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Immigration: Applications for leave relying on domestic violence not necessarily “human rights claims”

DATE: 13 Nov 2017

Since 6 April 2015, those who apply for indefinite leave to remain (“ILR”) in the UK claiming that they are a victim of domestic violence have not had a right of appeal to the First-tier Tribunal, only a right to ask the Secretary of State to review the decision for basic errors (a process known as ‘administrative review’). The removal of this right of appeal was part of a broader policy of reducing the scope for appealing against immigration decisions made by the Secretary of State. Only 3 types of decision may now be appealed against: the refusal of a protection (i.e. asylum) claim; the refusal of a human rights claim; and the decision to revoke an individual’s protection status (s. 82(1), Nationality, Immigration and Asylum Act 2002).

A “human rights claim” is defined by s. 113 of the 2002 Act as “a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Convention) as being incompatible with his Convention rights”.

In R (AT) v Secretary of State for the Home Department [2017] EWHC 2589 (Admin), the claimant submitted that all those who apply for ILR claiming to be victims of domestic violence are necessarily making “human rights claims” relying on Articles 3 and/or 8 ECHR such that the purported removal of a right of appeal in those cases, in Appendix AR to the Immigration Rules, was unlawful.  

Kerr J has rejected that argument. In a judgment handed down today, the judge agreed with the Secretary of State that whereas some applications for ILR on the grounds of domestic violence might also amount to or include a “human rights claim”, they are not, automatically, “human rights claims”: it is necessary to consider the substance of each application.

Insofar as a literal reading of the relevant provision of the Appendix AR suggests that an application for ILR on domestic violence grounds can never amount to a “human rights claim”, the judge was satisfied that the provision can be interpreted purposively so that it may survive rather than perish (ut res magis valeat quam pereat): [69].

The judgment is of wider significance given that the same argument about a right of appeal being ‘denied’, or a close variant of it, is made in many live claims for judicial review currently before the High Court and the Upper Tribunal.

In AT, the claimant still obtained a quashing of the decision in her case because she succeeded on an alternative ground alleging procedural unfairness. The judge’s conclusion that the Secretary of State should have given the claimant an opportunity to respond “at least [to] the gist” of allegations that her claimed aggressor had made against her, when consulted by the Secretary of State, is again of wider significance [88].

Gwion Lewis acted for the Secretary of State for the Home Department.