MD (HC 395: ‘two years’) Jamaica [2008] UKAIT 00041

ASYLUM AND IMMIGRATION TRIBUNAL

THE IMMIGRATION ACTS

Heard at:  Field House                                  	Date of Hearing: 8 April 2008
Determination delivered orally at hearing

Before:

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

Between

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation
For the Appellant:		Mr. L. Ukonu, instructed by Chase Christopher Roberts & Co
For the Respondent:		Mr. J. Gulvin, Home Office Presenting Officer

The requirement in para 289A and other paragraphs of HC 395 that a person have been granted two years’ leave is met by a grant of more than two years.

DETERMINATION AND REASONS

1.	The appellant is a citizen of Jamaica.  She applied to the Secretary of State for leave to remain in the United Kingdom indefinitely as a victim of domestic violence.  Her application was refused.  A notice of that decision was sent to her on 3 August 2007.  She appealed to the Tribunal and an Immigration Judge dismissed her appeal.  She sought and obtained an order for reconsideration.  Thus the matter comes before us.

2.	The appellant married her husband on 1 July 2000.  He also is a citizen of Jamaica, and they were married in Jamaica.  Her husband, however, whom we shall for simplicity’s sake refer to as the sponsor, is a member of Her Majesty’s Forces and is agreed to be, for the purposes of the Immigration Act, a member of the “home forces”.

3.	After the marriage the appellant and the sponsor were in the United Kingdom from September 2001.  The appellant’s presence here was in virtue of a visa granted to her as the dependent of a member of the Armed Forces and valid until 10 September 2006.  The appellant returned to Jamaica to continue her career in the Jamaican Police Force until about January 2003, when she arrived here again.  By then her husband was serving in Iraq, but he returned and it is said that following his return there were a number of incidents of domestic violence.  It is as a result of those incidents that the present application was made.  It was refused formally on the basis as set out in the notice of refusal that “The Secretary of State is satisfied that you were not admitted to the United Kingdom or given an extension of stay for a period of 2 years as the spouse of a person present and settled in the United Kingdom; therefore you do not meet the requirements of Immigration Rules relating to victims of domestic violence at Paragraph 289A”.   That is a reference to the relevant provision of the Statement of Changes in Immigration Rules, HC 395. 

4.	We will set out that paragraph in full:

“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 of 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; or
(iii)	the relationship with their spouse, civil partner, 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.”

5.	The Immigration Judge dealt with two issues specifically in relation to the Rules.  It appears that there may be three issues to be dealt with and, de bene esse, we have heard submissions on all of them.  

6.	
The first, and the matter on which reconsideration specifically and solely was ordered, is the question whether the sponsor was to be regarded as a person present and settled in the United Kingdom.  The Immigration Judge agreed with the submissions made on behalf of the Secretary of State before her, that the sponsor was not present and settled in the United Kingdom.  The grounds for reconsideration are largely devoted to that issue.  As it appears to us, the law is contained partly in ss 8 and 33 of the Immigration Act 1971 and partly in para 6 of the Immigration Rules.   In s 8(4) there is the following provision:

	“The provisions of this Act relating to those who are not British citizens, other than the provisions relating to deportation, shall also not apply to any person so long as either ―
(a)	he is subject, as a member of the home forces, to service law; or
(b)	being a member of a Commonwealth force or of a force raised under the law of any associated state, colony protectorate or protected state, is undergoing or about to undergo training in the United Kingdom with any body, contingent or detachment of the home forces; or
(c)	he is serving or posted for service in the United Kingdom as a member of a visiting force or of any force raised as aforesaid or as a member of an international headquarters or defence organisation designated for the time being by an Order in Council under section 1 of the International Headquarters and Defence Organisations Act 1964.”
		
As we have said, the sponsor’s position is that he is a member of the home forces and therefore falls within subs (4)(a).  Subsection 5 of the same section provides for some restrictions on the applicability of exemptions granted by s 8, but it is clear that it imposes no restriction on those within s 8(4)(a).

7.	In s 33 appears the definition of “settled” for the purposes of the 1971 Act.  For those purposes “settled” is defined in accordance with subs (2A) in the following terms:
	
“Subject to section 8(5) above, references to a person being settled in the United Kingdom are references to his being ordinarily resident there without being subject under the immigration laws to any restriction on the period for which he may remain.”	

	We think that it is clear that a person to whom subs 8(5) does not apply, but to whom s 8(4)(a) does apply is a person who is “settled” within the meaning of s 33(2)(a) of the Immigration Act 1971.  He is not subject under the Immigration Acts to any restriction for which he may stay.

8.	
That, however, is not the end of the matter, because the provision in para 289A of the Immigration Rules is not a provision that is itself within the Immigration Act 1971, to which the definition to which we have referred applies.  For the purposes of the Immigration Rules the definition of “settled” is in para 6 and is as follows:

	“’settled in the United Kingdom’ means that the person concerned:
(a)	is free from any restriction on the period for which he may remain save that a person entitled to an exemption under Section 8 of the Immigration Act 1971 (otherwise than as a member of the home forces) is not to be regarded as settled in the United Kingdom except in so far as Section 8(5A) so provides; and
(b)	is either:
(i)	ordinarily resident in the United Kingdom without having entered or remained in breach of the immigration laws; or
(ii)	despite having entered or remained in breach of the immigration laws, has subsequently entered lawfully or has been granted leave to remain and is ordinarily a resident.”

