Case No. UKUT-00090-(IAC)

x to this decision. 22. Before us, Mr Deller submitted that the present case may not provide a satisfactory vehicle for examining in detail what constitutes a human rights clai m for the purposes of section 82 of the 2002 Act, as amended by the Immigration Act 2014. We do, however, consider that it is possible to say the following. (a) What is a human rights claim? 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. (b) What is a refusal of a human rights claim? 32. The fact that, as is evident from the e ntrance clearance o fficer’s decis ion, that officer did not accept the strength of the asserted family life between the appellant and her relatives in the United Kingdom , including her alleged dependants, does not, of cou rse, cast doubt on whether a human rights claim was being made. On the contrary, these passages of the decision make it plain, in our view, that the e ntry c learance o fficer was examining these matters as ECHR Article 8 issues , in order to decide , in all the circumstances, whether the appellant should be re - admitted as a returning resident. 33. As we have seen, paragraph 19 of the immigration rules confers a broad discretion on the entry clearance officer . In the particular circumstances of this case, it accordingly matter s not whether the entry clearance officer was considering the human rights claim of the appellant as an aspect of the decision whether to g rant entry clearance under the r ules or, alternatively, whether to do so outside the r ules, expressly by reference to Article 8. T he statement in the decision that refusing the application “is proportionate under the immigration r ules” probably indicates that the entry clearance officer was taking the former course. In either event, however, the entry clearance officer was refusing the appellant ’s h uman r ights claim. 34. As we have also seen, the entry clearance manager’s review expressly considered the appellant ’s A rticle 8 rights. The entry clearance manager was responding to the grounds of appeal. These contended that “refusing appellant to join her family in the UK would violate her human right under A rticle 8 ECHR” , on the basis that the: “ appellant has strong connections in the UK . All her close relatives liv e in the UK . Her father and sister (British Citizens) live in the UK ” [and] appellant no longer ha s any close relatives in Sierra Leone ”. There were also said to be “exceptional reasons why appellant lived outside the UK for over two years”. 35. As a matter of law, the issue of whether a h uman r ights claim has been refused must be judged by reference to the decision which is said to constitute the refusal of such a claim. The e ntry c learance m anager ’s review cannot , for this purpose, be part of that earlier decision. If a person has not made an application which constitutes , in law , a human rights claim, she cannot c hange that position by raising h uman r ights i ssues in her grounds of appeal t o the T ribunal. By the same token, the entry clearance manager’s review cannot re- characterise a decision of the r espondent which was not, in its own terms, the refusal of a human r ights claim. 36. That said, however , both the grounds of appeal and, more particularly , the terms of the entrance clearance manager’s review, may, depending on the circumstances, shed light on the true nature of the application and its refusal. In the present case, the entry clearance manager’s review may, w e consider, be seen as casting light on what the entry clearance officer had been doing when she refused the appellant ’s application. 37. For these reasons, based on the application and its accompanying materials, we find that the appellant made a human rights claim, which was refused by the entry clearance officer on 2 6 June 2015. The statement in the notice of decision, that the appellant had a right of appeal to the Tribunal , was, accordingly, entirely correct. 38. Although it has played no part in our determination of the jurisdictional issue, we should perhaps mention that matters have moved on, in that witness statements have been filed which assert that the appellant was returned to Sierra Leone by her father in 2004, as some sort of punishment for her unruly behaviour. Whether there is any truth in this will need to be determined by the First-tier Tribunal . In doing so, that Tribunal will no doubt wish to asses s the credibility of the appellant and her witnesses. This will entail consideration of the fact that, after her arrival in the United Kingdom , the appellant claime d asylum on the basis that her g randmother was the head of a secret society and that the appellant was in fear of having to take over the running of that society. This asylum claim was specifically withdrawn by the appellant in September 2016 (see paragraph 9 above) . Decision 39. The decision of the First-tier Tribunal contains an error of law. Contrary to what is said in that decision , the Tribunal had before it a valid appeal, which needed to be decided. We remit the case to the First-tier Tribunal . The Hon Mr Justice Lane President 1 February 201 8 Appendi x