Nearly three years after the main appeal provisions of the Immigration Act 2014 commenced, the Upper Tribunal has turned its attention to the question lying at the heart of almost all appeals lodged since then: what is a human rights appeal anyway?

There are two new cases which more or less confirm we’ve all been on the right track all along. Luckily.

Immigration Act 2014 and human rights appeals

The Immigration Act 2014 introduced a new system of “immigration” appeals. Apparently so that a government press release could be issued stating that the grounds of appeal were being reduced from 17 to four, the old, clear system of appeals was replaced with a new, mysterious one. Previously, where a decision was not in accordance with the law or rules, a judge could say so and allow an appeal. Not so, or at least not obviously so, under the new system.

The Immigration Act 2014 amended the appeals provisions of the Nationality, Immigration and Asylum Act 2002. This isn’t the place for another full exposition of how the new sections 82 and 84 of the NIAA 2002 operate: you can get that from our course if you need it.

The heavily abridged version is that section 82 sets out the rights of appeal:

(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…

Section 84 then sets out the potential grounds of appeal, including this provision on human rights appeals:

(2) An appeal under section 82(1)(b) (refusal of human rights claim) must be brought on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998.

So, we can say for there to be a human rights appeal:

1. There must be a human rights claim; and
2. That human rights claim must be refused; and
3. An appeal can only be brought on the basis that the refusal breaches the person’s human rights.

Say a person applies to remain in the UK as a spouse. Is that a human rights claim? What if the application did not mention human rights? If the application is rejected on the basis that the relationship is a sham or the financial requirements are not met, can an appeal be brought on the grounds that the decision is unlawful under section 6 of the Human Rights Act 1998? So far, for nearly three years, the tribunal has more or less managed to avoid answering these questions.

What is a human rights claim?

There is still an awful lot that needs unpicking about what is or isn’t a human rights claim, but in Baihinga (r. 22; human rights appeal: requirements) [2018] UKUT 90 (IAC) the tribunal has made a decent if flawed start. In the modern age of litigants in person and in a jurisdiction where one of the parties tells the other party whether there is a right of appeal or not, there is a need for crystal clear and simple guidance from the tribunal on these admittedly very complex issues. We do not really get that type of clarity here, unfortunately.

The appellant in this case previously held indefinite leave to remain (ILR) in the UK but it lapsed when she stayed outside the country for more than two years. She applied for a visa to return to the UK under the “returning resident” rule (we covered this previously here: The case of Irene Clennell and the rules on returning residents with ILR). She did not explicitly mention any human rights claim.

The application was refused by an Entry Clearance Officer. The appellant attempted to appeal and sent in a notice of appeal to the tribunal. She also travelled to the UK and entered with temporary admission.

The notice of appeal was accepted by the tribunal and a hearing was listed. However, the tribunal decided that the appellant had not mentioned human rights and had therefore not made a human rights claim. On this basis, the appeal was declared invalid.

The appellant attempted to appeal this decision but Acting Resident Judge Appleyard (as he then was) refused permission on the basis that, because there was no valid appeal, permission could not be granted. The only available remedy was said to be an application for judicial review.

A further application for permission to appeal directly to the Upper Tribunal was ultimately successful.

Determinations on invalidity can be appealed

The Upper Tribunal begins by making clear that Judge Appleyard had been wrong to hold that a determination finding the appeal invalid could not be appealed. This should have been clear from Court of Appeal authority including JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78 as well as tribunal authority such as Abiyat & others (Rights of appeal) [2011] UKUT 314 (IAC).

The short version is that where the tribunal declares an appeal invalid by way of an initial rule 22 invalidity notice, then there is no right of appeal against that. An application for judicial review would be needed. If the tribunal looks at validity and issues a determination, though, there is a right of appeal against that.

Human rights claims can be bare and explicit

The Home Office thinks it is not enough for a person to state “this is a human rights claim” in order for their application to be a “human rights claim” within the meaning of section 82. On this Home Office analysis, even an application headed “Human Rights Claim” would not always be a human rights claim if “nothing more is provided than a bare statement of this sort”.

The tribunal signals disagreement without having to decide the point in the case:

A “bare” or “unsubstantiated” claim is, however, very arguably, still a claim. In such a situation, the appropriate course may be to certify under section 94 of the 2002 Act, on the basis that the claim is clearly unfounded.

The tribunal’s preferred approach would at least offer more certainty. One of the biggest problems with the appeal regime introduced by the Immigration Act 2014 is that it is not clear whether there is a right of appeal in the first place. This can cause a person to lodge an appeal only to find out many months and many legal expenses later that there was no valid appeal.

Human rights claims can be implicit

On the facts of the case, no explicit human rights claim was made but there were elements of the case that potentially raised human rights type arguments around private and family life. Was this a human rights claim?

