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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Butler, R (on the application of) v Secretary Of State For Home Department [2001] EWCA Civ 1960 (13 December 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1960.html Cite as: [2001] EWCA Civ 1960

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(MR. JUSTICE BURTON)

		Royal Courts of Justice Strand London WC2 Thursday, 13th December 2001

Thursday, 13th December 2001

1. LORD JUSTICE POTTER: This is an application for leave to appeal against the decision of Burton J. on 1st August 2001 to dismiss the application of the claimant for permission to move for judicial review of a decision of the Secretary of State for the Home Department contained in a letter dated 26th July 2001, stating that Mrs. Butler did not qualify for the Domestic Violence Concession; nor would her removal from the United Kingdom breach Articles 8 and 3 of the European Convention on Human Rights.
2. In that letter, the Home Office gave detailed and comprehensive reasons for the Secretary of State's views that the applicant did not qualify for the concession, despite the fact that she had obtained a non-molestation order in June 2000 against her husband after the marriage had broken down and at a time when she was living apart from him. The couple had separated some six months earlier, on 15th December 1999. It had plainly been a stormy marriage, for reasons into which it is not necessary to go on this application. The husband had, before the breakdown, complained to the police that the applicant had assaulted him. But on 10th May 2000, when the charges were eventually tried, the applicant had been acquitted. She had not herself pursued any cross-summons alleging assault during the time when she was still living with the husband, and her chief concern at the time when she made her application for the non-molestation order was the conduct of the husband after she had left and, in particular, following her acquittal in May 2000, when he had sought to visit the place where she was living, had generally made a nuisance of himself and in particular had uttered verbal threats as to the future safety of herself and her child.
3. It is not necessary to go into the detail of the grounds upon which the Home Office refused leave. They related to the question of whether and how far the non-molestation order amounted to evidence (as to which the Secretary of State required to be satisfied) for the purpose of applying the Domestic Violence Concession.
4. There are essentially two levels upon which the application is sought to be conducted. The first relates to the findings and inferences of the Secretary of State in relation to the commission of violence against the applicant by her husband based on the documents that were before him, and in particular upon the witness statement of the applicant, following which the non-molestation order was granted. Because of the contents of her statement, it is argued for the applicant that the non-molestation order should be read as evidence of the existence of that violence before the break-up of the marriage ; or, even if it does not amount to that, the making of the non-molestation order is sufficient in the circumstances to qualify the applicant for the Domestic Violence Concession.
5. The point is not an easy one, but it is, in my view, arguable and deserving of leave. Nor would I seek to restrict the grounds upon which the matter is argued, bearing in mind the fall-back position proposed to be advanced on the part of the applicant. This amounts to an attack on the adequacy of the Domestic Violence Concession - or rather the criteria and/or level of proof on which the Secretary of State requires to be satisfied before being prepared to apply it. It is said that these matters amount to non-compliance with the European Convention on Human Rights.
6. That is a matter in relation to which Mr. Juss, who appears for the claimant, has made an unusual, somewhat apologetic, but nonetheless insistent, application that there be a woman judge involved whether on the hearing of the applicant's substantive application or any appeal, not so much on grounds of empathy with the claimant as on the ground that such a judge would be better able to empathise with the aims and/or rationale of the Domestic Violence Concession, and the adequacy or fairness of the criteria required to be satisfied by a claimant who seeks its protection.
7. As I have made clear to Mr. Juss, I consider that this case principally involves the examination of the contents of the Secretary of State's letter, the evidence relied upon and whether or not it is sufficient to satisfy the specified criteria. Similarly, in my view there is no reason to doubt the ability or willingness of a male judge to accept the submissions of Mr. Juss concerning the likeliness or willingness of a woman who may be suffering domestic violence to seek a remedy or make a complaint in the face of violence from her husband and/or threats from him as to what would happen if she left home, in a situation where she might thereby become vulnerable to deportation. Those do not seem to me matters which are peculiarly able to be understood by a woman judge. In those circumstances, I make no direction in the matter so far as the constitution of the court is concerned, even if I were able, or it would be proper for me to do so.
8. Nonetheless, as I have indicated, I do consider that this is a case where the applicant should have leave to challenge the decision of the Secretary of State. Rather than granting leave to appeal, I grant the applicant permission to apply for judicial review pursuant to CPR 52.15.3, in the light of the considerations noted in The White Book in relation to that rule.
ORDER: Application granted; legal aid granted. (ORDER NOT PART OF APPROVED JUDGMENT.)