Shrestha & Anor, R (On the Application Of) v The Secretary of State for the Home Department

A statement supplied in response to a notice under section 120 of the Nationality, Immigration and Asylum Act 2002 does not constitute an application for leave to remain on human rights grounds. The Secretary of State may require such an application to comply with the prescribed form and fee requirements.

A human rights claim must nevertheless be considered before removal where removal is said to be incompatible with Convention rights. That protection does not oblige the Secretary of State to determine an informal human rights representation as an application for leave while no removal decision is being pursued.

The applicants sought permission to appeal against the Upper Tribunal’s refusal of permission to proceed with judicial review. After the first applicant’s Tier 1 application had been refused, he responded to a section 120 notice by advancing family and private life grounds. The Secretary of State declined to consider those representations without an application in the prescribed form and payment of the required fee.

The Upper Tribunal held that it was not arguable that the Secretary of State had acted irrationally. The central issue was whether a human rights ground raised in response to a section 120 notice had to be treated and determined as an application for leave to remain without a further formal application.

1. Permission to appeal refused. Section 50(1) of the Immigration, Asylum and Nationality Act 2006 and paragraph 34 of the Immigration Rules authorised and imposed procedural requirements for applications for leave to remain, including use of the specified form and payment of any required fee. Although the Secretary of State could waive those requirements, and might sometimes be obliged to do so, no circumstances requiring waiver arose here.

2. Section 120 of the Nationality, Immigration and Asylum Act 2002 did not waive the prescribed application requirements. It required a person to state reasons and grounds for wishing to remain. It neither required nor itself enabled that person to make an application for leave to remain on human rights grounds. The Secretary of State was therefore entitled to require a properly made application before determining whether leave should be granted.

3. Ahsan v Secretary of State for the Home Department [2017] EWCA Civ 2009 did not establish otherwise. A claim that removal would violate Convention rights need not be made through a fee-paid application before it can prevent removal. That proposition concerns the effectiveness and lawfulness of removal, not whether informal representations must be treated as an application for leave. If removal directions were issued, the applicants could rely upon their human rights claims and, subject to certification, obtain an appeal whether or not they had made a formal leave application.

4. TY (Sri Lanka) v Secretary of State for the Home Department [2015] EWCA Civ 1233 concerned the grounds available in an existing appeal following refusal of an application under the EEA Regulations. It reflected section 85(2), under which a tribunal considers relevant matters raised in a section 120 statement where an appeal is pending. The present applicants had no such appeal, so that decision did not govern their position.

5. Accordingly, a human rights ground first raised after refusal on other grounds, in response to a section 120 notice, need not be treated or determined as an application for leave in the absence of the required form and payment. Hickinbottom LJ gave the judgment, with which Hamblen LJ agreed.

1. Court of Appeal (Civil Division): Permission to appeal was refused in [2018] EWCA Civ 2810.

2. Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Rintoul refused permission to proceed with judicial review on 4 June 2018. Judge Macleman subsequently refused permission to appeal to the Court of Appeal.

3. Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Gleeson refused permission to proceed on the papers on 4 January 2018, holding that a paid family and private life application provided an alternative remedy.