Mujahid, R (On the Application Of) v First Tier Tribunal (Immigration and Asylum Chamber)

The Court of Appeal held that, for the purposes of s.82(1)(b) of the Nationality, Immigration and Asylum Act 2002, a right of appeal to the First-tier Tribunal arises only where the Secretary of State's decision is effectively to refuse a human rights claim by concluding that removal, requiring the person to leave, or refusal of entry would not be unlawful under section 6 of the Human Rights Act 1998. Where, in response to an application for indefinite leave to remain treated as a human rights claim, the Secretary of State declines indefinite leave but grants limited leave to remain so that the applicant is not liable to removal, there is no decision to "refuse a human rights claim" within the meaning of s.82(1)(b) and therefore no right of appeal to the First-tier Tribunal.

The court relied on the definition of "human rights claim" in s.113 and considered s.104(4A) (treating in-United-Kingdom appeals as abandoned if limited leave is granted) as supporting the interpretation. The appellant's arguments, including constitutional access to justice, distinctions in the appeal provisions (s.84), and reliance on other authorities, were considered and rejected.

Background and parties: The appellant, a Pakistan national, applied for indefinite leave to remain in August 2016. That application was treated as a human rights claim under s.113 of the Nationality, Immigration and Asylum Act 2002. The Secretary of State concluded the appellant did not qualify for indefinite leave but, after payment of an immigration health surcharge, granted 30 months' limited leave to remain and a decision notice stated that the appellant was not required to leave the United Kingdom and had no right of appeal under s.82. The appellant applied to the First-tier Tribunal which held there was no right of appeal; the President of the Upper Tribunal (Lane J) dismissed the subsequent judicial review challenge; the appellant appealed to the Court of Appeal.

Nature of the claim and relief sought: The appellant sought a declaration that the Secretary of State's refusal to grant indefinite leave to remain amounted to a refusal of a human rights claim within s.82(1)(b), thereby giving rise to a right of appeal to the First-tier Tribunal. The Court of Appeal was asked to determine whether, where limited leave to remain is granted such that the applicant is not liable to removal, the Secretary of State has "refused a human rights claim" for the purposes of s.82(1)(b).

Issues framed by the court:

• How s.82(1)(b) should be read together with the definition of "human rights claim" in s.113;
• Whether a decision that declines indefinite leave but grants limited leave nonetheless constitutes a refusal of a human rights claim; and
• Whether Article 8 and access to justice considerations require a different interpretation.

Reasoning and conclusions: The court emphasised that the composite statutory wording indicates that an appeal under s.82(1)(b) arises where the Secretary of State has decided that there is no lawful impediment to removing the person from the United Kingdom or refusing entry — in other words where the effect of the decision is that removal (or requiring the person to leave or refusal of entry) would not be unlawful under s.6 HRA. The court agreed with the Upper Tribunal's analysis distinguishing (i) refusals producing an immediate or imminent liability to removal and (ii) refusals after which the applicant continues to have lawful leave to remain. The grant of limited leave in this case meant the Secretary of State accepted it would be unlawful to remove the appellant; accordingly there was no "refusal of a human rights claim" giving rise to an appeal to the First-tier Tribunal.

The court rejected arguments based on access to justice and other statutory constructions, noting s.104(4A) treats in-United-Kingdom appeals as abandoned if limited leave is granted and that judicial review remains available in appropriate cases.

Procedural path: appeal from the Upper Tribunal (Immigration and Asylum Chamber) (President Lane J, judgment promulgated 28 February 2020) to the Court of Appeal, which dismissed the appeal on 31 March 2021.

Appeal dismissed. The Court of Appeal upheld the Upper Tribunal's conclusion that s.82(1)(b) must be read with the definition of "human rights claim" in s.113 so that a right of appeal arises only where the Secretary of State's decision has the present or imminent effect that there is no lawful impediment to removal, requiring the person to leave, or refusal of entry; the grant of limited leave meant no such refusal of a human rights claim had occurred.

Appeal from the Upper Tribunal (Immigration and Asylum Chamber) (President Lane J; judgment promulgated 28 February 2020) which dismissed the appellant's claim that a right of appeal under s.82(1)(b) arose. The Court of Appeal (this judgment) dismissed the appeal on 31 March 2021 ([2021] EWCA Civ 449). The First-tier Tribunal had earlier decided there was no right of appeal under s.82(1)(b).