In MY (Pakistan) v Secretary of State for the Home Department  EWCA Civ 1500 the Court of Appeal considered when an immigration “refusal decision” constitutes a “refusal of a human rights claim” for the purpose of the Immigration Act 2014.
Background in MY Pakistan
The Secretary of State had refused an application for Indefinite Leave to Remain (ILR) under Appendix FM as the victim of domestic violence, where the Appellant had raised a contention that his removal would be incompatible with his Convention rights. In her refusal, the Secretary of State did not consider whether there had been any potential breach of Convention rights because the Appellant should have raised this using a separate application and a different form. There was no engagement with the human rights claim in the refusal decision.
Why Does This Matter?
Following the Immigration Act 2014 amendments to appeal rights, making a human rights claim is determinative of appeal rights in many cases. The High Court case of R (AT) v SSHD  EWHC 2589 (Admin), concerned DVILR applications which include human rights claims, and in this case Mr Justice Kerr held that, while not all domestic violence claims are necessarily also human rights claims (§65), some are, and:
“It is obvious that in domestic violence claims the form to be used should include an option to assert that the claim is also a human rights claim…. I hope [SSHD] will be advised to treat a single application, whether on form SET(DV) or on form FLR(FP), as a valid application, even if it purports to be both a domestic violence claim and a human rights claim.” (§49)
In line with AT, applicants have made explicit Convention rights claims as part of DVILR applications. In MY (Pakistan), the Appellant had submitted a DVILR application and, in his witness statement, he stated that his mental health had suffered and that he risked being killed by his in-laws should he return to Pakistan. He relied on this as engaging Article 8 and Articles 2 or 3 ECHR. The Secretary of State was prepared to accept that the witness statement raised a human rights claim, and the UT proceeded on the basis that it was based on the risk of being killed on return.
The Appellant had used the SET(DV) form, which does not attract the right of appeal, the rationale being that in all other Appendix FM applications the relationship with a Family Member is continuing so a refusal and removal would potentially breach Article 8 rights, whereas in domestic violence applications the relationship has already broken down.
What Did The Court of Appeal Decide?
The Appellant advanced three grounds of appeal: Ground 1 concerned whether there had been a decision to refuse a human rights claim within the meaning of section 82 (1) (b) of the NIAA 2002, while the Appellant' grounds 2 and 3 concerned a challenge to the lawfulness of the Rules in so far as they provide for the Secretary of State to deal separately with an application for leave to remain under section DVILR and with any associated human rights claim.
The Court of Appeal did not consider Grounds 2 and 3 as the lawfulness of the Rules was not a suitable question for a statutory appeal.
In dismissing the appeal, the Court of Appeal held that:
“under the statutory scheme as structured an application for leave to remain and a “human rights claim” are conceptually different kinds of thing, serving different purposes. The former is the mechanism by which the Secretary of State may be required to grant leave to remain. The latter is a claim that (in short) the claimant's removal would be contrary to their Convention rights, the refusal of which will generate a right of appeal.” (§39)
The Court of Appeal quoted the definition of human rights claim:
“a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom or to refuse him entry into the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 …”.
and held that:
“It is important to bear in mind that the breach of Convention rights referred to consists in removing the claimant from the UK, or requiring them to leave. That point has recently been correctly recognised by the UT in R (Mujahid) v First-tier Tribunal  UKUT 85 (IAC), a decision of the President, Lane J, which was upheld by this Court ( EWCA Civ 4490); and in Yerokun v Secretary of State for the Home Department  UKUT 377 (IAC), a decision of the Vice-President, Mr Ockelton.”
Consequences For Applicants
The case makes clear that applicants must use the specified application form in immigration applications if they want to be sure of having appeal rights. The Secretary of State chooses how valid human rights applications are to be made, so it is a reminder that to make sure the Secretary of State considers a human rights claim it is necessary to do more than raise Convention rights in a witness statement.
The Court of Appeal did not consider the validity of human rights claims in detail, but acknowledged that the case could have negative practical implications. The Court held that where an application did not “necessarily involve” a human rights claim, “there is nothing illogical in the Secretary of State choosing to refuse the application but to defer a decision on the human rights claim” (§42).
In essence, the Secretary of State can ignore a human rights claim.
As such, applicants could find that they need to follow up a first (non-Convention rights) application with a second application because the Secretary of State did not refuse ‘a human rights claim' in refusing the first application, even when the relevant matters were raised.
There will be instances in which individuals have very difficult choices to make – apply for the most obvious (non-human rights) application, and if that is refused, raise Convention rights afterwards. This has enormous practical implications, as section 3C of the Immigration Act 1971 would not apply to the second application (assuming the applicant did not have extant leave at the time of refusal decision).
Where section 3C does not apply, while an application is pending, individuals are overstayers: the ‘hostile environment' criminalises being in the UK without leave, and makes it virtually impossible to live – with no right to rent, without a bank account and without a driving licence. Given Home Office processing of human rights applications takes months (or years), the difficulties individuals face through not having leave while an application is pending should not be underestimated.
Applicants must consider, and are advised to seek advice on, the merits of any initial application which would not attract the right of appeal, and be aware of the consequences of having to submit a second application following the end of leave extended by section 3C.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.