The case of MY (refusal of human rights claim) Pakistan [2020] UKUT 89 (IAC) represents yet another cutback in the rights of migrant victims of domestic abuse, and in appeal rights more generally. The Upper Tribunal has ruled that the Home Office can simply refuse to engage with a human rights claim which is not made in the particular way the department wants it made.

When refusing to engage with a human rights claim submitted in the “wrong” format, the Home Office is not refusing that claim, and therefore there is no right of appeal. Some migrants will have to make very difficult decisions as a result.

Who has a right of appeal?

Before diving into the case and its consequences, a quick recap on section 82 of the Immigration Act 2014. Pursuant to that section:

(1) A person (“P”) may appeal to the Tribunal where—

(a) the Secretary of State has decided to refuse a protection claim made by P,
(b) the Secretary of State has decided to refuse a human rights claim made by P, or
(c) the Secretary of State has decided to revoke P’s protection status

It is also worth reiterating that the Home Office does not consider an application for leave to remain on the basis of domestic abuse to be a human rights claim.

The case of MY

MY is a Pakistani national. He applied for indefinite leave to remain as a victim of domestic abuse, using form SET(DV).

In his application, MY mentioned his inability to return to Pakistan, which amounted to a human rights claim. The Home Office accepts that he did raise this issue.

But officials refused MY’s application on the ground that they were not satisfied his relationship broke down as a result of domestic abuse. They also stated that:

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. Please see our website for further details.

MY nevertheless lodged an appeal at the First-Tier Tribunal, arguing the refusal of his application did amount to the refusal of a human rights claim. The duty judge accepted the appeal for consideration.

The judge who heard the actual appeal found that the First-Tier Tribunal did not have jurisdiction to hear the case, stating that

If the Secretary of State explicitly declines to treat the application as constituting a human rights claim, then the remedy is to seek Judicial Review. It is not for a First-tier Tribunal judge in such circumstances to exercise that function by calling for and scrutinising the application and/or accompanying representations to decide whether the Secretary of State ought to have treated them as a human rights claim.

MY challenged that decision at the Upper Tribunal.

Ignoring human rights claims not made in the specified manner

Mr Justice Lane, President of the Upper Tribunal, agreed with the First-Tier Tribunal. He found that the Secretary of State is

… legally entitled to adopt the position that she may require human rights claims to be made in a particular way, if they are to be substantively considered by her so that, if refused, there will be a right of appeal (paragraph 81).

In other words, if an immigration application does not rely on a route that the Home Office considers to be a human rights route — for example, on the basis of private life using form FLR(FP) — then the decision-maker does not have to engage with the human rights element of the application, and that will not attract a right of appeal.

In theory, the Home Office should write to an applicant who has raised a human rights claim in a non-human rights application, explaining that they have raised issues which cannot be considered as part of their application and asking that the applicant make a variation application if they wish those issues to be considered. This is confirmed in the Home Office guidance on validation, variation and withdrawal of applications for leave to remain. It was not done in this case. In my experience it is very rarely, if ever, done.

Previous cases on this issue

Readers familiar with the case of R (AT) v Secretary of State for the Home Department [2017] EWHC 2589 (Admin) will wonder how the Upper Tribunal could reach this conclusion.

In AT, the High Court found that an application for indefinite leave to remain on the basis of domestic violence can be a human rights claim, and attract a right of appeal. The court also ruled that the Home Office could not compel a person to make two separate applications and instead asked that the Home Office change its SET(DV) form to allow an applicant to raise human rights matters in an application for indefinite leave to remain (for the record, the Home Office never acted on this and it is now likely to never happen).

The Upper Tribunal dismissed these findings as “obiter”.

The tribunal also distinguished the case of Balajigari v Secretary of State for the Home Department [2019] EWCA Civ 673. That case was about Tier 1 migrants applying for indefinite leave to remain on that route (that is, not a human rights route). In that case, the Court of Appeal accepted that such applicants could raise human rights matters to their applications such that “the refusal of the application will constitute a refusal of that claim and can be appealed as such” (paragraph 99).

The Upper Tribunal said that the Court of Appeal in Balajigari was envisaging a refusal by the Home Office which would have referenced both the Tier 1 rules and the human rights claim. In other words, there is nothing preventing someone from raising human rights claim, but the Home Office can simply choose to ignore it. If the decision-maker does engage with the claim, and refuses it, then that will attract a right of appeal.

Finally, the tribunal found that, if the Home Office’s reason for not considering a human rights claim is erroneous, the way to challenge it is by judicial review rather than appealing to the First-Tier Tribunal.

Where does this leave us?

I find this judgment extremely problematic. It puts migrants (and their advisors) in a very difficult position.

You would usually want to apply for the best possible immigration status. If you believe you are eligible for indefinite leave to remain, you would want to pursue that option.

At the same time, you would want to preserve rights of appeal, and be able to present the case to an independent judge. This is particularly important for victims of domestic abuse, who may be refused leave on the grounds that they do not have sufficient “objective” evidence, and whose only way of winning their case may be to convince a judge that their story is true by giving evidence in person.

That is why human rights claims are often bolted on to what the Home Office considers non-human rights immigration applications.

It seems that what the Home Office and the Upper Tribunal want people to do is to apply for, in this case, indefinite leave to remain on the basis of domestic abuse and, if refused, make a second application on the basis of human rights. This is not only expensive, but also asks applicants to make themselves overstayers, with all of the related consequences (not being able to work, not being able to access the NHS, not being able to rent etc).

This cannot be right. Indeed, in the case of JM (Liberia) v SSHD [2006] EWCA Civ 1402, the Court of Appeal found that

It seems to me to be wrong in principle that the price of getting before an independent tribunal, for a judicial decision on a human rights claim should be the commission of a criminal offence and other associated legal prohibitions (paragraph 18).

But we are where we are. What now?

It continues to be open to someone to raise human rights grounds in the course of a non-human rights application. As mentioned above, the Home Office should then write to the applicant asking whether they want their application varied instead. One would hope that they would only ask the applicant to do so if they believe the applicant could not succeed in the main application, but that may be wishful thinking. One may also be lucky enough that the Home Office, in the refusal letter, deals with the human rights claim, attracting a right of appeal. Again, probably wishful thinking…

As always, the Home Office seems to hold all of the cards, while applicants are left with only the hope that they will be treated with compassion and common sense.

I understand that MY and his legal team have applied for permission to appeal. We can only hope the decision will eventually be overturned.