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Evidence had come to light that ETS tests in the case of these two men may have been taken by a proxy. Therefore their leave to remain in the UK was curtailed. The Court of Appeal agreed with the Home Office, quashing the decisions of the Upper Tribunal, which alongside the First-Tier Tribunal had accepted the two men’s arguments on the facts and law on appeal from the decision.
The main point of law concerns section 92(4)(a) of the 2002 Act, and whether an appeal to a curtailment of leave which contains a human rights claim provides an in-country right of appeal in accordance with that section of the Act. The answer is no.
31. Section 92(4)(a) of the 2002 Act provides for an in-country right of appeal where a person “has made an asylum, or a human rights claim, while in the United Kingdom”.
Here is the conclusion of the Lord Justice Beatson:
41. For these reasons, if my Ladies agree, the Secretary of State’s appeal in Mr Shehzad’s case will be allowed on the ground that the tribunal had no jurisdiction because the duty judge and the First-tier Tribunal judge erred in concluding that Mr Shehzad had an in-country right of appeal by reason of section 92(4) of the 2002 Act because he had made a human rights claim. His human rights claim was not made until he formulated his grounds of appeal against the decision, and section 92(4) does not, in those circumstances, provide a person with an in-country right of appeal.
Paul Erdunast is a barrister at Temple Garden Chambers in London (https://tgchambers.com/member-profile/paul-erdunast/). Prior to this he was Legal and Parliamentary Officer at ILPA, where he delivered immigration law training and spoke at conferences. In previous jobs he lectured on asylum law and provided EU migrants with immigration advice.
