MY v Secretary of State for the Home Department

A human rights claim within section 113 of the Nationality, Immigration and Asylum Act 2002 does not itself create a right of appeal. A right under section 82(1)(b) arises only where the Secretary of State has substantively engaged with the claim and decided that the claimant, or another affected person, has no human right entitling the claimant to enter or remain.

The Secretary of State may generally require human rights claims to be made by a specified procedure before considering them substantively. A refusal to consider a claim made outside that procedure is not a refusal of the claim. Its lawfulness is challengeable by judicial review, not by an appeal to the First-tier Tribunal.

MY v Secretary of State for the Home Department concerned a Pakistani national whose application for indefinite leave to remain as a victim of domestic violence was refused under the Immigration Rules.

His supporting materials also raised concerns about his mental health and possible danger from his former wife’s family if returned to Pakistan. The Secretary of State expressly stated that any human rights submissions had not been considered because the domestic-violence application was not treated as a human-rights-based application.

First-tier Tribunal. Judge Kelly held that there was no appealable refusal of a human rights claim and dismissed the appeal for want of jurisdiction. The appellant appealed to the Upper Tribunal. The central issue was whether a refusal of the Rules-based application, despite the express non-consideration of human rights submissions, was a refusal of a human rights claim for section 82(1)(b).

1. Appeal dismissed. The First-tier Tribunal made no error of law in holding that it lacked jurisdiction.

2. A human rights claim is defined by section 113 of the Nationality, Immigration and Asylum Act 2002. The Secretary of State’s view of whether material amounts to such a claim is not legally determinative. Her Guidance was nevertheless broadly compatible with the minimum elements identified in R (Alighanbari) v Secretary of State for the Home Department [2013] EWHC 1818 (Admin). On the accepted facts, the appellant had made a human rights claim.

3. Section 82(1)(b) requires more than the existence of such a claim. Construed according to its ordinary meaning, it requires the Secretary of State to engage with the claim and decide that neither the claimant nor another affected person has a human right entitling the claimant to enter or remain. A decision not to consider the claim is not a decision refusing it.

4. Section 50 of the Immigration, Asylum and Nationality Act 2006 and paragraph 34 of the Immigration Rules permit the Secretary of State generally to require a specified form and procedure before she substantively considers a human rights claim. That position was supported by R (Shrestha) v Secretary of State for the Home Department [2018] EWCA Civ 2810 and Balajigari & Ors v Secretary of State for the Home Department [2019] EWCA Civ 673. The system may be challenged on public-law grounds, but it does not remove an appeal right where a human rights claim has actually been refused.

5. The decision letter had to be read as a whole. It made clear that the appellant’s human rights submissions had not been considered. The proper remedy for any unlawfulness in that non-consideration was judicial review in the Upper Tribunal. First-tier caseworkers and duty judges should not inspect applications merely to treat a refusal of leave as a refusal of an unconsidered human rights claim.

• Upper Tribunal (Immigration and Asylum Chamber). The appellant’s appeal against the First-tier Tribunal’s jurisdictional decision was dismissed: [2020] UKUT 89 (IAC).
• First-tier Tribunal. Judge Kelly held that the Secretary of State had not refused a human rights claim and dismissed the appeal for want of jurisdiction.