In essence, this decision supports the current Home Office policy of a ‘one-at-a-time’ application process. This policy is prescribed by paragraph 34BB of the Immigration Rules, which states that you can only have one outstanding application for permission to stay at a time. Submitting a human rights claim whilst a leave to remain application is pending/at the same time as a leave to remain will result in varying the application or the Home Office asking you to choose one. By doing this the Home Office forces applicants to choose to submit an application under the Rules first and, if refused, make a human rights claim afterwards.
For example: an applicant applies to extend their stay as a Tier 1 (Investor) migrant, alongside making a human rights claim, only for the Home Office to ask the applicant to elect which application to proceed with.
It is worth noting at the outset that human rights claims attract a right of appeal if refused by the Secretary of State for the Home Department (“SSHD”); whereas other immigration applications do not. Section 82(1)(b) of the Immigration Act 2014 states that appeals may be made to the First-tier Tribunal against leave to remain refusals if ‘the Secretary of State has decided to refuse a human rights claim’. A right of appeal to the Tribunal is a significant protective factor in challenging a decision, and much more beneficial than those without a right of appeal who then only have an internal Home Office Administrative Review, and Judicial Review (the efficacy of which we discuss below).
The MY (Pakistan) Case
In MY (Pakistan) the Appellant made an application for Indefinite Leave to Remain (“ILR”) as a victim of domestic violence. The Home Office does not consider that such applications are inherently human rights claims and therefore they do not attract a right of appeal.
While documents the Appellant submitted indicated that his removal from the UK may be incompatible with his Convention rights (Human Rights), he did not articulate this argument on the specific human rights claim form required by the Home Office. Consequently the SSHD in its refusal declared that no human rights claim had been considered, thus depriving the Appellant of a right to appeal.
Due to the decision of the SSHD the First-tier Tribunal refused jurisdiction to hear any appeal in respect of the refusal. This was on the basis that the SSHD had concluded the decision was made without consideration of a human rights claim. The Upper Tribunal upheld that decision.
In its ruling, the Court of Appeal agreed with the Upper Tribunal. It concluded that on the basis and format of the submitted application, the SSHD was not required to and did not make any decision regarding a human rights claim. Sonali Naik QC is now representing the appellant in an appeal to the Supreme Court.
Implications
The Court held that the Home Office is entitled to request that human rights claims be made in a particular way, such as on a prescribed form, and to ignore those that do not follow the process.
This raises a very real difficulty for applicants because in the time between receiving a refusal and the human rights application being made, the applicant has no permission to be in the UK. Once the first application is refused, they will be deemed an overstayer with consequent loss of right to work, study, rent a property, open a bank account, not to mention the commission of a criminal offence (albeit one which is rarely prosecuted).
It is important to remember that an applicant can still raise human rights grounds in the course of a non-human rights application regardless of the Home Office’s rules. The Court of Appeal were clear on this point. This issue is ripe for judicial review. The SSHD will write to you and ask if you want to vary your application in this instance.[2] We are of the view that at this stage, applicants should send a Pre-Action letter for judicial review, stating that the attempt to de facto force a client to opt out of their human rights is unlawful.
The Court of Appeal acknowledged in its decision that applications for ILR may still raise human rights grounds, but it suggested that the lawfulness of the Home Office’s ‘one-at-a-time’ policy for applications could be challenged by the right Judicial Review. This leaves the door open to a suitable case to challenge the policy.
Examples
- A Skilled Worker who would have applied for indefinite leave to remain (“ILR”) with his family, but has sadly died four months before the five years required for ILR, thus meaning the application for the rest of the family is now discretionary and involves human rights elements.
- An applicant who is an accidental overstayer but has been in the UK for 10 years and is required to regularise their immigration status.
- A Tier 1 Investor migrant who invested funds in the wrong asset class, but had dependent children in school and university. In this instance, a refusal of extension was considered highly disruptive to the dependent children’s education.
Without legal advice applicants may not even be aware that their application could potentially carry a discretionary human rights element. That said many applicants prefer to apply for leave to remain as it gives rise to a “better” immigration status if successful. A successful human rights claim could lead to a grant of a “lesser” immigration status, such as 30 months of permission on a 10 year route to ILR. However, the importance of the human rights element means that normally, it would grant you the right of appeal to a refusal, allowing you to submit your case to the First-tier Tribunal.
Conclusion
The court has left the door open to challenge the application of the ‘one-at-a-time’ policy by way of judicial review. That policy being ruled unlawful could solve the problem of people being unable to introduce human rights arguments as part of mainstream immigration applications. However, until that day MY (Pakistan) entitles the Home Office to refuse to engage with human rights claims meaning migrants must make a hard choice between applying for leave under the rules (which is possibly going to fail) or making a human right claim from the outset.
Our citizenship and immigration practice has experience of complex immigration applications, including those raising human rights issues based on family and private life, as well as challenging Home Office decisions and we can advise on the appropriate application to make.