9.	Again it is to be noted that members of the home forces are excepted from the exception and it follows, as in the 1971 Act so for the purposes of the Rules, the sponsor is, and has at all relevant times been settled in the United Kingdom because he is ordinarily resident here and free from any restriction on the period for which he may remain here: free, that is, from any restriction under the Immigration Acts or other provisions of immigration law. So far as concerns that issue therefore we are satisfied that the Immigration Judge erred in concluding that the sponsor was not settled in the United Kingdom.

10.	The second issue was raised by Mr. Gulvin before us today.  It was not specifically raised, so far as we understand the matter, either in the notice of refusal, although reference is made to it, or at the hearing before the Immigration Judge.  The issue is whether the appellant can be regarded as a person who was admitted for a period of two years.  As we have said, her last arrival was in January 2003 by virtue of a visa that was valid until 2006.  The effect of her visa was that on her last arrival in the United Kingdom she was to be treated as a person who had been granted before her arrival, leave beginning with her arrival and ending on the expiry of her visa, that is to say in 2006.  That is the effect of the relevant provisions of the Immigration (Leave to Enter and Remain) Order 2000 (SI 2000/1161).  She therefore had leave to enter for a period exceeding two years rather than a period of two years exactly.  

11.	
As we pointed out in the course of Mr. Gulvin’s submissions, a period of three years, or indeed of five years, includes a number of periods of two years.  There is no doubt in our mind that the reference to two years in para 289A is designed to exclude those have been admitted or given and extension of leave for a period of less than two years.  We find it very difficult to say that a person who is granted leave for a period longer than two years is to be regarded as excluded for that reason from the provisions of 289A, and we interpret the reference to periods of two years in that paragraph as meaning periods of at least two years.

12.	The third issue is that the appellant is required by para 289A(iv)to show that the relationship was caused “to permanently break down … as a result of domestic violence”.  The Immigration Judge heard evidence from the appellant, and her conclusion at para 36 of her determination was this:

	“By way only as observation and to cover the points raised by the representatives I find that the appellant has been a person subject to domestic violence.  I found her testimony regarding the same to be entirely credible and I found that the various correspondences referred to in the evidence, to be significant corroborative evidence of domestic violence.  As to whether the marriage has in fact broken down I got the sense from [the appellant’s] frank evidence that she is still very undecided about her relationship but thought that in the future there may be some chances of a reconciliation.  I did not get the impression from her evidence or statement that she wishes to see an end to her marriage at this stage.  This however is all very academic as I concluded that the IDIs on domestic violence and paragraph 289A of the Immigration Rules were not applicable to the appellant’s case and therefore the appeal could not succeed.”
	
13.	As pointed out in the hearing, the Immigration Judge’s view that the marriage had not, at the date of the hearing before her broken down, would have been sufficient in any event to cause the appeal to be dismissed in so far as it relied on the Immigration Rules. That finding is not challenged in the grounds for reconsideration.  In response to that difficulty Mr. Ukonu, who appears for the appellant before us, suggested that it was raised specifically in the grounds of appeal to the Tribunal.  Unfortunately that is not correct.  It was not raised in the grounds of appeal before the Tribunal.  On the contrary, the grounds of appeal to the Tribunal assert that “the appellant’s still married” to the sponsor and that “she is still a dependant” on him.  Those are citations from the manuscript grounds which are supplemented by typed grounds, but neither the manuscript nor the typed grounds refer to an allegation that the marriage has permanently broken down.  Mr. Ukonu then referred to the skeleton argument that he presented before the Immigration Judge, and referred in particular to a paragraph which reads as follows:

“The appellant contends that the principal issues for this tribunal to decide are:
	…
2	Whether on the weight of the evidence of incident’s of domestic violence the H/O ought to have exercised discretion differently?”

	We are entirely unpersuaded that that is a reference to a claim that the marriage has broken down permanently.

14.	Mr. Ukono also suggested to us that the Immigration Judge could not consistently find that a person was a victim of domestic violence and was still party to a marriage which had not broken down.  We regret to say that we are unable to accept that submission either.  It is an unfortunate fact that many victims of domestic violence persist in a violent relationship rather than allowing it to be treated as having broken down.  

15.	We therefore find no irrationality in the Immigration Judge’s conclusion; nor do we find that this issue was properly raised or dealt with in grounds of appeal.  In the circumstances we see no reason for interfering with the Immigration Judge’s conclusion on the evidence before her that the marriage had not broken down.  For those reasons that the error of law which we identify in the Immigration Judge’s treatment of the question whether the sponsor was, at the relevant time, settled in the United Kingdom is one which was not material to her determination.  Her determination dismissing the appeal must accordingly stand.

C M G OCKELTON
DEPUTY PRESIDENT
          Date: