Juliana Baihinga v The Secretary of State for the Home Department

A rule 22 notice under the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 is confined to the Tribunal’s initial scrutiny of a notice of appeal. If the matter has proceeded to a hearing, an ensuing finding that there is no right of appeal must be made by determination and may be challenged in the Upper Tribunal.

An application may be a human rights claim without express reliance on human rights. The question is whether the information supplied, viewed as a whole, requires consideration of ECHR issues in exercising a discretion under the Immigration Rules or outside them. A later review cannot itself convert a non-human-rights application into such a claim, but may illuminate the true nature of the original application and decision.

The appellant, a Sierra Leone citizen formerly granted indefinite leave to remain, applied in 2015 for entry clearance as a returning resident under paragraphs 18 and 19 of the Immigration Rules. The entry clearance officer refused the application after considering her long absence, family circumstances and asserted dependency.

The First-tier Tribunal held that there was no valid appeal because the application was not an asylum, protection or human rights claim. Permission was initially refused on the mistaken basis that the purported invalidity notice required judicial review. The Upper Tribunal considered whether rule 22 could have that effect and whether the application and its accompanying material constituted a human rights claim whose refusal attracted an appeal under section 82 of the Nationality, Immigration and Asylum Act 2002.

1. Appeal allowed. The First-tier Tribunal made an error of law in concluding that it lacked jurisdiction. The case was remitted to that Tribunal for determination.

2. Rule 22 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 is available when the First-tier Tribunal scrutinises a notice of appeal as soon as practicable after it is lodged. Once the appeal has proceeded to a hearing, any conclusion that there is no exercisable right of appeal must be made in a determination. It is then appealable to the Upper Tribunal, consistently with JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78 and Practice Statement 3.

3. Under sections 82(1)(b) and 113 of the Nationality, Immigration and Asylum Act 2002, an application need not expressly identify itself as a human rights claim. Outside categories treated by the respondent’s guidance as human-rights applications, the whole information supplied must be assessed. It is a human rights claim where it advances matters requiring the decision-maker to consider ECHR issues when exercising a discretion under the Rules, or to consider an Article 8 case outside the Rules.

4. On the material submitted, the appellant relied on the death of her grandmother, lack of close family support in Sierra Leone, emotional and financial dependence, and reunion with her father and sister in the United Kingdom. Those matters required Article 8 consideration in the exercise of the broad discretion in paragraph 19. Her application was therefore a human rights claim, and the entry clearance officer’s refusal was a refusal of that claim.

5. Whether a human rights claim was refused is determined by the decision said to refuse it. The entry clearance manager’s later response to appeal grounds could not re-characterise either the application or the entry clearance officer’s decision. It could, however, shed light on their true nature. Here it confirmed the Article 8 character of the matters considered.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal against the First-tier Tribunal’s jurisdictional determination and remitted the case.

• First-tier Tribunal: Held that the returning-resident application was not a human rights claim and that no valid appeal lay.