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

Under the Nationality, Immigration and Asylum Act 2002, a right of appeal against refusal of a human rights claim arises only where the decision leaves the applicant liable to removal, required to leave the United Kingdom, or refused entry. The decisive question is what the Secretary of State has refused, not simply what the applicant sought. Refusal of indefinite leave to remain, accompanied by a grant of limited leave preserving a continuing right to remain, does not refuse a human rights claim. Such a decision remains challengeable by judicial review on ordinary public law grounds, but does not attract an appeal under section 82(1)(b).

The appellant, a Pakistani national, applied for indefinite leave to remain after ten years’ residence. The Secretary of State concluded that he did not qualify for indefinite leave but indicated that, subject to payment of the immigration health surcharge, he would receive 30 months’ limited leave because of his daughter’s residence in the United Kingdom. Limited leave was subsequently granted until 21 September 2021, and the decision stated that there was no right of appeal.

The First-tier Tribunal held that no appeal lay. On judicial review, the Upper Tribunal, presided over by Lane J, upheld that conclusion in a judgment promulgated on 28 February 2020. The central issue before the Court of Appeal was whether refusal of indefinite leave, despite the grant of limited leave, amounted to refusal of a human rights claim under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002.

Appeal dismissed. Stuart-Smith LJ upheld the reasoning and decision of the President of the Upper Tribunal; Green LJ and Underhill LJ agreed.

1. Reading section 82(1)(b) with the definition of a human rights claim in section 113 produces a composite provision. An appeal arises where the Secretary of State has refused a claim that removal, a requirement to leave, or refusal of entry would be unlawful under section 6 of the Human Rights Act 1998. The decision must leave no lawful impediment to the relevant adverse immigration consequence, whether immediately or imminently.

2. The inquiry concerns what the Secretary of State has refused, rather than what the applicant sought. Where an application for indefinite leave is treated as an application for limited leave if indefinite leave is unavailable, and limited leave is granted, the decision-making process must be considered as a whole. It does not amount to refusal of a human rights claim.

3. Section 104(4A) supports this construction. It would be incoherent to recognise an appeal merely because limited leave was granted in response to an indefinite-leave application while treating an appeal as abandoned where limited leave was granted subsequently.

4. The interpretation does not infringe any constitutional right of access to justice. An applicant retains judicial review on ordinary public law grounds, and an appeal becomes available when a human rights claim is actually refused and there is a present and real need for protection against removal, a requirement to leave, or refusal of entry. Withholding indefinite leave alone does not interfere with Article 8 rights.

5. The appeal was therefore dismissed. The refusal of indefinite leave was not itself a refusal of a human rights claim, and the grant of limited leave meant that the appellant was not liable to removal or required to leave.

• Court of Appeal (Civil Division): Appeal dismissed. The court upheld the Upper Tribunal’s judgment, which had dismissed judicial review proceedings challenging the First-tier Tribunal’s conclusion that no statutory right of appeal existed.
• Upper Tribunal (Immigration and Asylum Chamber): In a judgment promulgated on 28 February 2020, Lane J dismissed the judicial review proceedings and held that refusal of a human rights claim did not arise where the applicant retained a continuing right to remain.
• First-tier Tribunal (Immigration and Asylum Chamber): Held that the appellant had no right of appeal against the decision refusing indefinite leave while granting limited leave.