Updates, commentary, training and advice on immigration and asylum law

Home Office standard human rights submissions


Older content is locked

A great deal of time and effort goes into producing the information on Free Movement, become a member of Free Movement to get unlimited access to all articles, and much, much more


By becoming a member of Free Movement, you not only support the hard-work that goes into maintaining the website, but get access to premium features;

  • Single login for personal use
  • FREE downloads of Free Movement ebooks
  • Access to all Free Movement blog content
  • Access to all our online training materials
  • Access to our busy forums
  • Downloadable CPD certificates

Home Office appeals against first instance judge decisions used to be very rare indeed. Some years ago, it apparently became standard practice to seek permission to appeal in some asylum allowed appeals and all or virtually all deportations cases. It now appears to be standard practice for the Home Office to seek permission to appeal against any appeal that is allowed on human rights grounds., or at lest on human rights grounds only.

The more or less standard grounds are as follows:

Ground one: Making a material misdirection of law

1. It is respectfully submitted that the Tribunal has erred in law in its approach to the Article 8 assessment in this case.

2. MF Nigeria [20131 EWCA Civ 1192 confirms that the Immigration Rules are a complete code that form the starting point for the decision-maker. Any Article 8 assessment should only be made after consideration under these Rules. That was not done in this case. It is submitted that the Tribunal erred in law by not having regard to the Rules and that the subsequent proportionality assessment is unsustainable because of this omission.

3. Furthermore, it was made clear in Gulshan [2013] UKUT 00640 (IAC) that the Article 8 assessment shall only be carried out when there are compelling circumstances not recognised by these Rules. In this case the Tribunal did not identify such compelling circumstances and its findings are therefore unsustainable.

4. Gulshan also makes clear that at this stage an appeal should only be allowed where there axe exceptional circumstances. Nagre [2013] EWHC 720 Admin endorsed the Secretary of State’s guidance on the meaning of exceptional circumstances, namely ones where refusal would lead to an unjustifiably harsh outcome. In this case the Tribunal has not followed this approach and thereby has erred.

5. It is respectfully submitted that the Tribunal has failed to provide adequate reasons why the appellant’s circumstances are either compelling or exceptional. It is submitted that there is no reason why the appellant’s husband cannot hire care whilst the appellant returns to [country] to make the appropriate entry clearance application to return. It is submitted that the appellant and her husband can continue to maintain contact with each other via modem methods of communication and visits whilst she does so as they have been able to do so over many years.

6. It is submitted that bad the Tribunal taken these issues into consideration they would have found that the decision to remove is proportionate.

7. Permission to appeal is respectfully sought so that a fresh decision can be made in. regards to the human rights decision.

coffee grounds

There is no ground two, incidentally. Permission is regularly granted.

It is irritating to see what is surely incorrect law being perpetuated. The idea that Gulshan creates some sort of legal threshold of compelling circumstances that must be passed before human rights can even be considered is obvious nonsense.

Observers of Home Office submissions may also be interested in the standard case law compilation relied on by some Presenting Officers. The inclusion of the ancient MG [2005] UKAIT 00113 case is a bit of a mystery as there has been an awful lot of legal water under the bridge since then. The only glaring omission that immediately springs to mind is the Supreme Court decision in Patel, which addresses precisely the interaction of the immigration rules and human rights grounds.

Relevant articles chosen for you
Picture of Colin Yeo

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.


5 Responses

  1. “A Daniel come to judgement”. I have heard the “nonsense” about Gulshan for so long and repeatedly that I was beginning to think that I am wrong!

    One would have hoped that at the UT there would be clarification but alas!

    Thanks for restoring sanity (partially).

    Ps. The above grounds now appear to be a mantra.

  2. Colin, maybe some Discount lectures for the UKBA case workers and Hopo would save the day!
    So much contravesy is still going on a couple of other ‘mysterious conceipts’ as well. No matter the enourmous Courts guidance on the recommended reading/ interpretations of ‘insurmountable obstacles to relocation’ as well as ‘exceptionality test’ for example, the UKBA’s caseworkers and Hopo alike wont get it, ,,,……and guess what?….they still get lucky with some I.J of the FTT……..where is the mesiah?

  3. What can we do about this? One approach, which is pre-emptive would be to effectively surrender (aka bullet proofing). Make sure the FTT are well aware that 1) the rules must be considered 2) the test in Gulshan must be met (if the FTT is going to allow the deal in Article 8 grounds then of course the test in Gulshan is met, it just needs to be stated explicitly) 3) there are exceptional circurmstances (because, e.g, HO decision breaches Section 55*) and refusal would lead to an unjustifiably harsh outcome. If the FTT puts all that in the judgement and allows the appeal then the HO grounds are toothless.

    Another approach which would be applied once the case is in the UT is to argue that it doesn’t matter the rules weren’t considered. Had the rules been considered, the FTT would still have had to consider the situation outside the rules, and would have come to the same conclusion, hence no effect on material outcome of decision. Likewise FTT must have been aware of both Gulshan and Nagre and would not have gone on to consider the situation outside the rules had it thought either case prohibited it….

    Or I guess you just straightforwardly say the HO has got Gulshan and Nagre wrong and quote the old Article 8 case law in support…

    *Certainly breaches of a statutory duty ought to be exceptional!

Or become a member of Free Movement today
Verified by MonsterInsights