was that one could easily see that in some domestic violence applications there might not be any human rights came to advance. So consider, for example, an individual who has come to the U. K. As a spouse within a couple of days of entry she is subjected to domestic violence or he is and they flee the matrimonial home and they don't have any friends. They don't suffer with any health issues. They don't have any other family ties here. It's unlikely they're going to be able to say that there's any human rights claim in that scenario. However, consider an individual who has been in a relationship for a couple of years and then the relationship has broken down as a result of domestic violence. They might have british Children. Of course, in that sort of situation they would have a human rights claim to advance, or they might have mental health issues that are quite significant and they might of course even be linked to the domestic violence. Um They again, will have a human rights claim to advance. And what was said by the court in 18 was that one of them a human rights claim? It was firstly said, actually that the Administrative review rules, which said that there was only an admin review from appendix F. M D. V. I. L. R. Applications um that needed to be read in a way that's that said that where a human rights claim was being advanced, it wouldn't just be admin review that was available, there would be a right of appeal against that decision. Um it was also said that the application form for settlement as a victim of domestic violence should be amended so that there was space available to advance the human rights claim. Um and it was further said that to require two applications from a victim of domestic violence was discriminatory because ultimately women were largely the victims of domestic violence and they would bear the brunt of having to make two applications and potentially pay two fees. Um So, um one would have thought that once that decision came out, the admin review rules would have been amended in the application form would have been amended, but unfortunately that did not occur. Yeah. Yeah. Now, I put on the bottom of this, like two unreported um decisions which are useful for you to go away and read it in your own Time. But these are decisions dated 2019 and 2017 from the Upper Tribunal, in which a claim under the Domestic Violence rules was allowed by the tribunal on the basis that the rules could be met. And that meant That the appeal should be allowed under Article eight. And um the other case involved a bereaved partner at type application. And again on that basis on looking at the rules, it was um it's quite a complicated case that one, but effectively looking at the brief partner rules and the ability to essentially meet the requirements of the same. That appeal was also allowed on human rights basis. Now one would think that that would be the sensible approach to give them these cases a right of appeal just as they used to have Before the amendments that were made in 2014. But unfortunately, that is not the situation that we are in. Um Now, what has what has to be considered In looking at whether there is a right of appeal um is section 50 of the immigration asylum and nationality at 2006 and paragraph 34 of the immigration Rules. And what that says is that um the Home Office can require a specified procedure to be followed in making an application. They can require a specified from the submission of specified documents and also asked for a fee to be paid. And the Home Office have relied on this to say that they're perfectly entitled not to consider a human rights claim that isn't made in the way that they that they say that they wanted to be. Now, this was an argument that was considered in a case to call sh Rester in 2000 and 18, not in relation to domestic violence applications, but the Court of Appeal said that the Secretary of State wasn't obliged to consider human rights application where it wasn't made in the way that they require when you look at statute and the Immigration Rules five, um Where did we go from 80 when the court said that human rights should be considered if they're raised in a D. V. Application. So in 2018, Which about a year after 80, there was a decision of the tribunal in a case called Rohingya. It didn't involve a domestic violence application. But what it said was that the issue of whether a human rights claim has been refused must be judged by reference to the decision itself. Now, that was then expanded upon in a case called Ny Ny 2020 of the tribunal decision and that did involve a domestic violence application, in which it was being argued that human rights claim was advanced and refused. And what the court said was that the Secretary of State is refusing a human rights claim when she engages with the claim, and she reaches a decision that the applicant nor anyone else affected has a human right, which is of a kind that entitles that individual to remain in the UK. So she has to actually engage with the human rights claim. So, this paragraph, this line that she puts in her decision letter that says that go away and make a different application, um we're not looking at your human rights in this decision that isn't engaging with the claim. That was what was said in M Y Now M1 was appealed to the Court of Appeal, and it was granted permission to appeal. And in um Granting permission. What the court of appeal said was that under section 113 of the 2002 Act, there was nothing in statute that required the