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Immigration Appeal on Human Rights Grounds

The Home Office is known to be very harsh and strict when it comes to judging who is a genuine applicant that satisfies the Immigration Rules and who should be granted a visa. More often than not, an application to the Home Office will have elements of Human Rights claim which the Home Office must take into consideration. If the Home Office refuses an application without due consideration of your Human Rights claim, you will have the possibility to appeal the Home Office decision.

The aim of this blog is to give you an overview of the right to appeal on Human Rights grounds following a Home Office refusal.

Section 82 of the Nationality, Immigration and Asylum Act 2002: Right of Appeal

Where an immigration decision is made in respect of a person he may appeal:

  • the Secretary of State decision to refuse a protection claim;
  • the Secretary of State decision to refuse a human rights claim; or
  • the Secretary of State decision to revoke protection status.

Section 84 of the Nationality, Immigration and Asylum Act 2002: Grounds of Appeal

An appeal under section 82(1) against an immigration decision must be brought on one or more of the grounds set out in the Act. Most importantly, an appeal under section 82(1)(b) (refusal of human rights claim) must be brought on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998.

Case Law

Baihinga (r. 22; human rights appeal: requirements) [2018] UKUT 90 (IAC): The appellant in this case attempted to appeal an application refused by an Entry Clearance Officer and sent in a notice of appeal to the tribunal. The appellant also travelled to the UK and entered with temporary admission.

The notice of appeal was accepted by the tribunal and a hearing was listed. However, the tribunal decided that the appellant had not mentioned human rights and had therefore not made a human rights claim. On this basis, the appeal was declared invalid.

The appellant attempted to appeal this decision but the judge refused permission on the basis that, because there was no valid appeal, permission could not be granted. The only available remedy was said to be an application for judicial review.

A further application for permission to appeal directly to the Upper Tribunal was ultimately successful.

On the facts of the case, the Upper Tribunal found that a human rights claim had indeed been made:

29. As we have seen, the appellant was putting forward, as reasons for wishing to return, (a) that she had gone to Sierra Leone in 2004 to look after her grandmother; (b) that her grandmother had died, with the result that the appellant was left without any element of family in Sierra Leone; (c) that she was lonely without her relatives in the United Kingdom; and (d) that she wished to rejoin her father and sister in the United Kingdom.

30. The letter from the appellant’s father asserted (a) that the appellant, despite her qualification as an electrician, had been unable to obtain a permanent job in Sierra Leone; (b) that she was being supported by the father; (c) that she had no close relatives in Sierra Leone to give her emotional support; and (d) that it would be easier to support the appellant if she were living with the family in the United Kingdom.

31. Having regard to the guidance, which in this respect we consider properly accords with the meaning and scope of section 113 of the 2002 Act, the appellant’s application was, we find, a human rights claim.

In conclusion, a human rights claim is made where the facts of the case disclose a human rights claim, whether or not the words “human rights claim” are used and whether or not the application is made under the “human rights claim” paragraphs of the Immigration Rules.

This blog has been prepared on 18th May 2018 by Erald Dedja, a Paralegal at MTG Solicitors.