The Secretary of State for the Home Department v Samuel Oludare Oluyemi Yerokun

A right of appeal arises only where the Secretary of State has decided to refuse a human rights claim within section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002. Granting leave, even for a short period, in response to an application does not amount to refusing the accompanying human rights claim. The grant removes, for the time being, the proposed interference by removal on which the claim depends. An application and a claim are distinct concepts. Refusal of the particular benefit sought does not necessarily refuse the underlying claim. The First-tier Tribunal therefore has no jurisdiction where leave has been granted and the human rights claim has not been refused.

The respondent, a Nigerian national, applied for leave to remain on human rights grounds. The Secretary of State refused the application but granted six months’ leave outside the Immigration Rules pending proceedings concerning access to his children. The notice stated that there was no right of appeal.

The First-tier Tribunal nevertheless held that there was a right of appeal and later allowed the appeal. The Secretary of State appealed to the Upper Tribunal, principally on jurisdictional grounds. The central issue was whether the decision amounted to a refusal of a human rights claim for the purposes of section 82(1) of the Nationality, Immigration and Asylum Act 2002.

1. The appeal was allowed on the jurisdictional issue. The decision challenged by the respondent was not a decision within section 82(1) of the Nationality, Immigration and Asylum Act 2002 and carried no right of appeal.
2. The Tribunal followed R (Mujahid) v First-tier Tribunal and SSHD [2020] UKUT 00085 (IAC). A human rights claim asserts that removal or a requirement to leave would be unlawful under section 6 of the Human Rights Act 1998. Where the Secretary of State grants limited leave in response, the claim has not been refused merely because the applicant sought a different form or duration of leave.
3. Section 104(4A) reinforces that conclusion. If leave is granted after a human rights appeal has been brought, the appeal is treated as abandoned. It would be incoherent for the same grant of leave before an appeal to generate a right of appeal. The grant removes, for the time being, the proposed interference by removal that supplies the basis of the human rights appeal.
4. An application and a claim are inherently different. An application seeks an executive benefit; a claim depends on the circumstances and their assessment. Refusal of an application does not necessarily refuse an accompanying human rights claim.
5. The First-tier Tribunal therefore erred in law in assuming jurisdiction. Its decision was set aside, and a decision dismissing the purported appeal for want of jurisdiction was substituted. The First-tier Tribunal’s findings on the evidence had no effect.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the Secretary of State’s appeal, set aside the First-tier Tribunal’s decision and substituted dismissal of the purported appeal for want of jurisdiction.
• First-tier Tribunal: Judge Buchanan held that there was a right of appeal and subsequently allowed the respondent’s appeal in respect of the Secretary of State’s decision.