A Guide to Human Rights Claims in UK Immigration Applications
Applications for leave to enter or remain in the UK can be made, in certain circumstances, on the basis that to require the individual to leave the UK or to not allow them entry into the UK would be a breach of the individual’s human rights. In this post, we will consider what a human rights claim is, how human rights claims are determined and provide some examples of such claims.
Definition of an Immigration Human Rights Claim
The Nationality, Immigration and Asylum Act 2002 (“NIAA”) as amended by the Immigration Act 2014 (“IA”) is essential when it comes to understanding what an immigration human rights claim is. The NIAA at s.113 provides a definition of a human rights claim:
“human rights claim” means a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person or require him to leave the United Kingdom or to refuse him entry into the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998.”
The Human Rights Act 1998 (“HRA”) incorporates those rights arising from the European Convention on Human Rights (“ECHR”) into domestic law, allowing for our courts to adjudicate on cases where it is claimed human rights have been breached in this country first, instead of individuals having to bring their ECHR arguments to the European Court of Human Rights in Strasbourg for the first time. Section 6 of the HRA requires that all public authorities act in a manner that is compatible with the ECHR, that is, that does not breach those rights set out within the ECHR.
Who Determines What a Human Rights Claim Is?
The definition of human rights claim, as above, is provided by s.113 of the NIAA. The Tribunal has jurisdiction to consider whether a human rights claim has been refused. Part 5 of the NIAA provides provisions in relation to Appeals in respect of Protection and Human Rights Claims. This Part provides at section 82 that there is a right of appeal to the Tribunal (First-tier Tribunal, clarified at section 81 of the NIAA) where there is a :
- Refusal of a protection claim;
- Refusal of a human rights claim; or
- Decision to revoke an applicant’s protection status.
The Home Office (Secretary of State) implicitly considers whether an application is a human rights claim and whether a right of appeal exists against a refusal, however, it is ultimately up to the Tribunal to decide this question. Therefore, if an applicant makes an application which has been refused and of which they believe the refusal might engage their human rights the refusal is not always the end of the matter and it can be possible to appeal to the Tribunal who might decide that a human rights claim exists. It is important to note that not all immigration decisions will result in a right to appeal, with some decisions resulting in the possibility of having an administrative review where a caseworking error has been made and other decisions nothing at all once they have been refused.
Examples of Immigration Human Rights Claims
The Home Office Caseworker Guidance, Current Rights of Appeal, (“the Guidance”) sets out further details when it comes to considering whether a human rights claim has been made or made and refused. Please note, as above, that ultimately the jurisdiction lies with the Tribunal as to whether a human rights claim has been made or made and refused, however based on previous decisions there are certain routes which will result in the Home Office approaching an application within such a route as a human rights claim. It is important to also note that the Guidance is not completely accurate and, where possible, attempts have been made to correct any discrepancies in the information cited from this Guidance. As always, it is vital to seek expert immigration advice when considering making any immigration application and particularly human rights applications as these can be complex.
Page 10 of the Guidance provides the following list of relevant human rights applications. Applications made under [explanatory information in italics]:
- Paragraph 276B (Long Residence) [application for Indefinite Leave to Remain on the basis of having been in the UK for a period of at least 10 years];
- Paragraphs 276ADE(1) or 276ADE (private life) [Please note that these paragraphs have been deleted and replaced by Appendix Private Life, as noted in our blog post here];
- Paragraphs 276U and 276AA (partner or child of a member of HM Forces) [application for Indefinite Leave to Remain];
- Paragraphs 276AD and 276AG (partner or child of a member of HM Forces), where:
- the sponsor is a foreign or Commonwealth member of HM Forces and has at least 4 years’ reckonable service in HM Forces at the date of application
- [application for Leave to Enter or Leave to Remain];
- Part 8 of these Rules (family members) where:
- the sponsor is present and settled in the UK or has refugee or humanitarian protection in the UK, not paragraphs 319AA to 319J (points-based system (PBS) dependents), paragraphs 284, 287, 295D or 295G (sponsor granted settlement as a PBS Migrant);
- Part 11 (asylum);
- Part 4 or Part 7 of Appendix Armed Forces (partner or child of a member of HM Forces) where:
- the sponsor is a British Citizen or has at least 4 years’ reckonable service in HM Forces at the date of application
- Appendix FM (family members), not: section BPILR (bereavement) or section DVILR [BPILR refers to applications for indefinite leave to remain (settlement) as a bereaved partner and DVILR refers to applications for indefinite leave to remain (settlement) as a victim of domestic abuse. The Tribunal has decided that applications under the domestic violence route do not count as human rights claims];
The Guidance also provides information as to when human rights claims can be made outside of the Immigration Rules. It specifies which forms can be used, although please note that some of the forms have since been archived, for example, it specifies that form FLR(O) should be used when making an application for further leave to remain where there is no specific form available, however this has been archived and the forms to now use are FLR (HRO) and FLR (IR). It is important that an application is made on the correct form otherwise an application will be treated as invalid. The Guidance also proceeds to explain that just because one of the forms listed is used does not result in a human rights application having been made as the forms are also multipurpose. Ultimately, as above, the jurisdiction to decide whether a human rights claim has been made lies with the Tribunal.
