Confirmed: The Home Office has the authority to disregard human rights complaints.

 The long-awaited decision in MY (Pakistan) v Secretary of State for the Home Department [2021] EWCA Civ 1500 has been issued by the Court of Appeal. Unfortunately, it confirms that the Home Office has the authority to refuse to deal with a human rights application for permission to remain in the UK that is not filed using the prescribed form or process. As a result, the applicant has no right of appeal.

Background information about human rights and appeals

MY requested indefinite leave to remain as a victim of domestic violence. The Home Office does not regard such applications to be human rights claims in and of themselves. If a human rights claim is denied, the applicant has the opportunity to appeal; other immigration applications do not. This implies that if their claim for indefinite leave as a victim of domestic abuse is denied, they will normally only have an administrative review.

MY used his application to argue that he would be unable to return to Pakistan, which constituted to a human rights claim. In rejecting his application, the Home Office focused on whether or not he was a victim of abuse, and determined that he was not. Concerning human rights, the refusal merely stated:

Any representations you may have made about your Human Rights have been ignored, as an application for settlement as a victim of Domestic Violence is not considered a Human Rights-based application. As a result, if you wish to apply for leave to remain based on your Human Rights or other humanitarian practise, you may do so using an appropriate form.

Nonetheless, MY filed an appeal with the First-Tier Tribunal. He claimed that the Home Office denied a human rights claim by rejecting his application, which included a human rights claim. That would imply he had a legal right to appeal.

Both the First and Upper Tribunals disagreed. MY appealed to the Court of Appeal.

Court of Appeal Decisions

The ruling of the Upper Tribunal was upheld by the Court of Appeal. Lord Justice Underhill succinctly summarised the appeal's issue as follows:

Whether the Secretary of State is to be regarded as having made a decision to refuse the Appellant's human rights claim for the purposes of section 82(1)(b), despite the fact that she professed to decide only his application for leave to remain as a victim of domestic violence.

The court determined that there is a distinction between applications for permission to stay (also known as leave to remain) and human rights claims. Some of the former must inevitably contain the latter: for example, applications based on family or personal life. Others, such as those based on domestic abuse, do not. While an applicant may mention a human rights claim in their application, this does not make the application a human rights claim in and of itself.

In turn, the Home Office has the right to request that human rights claims be made in a specific manner and to disregard those that do not follow that procedure. The Home Office simply ignored MY's distinct human rights argument when it denied her application for indefinite leave to remain. Because there was no engagement with the issue, there was no determination on the claim and, as a result, no opportunity to appeal.

The one-application-at-a-time policy may face future challenges in the future.

A basic issue in such instances, as we discussed previously, is that people are frequently forced to make difficult decisions. They can petition for a higher immigration status (in this case, indefinite leave to remain), but if they are denied, they will become an overstayer. They can also file a human rights claim, which comes with an appeal, but if successful, they may be awarded a reduced immigration status (such as 30 months of authorization).

Paragraph 34BB of the Immigration Rules states that one cannot have both. It specifies that you can only have one outstanding application for leave to remain at any given time. This is referred to as the "one-application-at-a-time policy" by Lord Underhill.

To pursue both options, people must first apply for indefinite leave to remain and, if denied, file a human rights lawsuit. The problem is that, between the first refusal and the acceptance of the human rights claim (assuming it is accepted), the applicant has no authority to be in the UK and so no right to work, claim benefits, use the NHS, and so on.

MY also argued in the appeal that it was illegal for the Home Office to refuse to consider a human rights claim raised as part of an application for leave to remain, and/or that it was illegal to require two separate application forms, one for human rights and one for an application under the Immigration Rules. This amounted to a challenge to the principle of "one application at a time."

Underhill LJ did not totally disregard those arguments:

In that regard, I confess to some concern about a situation in which someone who has (assumed) pursued an application on a reasonable but ultimately unsuccessful ground can only pursue a second application on a (assumed) valid second ground at the cost of being subjected to the various restrictions listed above – though I am not expressing any views on its legality.

In the meantime, what happens?

Unfortunately, migrants are still forced to choose between applying for leave and filing a human rights lawsuit. Which choice to take will be a case-by-case decision, based on the strength of the indefinite leave application, the applicant's appetite for risk, and what other options are available to them.

It should also be noted that persons can still raise human rights concerns during the process of a non-human rights application. The Home Office should then write to the applicant and ask if they want their application to be changed.