The Court of Appeal has given its long-awaited decision in the case of MY (Pakistan) v Secretary of State for the Home Department [2021] EWCA Civ 1500. Unfortunately, it confirms that the Home Office can refuse to engage with a human rights claim for permission to stay in the UK which is not made using the specified form or process. That leaves the applicant with no right of appeal.

Background: human rights and appeals

MY applied for indefinite leave to remain as a victim of domestic abuse. The Home Office does not consider that such applications are inherently human rights claims. Human rights claims attract a right of appeal if refused; other immigration applications don’t. What this means is that people who apply for indefinite leave as victims of domestic abuse usually get only an administrative review if their application is refused.

What MY did in his application was to raise reasons why he would be unable to return to Pakistan, which amounted to a human rights claim. In refusing his application, the Home Office focused on whether or not he was really a victim of abuse, deciding that he was not. With regards to human rights, the refusal simply stated:

Any submissions you may have made relating to your Human Rights have not been considered, as an application for settlement as a victim of Domestic Violence is not considered to be a Human Rights based application. Therefore, if you wish to apply for leave to remain, based upon your Human Rights or other compassionate practice it is open to you to apply using an appropriate application form.

MY nevertheless lodged an appeal at the First-Tier Tribunal. He argued that, by refusing his application, which included a human rights claim, the Home Office refused a human rights claim. That would mean he had a statutory right of appeal.

The First-tier and Upper Tribunals both disagreed. MY appealed to the Court of Appeal.

Findings of the Court of Appeal

The Court of Appeal upheld the decision of the Upper Tribunal. Lord Justice Underhill helpfully summarised the issue of the appeal as:

Whether the Secretary of State is to be regarded for the purpose of section 82(1)(b) as having made a decision to refuse the Appellant’s human rights claim notwithstanding that she has purported to decide only his application for leave to remain as a victim of domestic violence.

The court found there is indeed a distinction between applications for permission to stay (aka leave to remain) and human rights claims. Some of the former necessarily include the latter: for example, applications on the basis of family or private life. Others, including applications on the basis of domestic abuse, do not. While it is possible for an applicant to raise a human rights claim in their application, that does not make the application itself a human rights claim.

The Home Office, in turn, is entitled to ask that human rights claims are made in a particular way, and to ignore those which do not follow that process. When refusing MY’s application for indefinite leave to remain, the Home Office simply did not engage with the separate human rights claim. As there was no engagement with the claim, there was no decision on the claim, and therefore no right of appeal.

Future challenge to one-application-at-a-time policy

A fundamental problem in such cases, which we highlighted last time around, is that people often face a harsh choice. They can apply for a better immigration status (in this case, indefinite leave to remain) but may be denied an appeal and become an overstayer if refused. Or they can submit a human rights claim, which comes with an appeal, but may be granted a lesser immigration status (such as 30 months of permission) if successful.

The reason one cannot have both is because of paragraph 34BB of the Immigration Rules. It states that you can only have one outstanding application for permission to stay at a time. Lord Underhill calls this the “one-application-at-a-time policy”.

To try both avenues, people have to submit an application for indefinite leave to remain first and, if refused, make a human rights claim afterwards. The problem is that, in the time between the first refusal and the human rights claim being accepted (if it is), the applicant has no permission to be in the UK and therefore no right to work, claim benefits, use the NHS etc.

Now, two further grounds advanced by MY in the appeal were that it is unlawful for the Home Office to decline to consider a human rights claim raised as part of an application for leave to remain; and/or that it was unlawful to require two separate application forms, one for human rights and one for an application under the Immigration Rules. This amounted to a challenge to the “one-application-at-a-time” policy.

Underhill LJ did not dismiss those arguments completely:

As to that, I confess to some concern about a situation where someone who has (let it be assumed) pursued an application on a ground which is reasonable but ultimately unsuccessful can only pursue a second application on a (let it be assumed) valid second ground at the cost of being subjected to the various restrictions itemised above – though I am not to be taken to be expressing any views about its lawfulness.

But he felt that such a challenge could not be decided in a statutory appeal like MY’s, and should be brought by way of judicial review. The judgment ends by saying that the Court of Appeal will consider taking up the challenge as a judicial review directly (by reconstituting itself as a Divisional Court). Even if it does not on this occasion, it is definitely a challenge that can be brought, and no doubt will be sooner or later.  

What happens in the meantime?

Sadly, migrants continue to have to make that harsh choice between applying for leave or making a human rights claim. Which to choose will be very much a case-specific decision, depending on the strength of the indefinite leave application, the applicant’s appetite for risk and what other options are open to them.

It also shouldn’t be forgotten that people can still raise human rights grounds in the course of a non-human rights application. The Home Office should then write to the applicant asking whether they want their application varied.

And, fingers crossed, it is only a matter of time before a court looks directly at the lawfulness of the “one-application-at-a-time” policy.