Court of Appeal grants permission to appeal to the Appellant in MY (refusal of human rights claim) Pakistan

18 January 2021

To refuse or not to refuse

The Court of Appeal will soon be grappling with the pivotal question as to what constitutes a decision to refuse a human rights claim, so as to give rise to a statutory right of appeal for the purposes of section 82 of the Nationality, Immigration and Asylum Act (NIAA) 2002, after the Upper Tribunal held in MY (refusal of human rights claim) Pakistan [2020] UKUT 89 (IAC) that the Secretary of State does not ‘refuse’ a claim unless she had ‘engaged’ with it. Section 82 did not apply if she refused to consider a human rights claim at all, as she had done in the case of MY, who had made an application under Section DVILR of Appendix FM: family members to the Immigration Rules based on the domestic violence he had suffered, which included submissions regarding his human rights.

MY appealed against the UT decision on the basis that the refusal of an application or claim which is, or which includes, a human rights claim (as defined in section 113 NIAA 2002) is a ‘refusal of a human rights claim’ for the purposes of the 2002 Act and thus attracts a statutory right of appeal. The statute does not require the Secretary of State to have ‘engaged’ with the claim.

The Court of Appeal has now granted permission to appeal on the basis that “It is well arguable that a human rights claim is refused both if it is considered and rejected on its merits and if the Secretary of State refuses to consider it at all.”

To understand the importance of this appeal, especially to victims of domestic violence such as MY, it is necessary to go back to 2015 and the significant changes to the appeal rights regime.

Victims of Domestic Violence under the Immigration Rules 

There has long been an available route under the immigration rules to ensure that foreign national “Spouses and partners who are the victims of domestic violence [in the UK] should not feel constrained to remain in an abusive relationship … solely in order to qualify for indefinite leave to remain” (Ishtiaq v SSHD [2007] EWCA Civ 386 – para 30).

Yet there are numerous hurdles for applicants to vindicate their rights. Firstly, the current version of the immigration rules under DVILR is so narrowly constructed that many applicants are excluded solely on the basis of the type of leave they hold. Secondly, the Secretary of State routinely construes DVILR to require particular forms of evidence, difficult or impossible for most clients to obtain, even though there are no specific evidential requirements in the rules themselves. Thirdly, the changes to the statutory appeals regime under s. 82 NIAA 2002, wrought by the Immigration Act 2014, which reduced the types of decisions that enjoy a right of appeal from 17 to 4, effectively removed a right of appeal for victims of domestic violence – due to subsequent changes set out in Appendix AR: administrative review.

Historically, appeals have provided an important route to success for domestic violence victims, with figures from 2011 revealing that 82% of appeals in this category succeeded. In fact, it is almost impossible to imagine how a case, where the Secretary of State has not accepted that a relationship broke down due to domestic violence, could ever be reversed without evidence being heard by an independent tribunal.

Human Rights Claims

One of the limited instances in which a statutory appeal can still be brought under s. 82, as of 6 April 2015, is “where the Secretary of State has decided to refuse a human rights claim made by P.” The Secretary of State automatically deemed the majority of applications made under Appendix FM to be human rights claims, since the purpose of introducing Appendix FM in 2012 was to “set proportionate requirements that reflect the Government’s and Parliament’s view of … Article 8…”

However, the Secretary of State for the first time decided unilaterally that two types of applications made under Appendix FM – for bereaved partners and victims of domestic violence – do not constitute a human rights claim. As a result, victims of domestic violence are deemed by the Secretary of state to have only the (largely ineffectual) right to administrative review (see Appendix AR).

DVILR Applications which include a Human Rights Claim

The first challenge to this change came in the case of R (on the application of AT) v Secretary of State for the Home Department [2017] EWHC 2589 (Admin) where Mr Justice Kerr held that where applications for DVILR are also human rights claims the Secretary of State cannot, without primary legislation, remove the right of appeal from those claims, as that would be contrary to s. 82(1)(b).  The appropriate remedy in those cases would be a statutory appeal.

Mr Justice Kerr also observed that: “It is obvious that in domestic violence claims the form to be used should include an option to assert that the claim is also a human rights claim…Meanwhile, I hope she [SSHD] will be advised to treat a single application, whether on form SET(DV) or on form FLR(FP), as a valid application, even if it purports to be both a domestic violence claim and a human rights claim.”

Following on from AT, it became common for practitioners to include an explicit human rights claim as part of any DVILR application. Yet the Secretary of State has continued to refuse DVILR applications, including those raising human rights, and notify applicants that they only have a right of administrative review. In many of those cases she has refused to even consider the human rights submissions raised, direcing applicants to make a separate, charged application for that purpose. Where applicants have nonetheless attempted to appeal those decisions, notwithstanding the view of the Secretary of State, the FtT has often gone on to list, to hear and to allow many of those appeals. At least until MY

MY (refusal of human rights claim) Pakistan [2020] UKUT 89 (IAC)

In MY (refusal of human rights claim), a Presidential panel of the Upper Tribunal sought to determine what constitutes a decision “to refuse a human rights claim” for the purposes of s. 82. They rejected MY’s submissions that the refusal of any application which is, is implied to be, or which includes, a human rights claim, will suffice. Instead, they held that “the Secretary of State decides to refuse a human rights claim if she: (i) engages with the claim; and (ii) reaches a decision that neither C nor anyone else who may be affected has a human right which is of such a kind as to entitle C to remain in the United Kingdom (or to be given entry to it) by reason of that right” (headnote 3).

This formulation appears to grant unlimited power to the Secretary of State to deny a statutory right of appeal to any applicant, by simply refusing to engage with the relevant human rights submissions.  The Court of Appeal will now determine whether that position is the correct one.

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