Secretary of State to have engaged with the claim that it was arguably unlawful for the Secretary of State to refuse to consider a human rights claim, and that it was unlawful for the Secretary of State to require further application and further fee for a human rights claim. That I also said that it was arguable that a human rights claim was refused if it was considered and rejected on its merits, and also if the Secretary of State refuses to consider it at all. But they also said that the Interpretation of the Secretary of State with References Section 50 of the 2006 Act, that was also an argument that needed to be considered. Now that case was heard in May. Um And so the decision is not yet out but watch this space. But so for now the common case as to whether or not there is a right of appeal is m Y and Boeing go. And of course the Home Office continued to take the approach that I've already set out. Two. What about where you have got an individual who has been granted limited leave to remain. So say that somebody has been refused on the suitability grounds. We've spoken about under S. I. L. R. 1.5, for Example. And so they've been granted 30 months leave to remain. But your client and your position is is that they should have been granted indefinite leave to remain. Can you try and argue in those circumstances that there is a right of appeal in these cases that are on this side in much ahead. And you're a con what was said is that when the Secretary of State grants limited leave to remain, then she is recognizing human rights came. Um and and indeed um granting it as opposed to refusing it. So there isn't a refusal of the human rights came now in the D. V. Context, that can be quite different because obviously it may well be that their domestic violence application doesn't engage their human rights at all. Um But that they might have very serious health issues and you might have said as part of that application um that their health issues are so serious that there ought to be a consideration of indefinite leave to remain despite suitability grants that have been raised, for example. Um If you have got a rejection on that sort of basis and they've been granted limited leave to remain, you were the cause of action that you would have to follow would be a judicial review because of the current case law. The position is um that in challenging an adverse decision because of the complexities of arguing that there is a right of appeal at all. The way to challenge is to do an administrative review. And we're going to turn to that in a moment. If that fails, then you're doing submitting a pre action letter. And if that fails, you are do engage judicial review. And in your judicial review. You can of course argue um that as part of the decision making the Home Office has acted unlawfully and irrationally in failing to engage with the human rights claim. Now, when you're making that argument, you can refer to what was said by the High Court in 18 and you can also refer to the Home Office rights of Appeal policy guidance. And what that says about caseworkers looking at whether a human rights claim has been advanced and what that says about how you can advance the human rights claim in a visit application for example. So that's just look at administrative review. So admin review against an adverse D. V. I. L. R. Application exists. You can um under a R 2.1 you are you can do an administrative review where you're saying that the decision is wrong due to a case working error. Now case working error is defined at 2.11 and um do .11 d. and E. What that says is that where the original decision maker otherwise applied the immigration rules incorrectly or where the decision maker has failed to apply the Secretary of State's relevant published policy and guidance. So that's really where most of the challenges line. I'm putting a link there for you to the admin review. Policy guidance. Now recently I noticed that on the home office website when looking at the administrative review rules about 2.11 no longer seems to include anything but 2.11 a and 2.11 a. Is basically general grounds for refusal. So if you're saying there's a case working error owing to general grounds of refusal, then you can raise an administrative review But Bc and significantly D. N. E no longer appear on the Home Office website. They do still appears in the policy guidance. But the policy guidance was data the third of september, the archive of the immigration rules up until the 30 September also includes be through to E. But the current immigration rules that appear on the Home Office website by only include a now that's quite concerning and I understand from a colleague in my chambers that this is an issue that has been raised with helper. It is thought that it could be a mistake by the Home Office, particularly because you can see that 2.11 a six, it ends with a semi colon and it would be quite odd for there to have been such a drastic change um to admin review. It would almost render a lot of challenges completely pointless by admin review. So, um just something well highlighting and hopefully it is just a mistake. Okay, so that brings us to an end of this session now, thank you so much for taking the time to listen to me. I hope that you found this useful. This was a session on seeking settlement as a migrant victim of domestic violence for data law. Um and my name is Prince Solanki and I'm a barrister at one called Chambers in London. Thank you

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