Home Office failed to consider human rights claim before making deportation decision

The Upper Tribunal has held that a Home Office interview, which took place in prison and in which the applicant provided answers demonstrating that she wanted to remain in the UK based on her private and family life, amounted to a human rights claim. The tribunal separately held that the applicant had been granted indefinite leave to remain in 1993 and the lack of evidence in the Home Office’s files regarding this was more likely to be because of record keeping errors. It had been accepted by the Home Secretary that the applicant should have been granted indefinite leave. The case is R (SG) v Secretary of State for the Home Department JR-2025-LON-000242.

Background

SG is a Jamaican national who arrived in the UK aged 2 and who is a victim of sexual abuse and modern slavery. She has a history of offending and her most recent sentence was five years’ imprisonment, which led to the Home Secretary commencing deportation proceedings against her. On 11 October 2023 SG was interviewed in prison and asked why she should not be deported.

An “Immigration Prison Team Induction Interview” was carried out by an immigration officer. In response to questions, the applicant explained that she did not wish to return to Jamaica, that she had lived in the UK since she was three years old, and that she had children and other family in the UK. In response to question 6.1.2 whether she would be willing to provide further information about this, she said “yes, at later stage”.

The Home Secretary then notified SG of the decision to make a deportation order and the deportation order itself, both dated 21 February 2024. On 28 October 2024 the First-tier Tribunal declined jurisdiction for an appeal on the grounds that there was no human rights claim.

The judicial review

A judicial review was brought against the Home Secretary in respect of the two decisions. The judicial review was also brought against the First-tier Tribunal in relation to its decision.

The applicant submitted that the interview in prison amounted to a human rights claim as defined at section 113 of the Nationality, Immigration & Asylum Act 2002. It was argued on behalf of the Home Secretary that the answers given in the interview were provisional only and that these could be disregarded before finalised.

The tribunal described this as:

20… not a sustainable interpretation of question 6.1.2, which simply asks in the conditional tense if SG would be willing to provide more information. If this were an instruction that she must provide any further necessary information or what she has just said may be disregarded, it would say so, as well as provide a means and deadline by which this should be done. Nor is that point supported by SG’s subsequent lack of response to the stage 1 decision, as that contains the following after a request for further information:

If you inform us of any reasons why you should not be deported from the United Kingdom, or if you have already made representations which have not been considered in this decision, further consideration will be given to your circumstances and we will advise you of whether or not your deportation will be pursued.

21. This would suggest to any reader that reasons already given but not mentioned in the letter would be considered in a future decision. SG had communicated them to an Immigration Officer in response to a direct question and watched them be written down on the interview record.

With reference to R (Alighanbari) v Secretary of State for the Home Department [2013] EWHC 1818 (Admin), the tribunal agreed with the applicant’s submission that the minimum elements of a human rights claim were met. Namely that there was “(a) a claim not to be removed from the UK; (b) an assertion of facts that could constitute an existing or prospective private and/or family life, the interference with which Article 8 ECHR protects; (c) an assertion that removal will interfere with that private and/or family life (i.e. that the, or a, basis upon which the claimant wishes to remain in the UK is the desire to maintain or build a private and/or family life).” 

In relation to the requirement for an application to be made in a prescribed form, the tribunal noted that:

Para GEN.1.9 of Appendix FM disapplies the requirement in a number of circumstances, the only one of potential relevance being:

(a) the requirement to make a valid application will not apply when the Article 8 claim is raised:

[…]

(ii) where a migrant is in immigration detention. A migrant in immigration detention or their representative must submit any application or claim raising Article 8 to a prison officer, a prisoner custody officer, a detainee custody officer or a member of Home Office staff at the migrant’s place of detention;

It was noted by the tribunal that the similar provision in Appendix Private Life refers only to “detention”, which it was argued on behalf of the applicant means that any form of detention will count. The tribunal concluded that the words must be taken as written and:

I hold that a serving prisoner is bound by the validity requirements in Appendix FM to use the correct form, pay a fee and so on, but not by those in Appendix Private Life. If that interpretation is unsatisfactory to the Secretary of State, it is a matter for her whether to amend the rules. Certainly the situation of serving prisoners, and perhaps those in other forms of detention, could usefully be clarified.

This meant that the applicant was considered to have made a valid application under Appendix Private Life (as she was in prison and not immigration detention).

The tribunal also referred to Part 13 of the immigration rules which provides that: 

Where deportation is being considered and the person has made a claim under Article 8 of the Human Rights Convention, that claim will be considered in line with the provisions under this Part.

This potentially provided another basis for consideration of SG’s human rights claim, however the point was not argued and so the tribunal did not address it further.

The Home Secretary’s guidance states that where there is a human rights claim outstanding when the stage 1 deportation decision is made, this will be considered when making the stage 2 decision. As it was held that as a human rights claim had been made under Appendix Private Life, the stage 2 decision was “inherently” a refusal of that claim, in line with the guidance. 

In the alternative, the tribunal accepted the applicant’s argument that the decision had engaged with and refused the claim. The stage 2 decision also mentioned that consideration had been given to “all that is known about [SG’s] circumstances”. In addition to the prison interview, SG’s Home Office file contained other information relating to her family and private life claims, including a response to a secrion 120 notice. There was also an internal Home Office email on file asking for the case to be marked as an article 8 claim.

The First-tier Tribunal’s decision was quashed and the matter remitted to there for a decision in line with the Upper Tribunal’s findings.

On 27 March 2025 the Home Office made a decision to refuse SG’s human rights claim, which came with the right to appeal. The Home Secretary had argued that this judicial review was academic as a result. However the applicant also argued that she held indefinite leave to remain.

This was because on 11 December 1993 the applicant’s mother had been granted indefinite leave to remain. SG was a dependent on that application. The Home Secretary accepted that SG should have been granted, however the grant was not in the Home Office’s records and therefore it had never been made. SG argued that the grant had been made but just not recorded.

After weighing up the parties’ submissions, the tribunal concluded that:

No explanation has been forthcoming as to how the errors could have occurred by reference to SG in particular or Home Office decision-making overall, nor the prevalence of such errors at the time. I am therefore left to assess inherent probability by applying common sense and this Tribunal’s specialist experience and expertise. Doing so, I consider the more likely scenario to be that ILR was granted only for something to go wrong with the Home Office’s record keeping. 

SG’s indefinite leave to remain will therefore continue until the conclusion of her deportation appeal.

Conclusion

It is obviously of huge concern that the Home Office has tried to ignore a detained person’s clear article 8 rights claim in this manner, where SG would have every expectation, from having told the Home Office why she should not be deported, that her claim would be considered, as indicated.

As this is a deportation case we can expect that the Home Secretary will seek permission to appeal to the Court of Appeal.