In an earlier case, R (On the Application Of AT) v Secretary of State for the Home Department [2017] EWHC 2589 (Admin), Mr Justice Kerr had accepted the concept of implicit human rights claims (Free Movement write up: Domestic violence cases can attract a right of appeal, says High Court). No reference was made by the Upper Tribunal to this earlier decision, however.

The Home Office guidance accepts that applications under most paragraphs of Appendix FM constitute human rights claims and the words “human rights claim” do not need to be used on an application for it to actually be a human rights claim. The Home Office official presenting the case had argued there was no human rights claim in this case and therefore no right of appeal. The First-tier Tribunal agreed. The Upper Tribunal disagrees and finds that there was a human rights claim.

The tribunal re-states the test in the Home Office guidance and states there would be a human rights claim and therefore a right of appeal:

if it appeared from the totality of the information supplied that the appellant was advancing a case which, on the facts, properly required the caseworker to consider whether a discretionary decision to be made under the relevant immigration rule or rules needed to be taken by reference to Article 8 issues, or to look beyond the provisions of the immigration rules and decide, if those rules were not satisfied, whether an Article 8 case was nevertheless also being advanced

On the facts of the case, the Upper Tribunal found that a human rights claim had indeed been made:

29. As we have seen, the appellant was putting forward, as reasons for wishing to return, (a) that she had gone to Sierra Leone in 2004 to look after her grandmother; (b) that her grandmother had died, with the result that the appellant was left without any element of family in Sierra Leone; (c) that she was lonely without her relatives in the United Kingdom; and (d) that she wished to rejoin her father and sister in the United Kingdom.

30. The letter from the appellant’s father asserted (a) that the appellant, despite her qualification as an electrician, had been unable to obtain a permanent job in Sierra Leone; (b) that she was being supported by the father; (c) that she had no close relatives in Sierra Leone to give her emotional support; and (d) that it would be easier to support the appellant if she were living with the family in the United Kingdom.

31. Having regard to the guidance, which in this respect we consider properly accords with the meaning and scope of section 113 of the 2002 Act, the appellant’s application was, we find, a human rights claim.

So, a human rights claim is made where the facts of the case disclose a human rights claim, whether or not the words “human rights claim” are used and whether or not the application is made under the “human rights claim-y” paragraphs of the Immigration Rules.

This may be tolerably clear to informed lawyers. It will be as clear as muck to litigants in person, who will depend on the Home Office to tell them in the notice of refusal whether there is a right of appeal or not. And the Home Office cannot be trusted to get that right, as this case shows.

Rights of appeal in immigration cases are a shambles.

What is a refusal of a human rights claim?

Imagine a scenario where an implicit human rights claim is made in an application which the tribunal later adjudicates did on the facts raise human rights issues. Perhaps unsurprisingly given that human rights were not mentioned in the application, the application was refused without any reference to human rights. There was a human rights claim, but has there been a refusal of a human rights claim such as would generate a right of appeal?

The answer is probably “yes”, although the tribunal is not crystal clear about that.

In this particular case, the Entry Clearance Officer did not mention human rights at all but the Entry Clearance Manager did explicitly consider human rights and refuse on that basis. The decision which may or may not be appealable is that of the ECO but the tribunal comments that the ECM review may “be seen as casting light on what the entry clearance officer had been doing when she refused the appellant’s application”.

It would be far simpler just to accept that if a human rights claim is made in an application, implicitly or explicitly, and the application is refused, then this is a refusal of a human rights claim.

What is a human rights ground of appeal?

The second case, Charles (human rights appeal: scope) [2018] UKUT 89 (IAC), arose from an appeal being allowed by an immigration judge on the basis that a deportation decision was “not in accordance with the law”. This is not one of the grounds that is available in the immigration appeals regime introduced by the Immigration Act 2014.

As an aside, the facts were interesting: the appellant resisted deportation on the basis of the exemption from deportation for long-term resident Commonwealth citizens at section 7 of the Immigration Act 1971. If the appellant could prove he had entered the UK before 1 January 1973, he was exempt from deportation and the appeal would be allowed. The First-tier judge accepted that the appellant had arrived before 1 January 1971 and the Home Office did not challenge this finding.

Under the old appeal regime it was clear that the tribunal had jurisdiction and how that jurisdiction could be exercised. How would such a case be handled, if at all, under the new regime?

The Five Steps of Razgar

In short, the case has to be analysed from a human rights perspective, asking whether the decision would breach the person’s human rights in some way. Or, as the tribunal puts it:

46. The correct approach to adopt in a human rights appeal under section 82(1)(b) is as follows. As section 84(2) makes clear, and as is reflected in the present notice of decision, served in compliance with the Immigration (Notices) Regulations 2003, the decision being appealed is the decision to refuse the claimant’s human rights claim. Section 84(2) provides that the only ground upon which that decision can be challenged is that “the decision is unlawful under section 6 of the Human Rights Act 1998”. Section 6(1) of the 1998 Act provides that it “is unlawful for a public authority to act in a way which is incompatible with the Convention rights”.

