Court of Appeal Allows Home Office to Refuse Human Rights Claim

It stands to reason that anyone making an application to the Home Office on the grounds of their human rights deserves to have their case fairly considered. Unfortunately, a recent court case may have made this process somewhat more difficult for some. In a recent ruling by the Court of Appeal in the case of MY (Pakistan) v Secretary of State for the Home Department [2021] EWCA Civ 1500, it was decided that the Home Office did not need to consider a human rights claim to remain in the UK because the wrong process was used by the applicant. In this article, we will look at why the Court of Appeal rejected an appeal against a decision by the Home Office not to consider an application for ILR in the UK due to domestic abuse and that it did not constitute a human rights claim.

The background to the case

MY (Pakistan) v Secretary of State for the Home Department [2021] EWCA Civ 1500 concerns an application for ILR made by MY, which was refused by the Home Office. The ILR application was made as a victim of domestic abuse in accordance with DVILR of Appendix FM of the Immigration Rules. At the time of applying for ILR, it was also stated in the application that any refusal would breach his human rights; “In the present case, the Appellant made an application for ILR under section DVILR of Appendix FM of the Immigration Rules as a victim of domestic violence, using the prescribed form. Documents supplied with the form raised a contention that his removal consequent on a refusal of his application would be incompatible with his Convention rights”. This included why MY would be unable to return to their home country of Pakistan if their ILR application was refused.

The refusal stated, “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”.

The ILR application was refused, and the decision also made it clear a human rights claim was not considered by the Home Office and that a separate form would need to be used to bring such a claim; “The Secretary of State refused his application but said that she had not considered his contention that removal would be a breach of his Convention rights because that was not covered by his application and required to be raised by a separate application using a different form”.

As a result, MY appealed to the First-Tier Tribunal on the grounds that the Home Office had refused a human rights claim and he, therefore, had a statutory right of appeal (he would only have had a right to bring an administrative review if there was no human rights element). The Secretary of State took the view that because a human rights claim had not been considered, this did not constitute a refusal on the grounds of human rights. Both the First and Upper Tier Tribunals rejected the idea that MY had a statutory right of appeal.

What did the Court of Appeal find?

In essence, the Court of Appeal was asked to decide whether the Secretary of State refused ILR on the basis of a human rights claim even though it was stated it was based on the application as a victim of domestic abuse and that a separate application was needed for the former; as summarised by Lord Justice Underhill, “Whether the Secretary of State is to be regarded for the purpose of section 82(1)(b) as having made a decision to refuse the Appellant’s human rights claim notwithstanding that she has purported to decide only his application for leave to remain as a victim of domestic violence”.

The court agreed that applications for ILR on the basis of domestic violence and applications for human rights claims are distinct from each other, and it is reasonable for the Home Office to require that a different process be followed. The court also confirmed that the immigration rules state that even if a person has more than one basis for claiming ILR, they can only bring one application at a time. Section 34BB of the immigration rules states, “(1) An applicant may only have one outstanding application for leave to remain at a time. (2) If an application for leave to remain is submitted in circumstances where a previous application for leave to remain has not been decided, it will be treated as a variation of the previous application”.

It was also explained that cases brought on the basis of private life or family life are different from those brought on the basis of domestic abuse as they are “avowedly intended to give effect to applicants’ rights under article 8 of the Convention”. The court went on to explain, “However, the essential point underlying the Appellant’s claim is that the Secretary of State does not regard applications by victims of domestic violence (or bereaved partners) as “human rights applications” in the sense explained in the previous paragraph: that is, she does not regard them as inherently involving a human rights claim in the same way as an application on the other bases covered by Appendix FM”.

Lord Underhill did, however, offer some understanding of the claimant’s situation, stating, “I confess to some concern about a situation where someone who has (let it be assumed) pursued an application on a ground which is reasonable but ultimately unsuccessful can only pursue a second application on a (let it be assumed) valid second ground at the cost of being subjected to the various restrictions itemised above – though I am not to be taken to be expressing any views about its lawfulness”.

Final words

The court concluded that the challenge brought by the claimant should be in the form of a judicial review rather than a statutory appeal, and this will be considered as a next step. In the meantime, the one application at a time policy will remain in place.