JA & Ors v The Secretary of State for the Home Department

A person may advance an alleged risk of serious harm, including a risk potentially engaging Article 3, solely within a private-life human rights claim. The Secretary of State should alert the person where the allegations might also found a protection claim, but the person is not obliged to make one.

The risk must then be assessed in its Article 8 context. A refusal to pursue protection procedures may justify some scepticism, particularly where the allegation is raised late, but does not remove the issue from consideration. An appeal against refusal of a human rights claim remains confined to the human-rights ground in section 84(2) of the Nationality, Immigration and Asylum Act 2002.

The Nigerian appellants applied for leave to remain on family and private-life grounds. They alleged that return would expose their child to enforced initiation into a family deity tradition and expose the family to kidnapping risks.

The Secretary of State refused the applications under paragraph 276ADE(1)(vi) of the Immigration Rules. The appellants had declined an opportunity to claim asylum. The First-tier Tribunal dismissed their human-rights appeals, finding that the family could relocate within Nigeria.

Permission to appeal was initially refused. Following reduction by the Outer House of the Court of Session of the Upper Tribunal's refusal of permission, permission was granted. The central issue was whether the First-tier Tribunal wrongly excluded, or failed properly to consider, allegations capable of amounting to serious harm in deciding the Article 8 private-life appeals.

1. The appeals were dismissed. The First-tier Tribunal had made no material error of law and its decision dismissing the human-rights appeals stood.
2. Where a human-rights claim contains allegations that could also found a protection claim, the Secretary of State should draw that possibility to the claimant's attention. That course is appropriate in light of international obligations towards refugees and persons needing humanitarian protection. The claimant nevertheless remains free to confine the application to private life under Article 8, including paragraph 276ADE(1)(vi) of the Immigration Rules.
3. In such a case, the alleged serious harm must be considered in the Article 8 private-life assessment. The claimant's refusal to make a protection claim does not bar consideration of the allegation. It may, however, inform the assessment and permit a cautious approach, particularly if the allegation is advanced late. The claimant cannot, in an appeal against refusal of only a human-rights claim, rely on the protection grounds in section 84(1) of the Nationality, Immigration and Asylum Act 2002; the available ground is section 84(2).
4. The Secretary of State's refusal letter wrongly failed to assess the alleged deity-related and kidnapping risks when considering obstacles to integration. That error did not affect the outcome. The First-tier Tribunal had engaged with the risks and permissibly found that the family could relocate elsewhere in Nigeria. That finding also encompassed the kidnapping allegation. There was no evidence that the kidnappers would identify the family after return, and the asserted financial motive would disappear on their return.
5. The Tribunal rejected the submission that the First-tier Tribunal had failed to make the broad evaluative assessment required by Secretary of State for the Home Department v Kamara [2016] EWCA Civ 813. It had considered the evidence collectively, including health matters and the appellants' transferable skills.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeals, holding that the First-tier Tribunal had made no material error of law.
• Outer House of the Court of Session: reduced the Upper Tribunal's earlier refusal of permission to appeal after the parties agreed that it had erred in treating a protection claim as the required route for advancing the serious-harm allegations.
• First-tier Tribunal: dismissed the appeals against refusal of the appellants' human-rights claims.