47. The definition of “human rights claim” in section 113(1) of the 2002 Act involves the making of a claim by a person that to remove him or her from or to require him or her to leave the United Kingdom would be unlawful under section 6.

48. The task, therefore, for the Tribunal, in a human rights appeal is to decide whether such removal or requirement would violate any of the provisions of the ECHR. In many such cases, including the present, the issue is whether the hypothetical removal or requirement to leave would be contrary to Article 8 (private and family life).

The task of the tribunal is to apply the five-step approach set out by Lord Bingham in the House of Lords case of Razgar [2004] UKHL 27:

(1) Will the proposed removal be an interference by a public authority with the exercise of the applicant’s right to respect for his private or (as the case may be) family life?

(2) If so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8?

(3) If so, is such interference in accordance with the law?

(4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom of others?

(5) If so, is such interference proportionate to the legitimate public end sought to be achieved?

The tribunal held that the facts of the case (continuous residence in the UK since before 1973) “manifestly” engaged Article 8 (questions 1 and 2). On whether the interference was in accordance with the law, this is really asking whether the interference:

has a proper basis in domestic law, including whether that law is accessible to the person concerned and foreseeable as to its effects (see eg AB v Her Majesty’s Advocate [2017] UKSC 25)

The answer to this was “yes” given that the deportation was effected by the Immigration Act 1971 in combination with the UK Borders Act 2007. Ultimately, then, the question was really whether the decision was proportionate.

It’s all about proportionality

Relying for support on the Court of Appeal decision in Ahsan [2017] EWCA Civ 2009, the tribunal concludes that, given the factual findings, the decision was not a proportionate interference:

Since, on the facts found, any hypothetical attempt by the Secretary of State to deport the claimant would be unlawful, that hypothetical action on the part of the Secretary of State would, quite obviously, represent a disproportionate interference with the Article 8 rights of the claimant.

With respect, it isn’t as axiomatic as all that. It might have been helpful for the tribunal to spell out the “quite obvious” reasoning a bit more clearly. The lengthy quotations from Ahsan hinder rather than tinder enlightenment. Was it “quite obviously” disproportionate because the private life paragraphs of the Immigration Rules were met? The Home Office has argued in numerous cases that the private life provisions of the rules determine whether a human rights appeal succeeds or fails.

The central point is surely this: the argument that the rules almost always determine the outcome of a human rights appeal, other than in exceptional circumstances, has a mirror image. When a person does not meet the rules he or she will normally fail; but where he or she does meet the rules he or she should surely normally succeed.

This is, happily, the approach that lawyers and judges have been broadly following since the appeals provisions of the Immigration Act 2014 came into effect. Some retrospective backing for this approach is very much to be welcomed.

Official headnotes

Finally, I leave you with the official headnotes:

Baihinga (r. 22; human rights appeal: requirements) [2018] UKUT 90 (IAC)

1. The scope for issuing a notice under rule 22 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (circumstances in which the Tribunal may not accept a notice of appeal) is limited. A rule 22 notice may be issued at the stage where the First-tier Tribunal scrutinises a notice of appeal as soon as practicable after it has been given. Where no rule 22 notice is issued at that stage and the matter proceeds to a hearing, the resulting decision of the First-tier Tribunal may be challenged on appeal to the Upper Tribunal, rather than by judicial review (JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78; Practice Statement 3).

2. An application for leave or entry clearance may constitute a human rights claim, even if the applicant does not, in terms, raise human rights. In cases not covered by the respondent’s guidance (whereby certain applications under the immigration rules will be treated as human rights claims), the application will constitute a human rights claim if, on the totality of the information supplied, the applicant is advancing a case which requires the caseworker to consider whether a discretionary decision under the rules needs to be taken by reference to ECHR issues (eg Article 8) or requires the caseworker to look beyond the rules and decide, if they are not satisfied, whether an Article 8 case is nevertheless being advanced.

3. The issue of whether a human rights claim has been refused must be judged by reference to the decision said to constitute the refusal. An entry clearance manager’s decision, in response to a notice of appeal, cannot, for this purpose, be part of the decision of the entry clearance officer.

4. A person who has not made an application which constitutes a human rights claim cannot re-characterise that application by raising human rights issues in her grounds of appeal to the First-tier Tribunal.

Charles (human rights appeal: scope) [2018] UKUT 89 (IAC)

(i) A human rights appeal under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002 (“NIAA 2002”) can be determined only through the provisions of the ECHR; usually Article 8.

(ii) A person whose human rights claim turns on Article 8 will not be able to advance any criticism of the Secretary of State’s decision making under the Immigration Acts, including the immigration rules, unless the circumstances engage Article 8(2).

(iii) Following the amendments to ss.82, 85 and 86 of NIAA 2002 by the Immigration Act 2014, it is no longer possible for the Tribunal to allow an appeal on the ground that a decision is not in accordance with the law. To this extent, Greenwood No. 2 (para 398 considered) [2015] UKUT 629 (IAC) should no longer be followed.