Case No. UKUT-00090-(IAC)

For the purposes of Part 5 of the Nationality, Immigration and Asylum Act 2002 (appeals in respect of protection and human rights claims), a human rights claim is defined as a claim made by a person that to remove them from or require them to leave the UK or to refuse him entry into the UK would be unlawful under section 6 of the Human Rights Act 1998. The form does not ask the applicant to indicate whether the claim being made is a human rights claim. You will need to identify whether a human rights claim is being made so that you know whether to serve a section 120 notice on receipt of the application and whether a refusal will attract a right of appeal. Does the application say this is a human rights claim? If so, does the application set out why this is a human rights claim? An application may say no more than: • I am making a human rights claim • It is a breach of my rights under Article 8 not to grant me ILR The claim needs to be particularised in order to be considered. If nothing more is provided than a bare statement of this sort, it is not a human rights claim and should be refused with no right of appeal. In order for an application to raise human rights, 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. For example, an applicant seeks leave to remain on medical grounds, to receive medical treatment or has a fear of return or of an undignified death because medical facilities in their home country are unavailable, unaffordable, inaccessible or of a lower standard than the UK . This should be considered as an Article 3 and Article 8 medical claim. For further guidance see related link: Recognising an implied claim. A further example would be where an applicant states that they are engaged in court proceedings and need to remain in the UK in order to conduct them or to appear as a witness. This should be considered as an Article 6 claim. It is not possible to give a full list of the facts that may amount to a human rights claim as individuals may raise any facts in any combination. Considering human rights claims provides a list of all human rights. You should ask yourself whether, having regard to the human rights protected by the European Convention on Human Rights (ECHR), is it obvious that the application relates to one of those rights. If it is obvious that the application relates to one of these rights, a human rights claim may have been made. Determining if human rights are engaged If the claim raises human rights, consider whether the claim made is capable of engaging the human right relied on. This will involve examination of the merits of the claim. You should refer to considering human rights guidance which sets out how to undertake a substantive examination of the merits of human rights claims. If no human rights claim has been made, the application should be refused with no right of appeal and no right to seek administrative review. You should serve notice ICD.4985. It is not generally possible to make a human rights claim as part of an application made under the Immigration Rules except where the application is deemed to be a human rights claim , or the claim is made in a section of the application seeking further grounds to enter or remain in UK. See the section on how to identify a human rights claim for more information.