Muhammad Mujahid, R (on the application of) v The Secretary of State for the Home Department

A refusal of a human rights claim under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002 occurs only where the Secretary of State maintains that section 6 of the Human Rights Act 1998 does not require a grant of leave in response to the claim.

Where an application for indefinite leave is treated, with the applicant’s consent, as an application for limited leave and limited leave is granted on Article 8 grounds, the human rights claim has not been refused. That remains so although indefinite leave was sought on a different Article 8 basis, such as long residence.

The applicant sought indefinite leave to remain under paragraph 276B of the Immigration Rules, relying on long residence and on private and family life. The Secretary of State found that he did not qualify for indefinite leave because of discrepancies concerning declared earnings. She nevertheless treated the application, pursuant to the applicant’s signed declaration, as one for limited leave and granted 30 months’ leave on the basis of his relationship with his qualifying child.

The First-tier Tribunal declined to accept his appeal as having no appealable decision. In judicial review proceedings, the issue was whether the grant of limited leave nevertheless entailed a refusal of a human rights claim under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002.

1. The judicial review application was dismissed. The applicant’s long-residence application was properly capable of being a human rights claim. Paragraph 276B is directed to the Secretary of State’s duty to act compatibly with Article 8 and section 6 of the Human Rights Act 1998. In this case the accompanying letter also expressly relied on private and family life.

2. For section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002, a human rights claim asserts that removal or a requirement to leave the United Kingdom would breach an ECHR right. Its refusal therefore requires the Secretary of State to take the position that she is not obliged to grant leave in response to that claim.

3. The application could not properly be divided into a refusal of one human rights claim and a grant of a separate claim. The applicant had expressly accepted that, if indefinite leave were unavailable, his application would be treated as one for limited leave. The Secretary of State did precisely that and granted limited leave on Article 8 grounds, subject to payment of the health surcharge.

4. The grant was a positive response to the human rights claim. It acknowledged that the applicant’s and his daughter’s Article 8 rights precluded removal or a requirement to leave, even though the Secretary of State did not accept the long-residence basis for indefinite leave. The notice also expressly stated that he was not required to leave the United Kingdom.

5. Balajigari v Secretary of State for the Home Department & Others [2019] EWCA Civ 673 did not alter that conclusion. It did not concern applicants who had been granted limited leave in response to their indefinite-leave applications. Its discussion of existing leave assumed that a paragraph 322(5) finding would ordinarily lead to curtailment or refusal on another basis; the Secretary of State had instead made a defensible, fact-specific Article 8 assessment.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial review application dismissed.

• First-tier Tribunal (Immigration and Asylum Chamber): On 26 March 2019, a judge declined under rule 22(2)(a) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 to accept the notice of appeal, finding no appealable decision. The reason initially given was accepted to be erroneous because the applicant had made a human rights claim.

• First-tier Tribunal jurisdictional validity decision: On 15 July 2019, Upper Tribunal Judge Martin, acting as a Judge of the First-tier Tribunal, concluded that the grant of leave meant there had been no refusal of a human rights claim.