How Do Home Office Caseworkers Decide Whether an Immigration Human Rights Claim Has Been Made?
The Guidance provides Home Office caseworkers with the following considerations when it comes to determining whether a human rights claim has been made:
- Does the application say that it is a human rights claim?
- Does the application raise issues that may amount to a human rights claim even though it does not expressly refer to human rights or a human rights claim?
- Are the matters raised capable of engaging human rights?
The above questions are useful for Home Office caseworkers to consider, to an extent, as forms will not necessarily ask applicants to indicate whether they are raising a human rights claim. It is important that the claim be “particularised”; that means that it should state the reasons as to why an applicant is seeking to enter or remain in the UK. It is important to note that the applicant might not identify these reasons as being based on their human rights but if the caseworker can see that they engage certain human rights then it could be looked at as a human rights application. The Guidance explains that it might not be enough for an application to simply have the following: “I am making a human rights claim” or “it is a breach of my rights under Article 8 not to grant me Indefinite Leave to Remain”. Arguably this might still be open to an appeal if refused and there are genuine reasons as to why the applicant had mentioned that they have a human rights claim or their Article 8 rights might be breached if not granted Indefinite Leave to Remain. The Guidance provides examples where a human rights claim might be made even if the words “human rights claim” or a Convention right is not identified by the Applicant. Please see the limitations as to this Guidance given the case MY Pakistan v Secretary of State for the Home Department [2021] EWCA Civ 1500 (“MY Pakistan”) which is discussed in the final paragraph of this blog post. One example, however, provided by the Guidance as to where a human rights claim might be made is found at page 12:
“For example, an applicant seeks leave to remain on medical grounds, to receive medical treatment or has a fear of return or of an undignified death because medical facilities in their home country are unavailable, unaffordable, inaccessible or of a lower standard than the UK. This should be considered as an Article 3 and Article 8 medical claim.”
The above is an example of a more particularised claim, which might lead a caseworker to consider that a human rights claim has been made. It is, of course, important for the caseworker to examine the merits of the claim, for example, to determine whether the human rights would indeed be breached if the individual were to be removed from the UK.
As stated above, the Guidance should be considered in light of the Court of Appeal’s decision in MY (Pakistan). The appeal involved an Appellant who had made an application for indefinite leave to remain in the UK on the grounds of domestic violence using the specified form SET(DV). This application was refused, the Appellant appealed on the basis that the Secretary of State had refused a human rights claim, as in his witness statement, he had raised issues which he argued related to Convention rights, one being that he would be at risk of being killed on return. The Secretary of State argued that she had not considered any human rights claim and had only considered his application for leave to remain as a victim of domestic violence. The Court held that applications for leave to remain were distinct from human rights claims, and although there are some cases where applications for leave to remain will inherently include a human rights claim, this is not always the case, and it is open to the Secretary of State to defer a decision on a human rights claim that appears to be raised in a leave to remain application until the Applicant submits an application raising their human rights using the necessary form. This would be in line with the Secretary of State’s one application at a time rule, as is highlighted by Paragraph 34BB of the Immigration Rules, which states that where an applicant has an outstanding application which has not been decided, any new application will be considered to be a variation of the previous application. It is therefore important to ensure that one uses the correct form if they are looking to raise a human rights claim, where it is not clear that a human rights claim is inherently part of any application they are making, for example, most of the Appendix FM applications are seen to raise human rights apart from Domestic Violence or Bereaved Partner. Please note that MY (Pakistan) was also covered in our blog post here.
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