Case No. UKUT-00090-(IAC)

23. As regards the g uidan ce found on page 11 of the document , we consider the r espondent may in due course need to defend the position taken there, that a person who e xpressly makes a human rights claim, asserting that it is a br each of their rights under Artic le 8 not to be granted ILR ( or , we would add, entry clearance) is not to be treated as having made a h uman r ights claim under section 113 if “nothing more is provided than a bare statement of this sort”. 24. A “ bare” or “unsubstantiated” claim is , however, very arguably, still a claim. In such a situation, the appropriate course may be to certify under section 94 of the 2002 Act, on the basis that the claim is clearly unfounded. 25. The g uidance is on stronger ground, in our view, in stating that in order for an application properly to raise human rights, and therefore constitute a claim, “ it is not necessary for the application form to say so. If the application does not state that it is a human rights claim, you will need to consider what the applicant’s reasons are for wanting to remain in the UK and decide whether those reasons amount to a human rights claim”. 26. We think this must be correct. The examples which the g uidance gives, of an application for leave to remain on medical grounds or to remain whilst court proceedings in the United Kingdom are ongoing, are plainly ones where, even if the applicant does not refer expressly to his or her human rights, the applicant, is in fact, making a human rights claim. 27. Other cases, however, may be much less clear- cut. The guidance provides that certain applications under the i mmigration r ules are to be treated by the r espondent as constituting, in effect, human rights claims. These include a number of “overseas” applications, including ones made under P art 8 of the Rules where the sponsor is present and settled in the United Kingdom or has certain refugee or humanitarian protection status. Certain applications made by reference to Appendix FM (family members) also covered by the guidance. 28. What, though, of applications made by reference to other provisions of the immigration r ules? In the present case, the appellant completed a n application form for entry clearance as a returning resident under paragraphs 18 and 19 of the r ules. She did not expressly claim, whether in the application form or the accompanying documentation, that a refusal to grant her re-entry into the United Kingdom would violate her ECHR Article 8 Rights. Nevertheless, compatibly with th e g uidance , the r espondent would need to treat her application as including a human rights claim if it appeared from the totality of the information su pplied that the appellant was advancing a case which, on the facts, properly required the caseworker to consider whether a discretionary decision to be made under the relevant immigration rule or rules needed to be taken by reference to Article 8 issues, or to loo k beyond the provisions of the immigration r ules and decide, if those rules were not satisfied, whether an Article 8 case was nevertheless also being advanced. 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 g randmother 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 un able 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 regar d to the g uidance, 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.