Case No. UKUT-00090-(IAC)

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 HOME OFFICE Rights of appeal Version 6.0 Guidance on where there is a right of appeal against decisions in immigration cases, including mechanisms to prevent repeat rights of appeal and prevent delay from appeals against unfounded claims. …. What is a human rights claim? This section explains what amounts to a human rights claim and how you identify and consider such claims. How to identify a human rights claim In the UK : application under the Immigration Rules The applications listed in this section and made under the Immigration Rules are human rights applications and the starting position is that there is a right of appeal against refusal. Where paragraph 353 (further submissions) applies and the further submissions do not amount to a fresh claim or where the claim is certified under section 96, there will be no right of appeal, and if certified under section 94 or 94B no right of appeal until the person has left the UK. These applications can be made while the applicant has leave under section 3C of the Immigration Act 1971 as a consequence of an ongoing appeal against the refusal of another application. No other applications under the rules other than those in this section can be made where the applicant has 3C leave. If the applicant withdraws their appeal, they will no longer be prevented from making any other application under the rules. Alternatively, the applicant may make an application once their appeal rights are exhausted. The relevant applications are those made under: • Paragraph 276B (long residence) • Paragraphs 276ADE(1) or 276DE (private life) • Paragraphs 276U and 276AA (partner or child of a member of HM Forces) • Paragraphs 276AD and 276AG (partner or child of a member of HM Forces), where: o the sponsor is a foreign or Commonwealth member of HM Forces and has at least 4 years’ reckonable service in HM Forces at the date of application • Part 8 of these Rules (family members) where: o the sponsor is present and settled in the UK or has refugee or humanitarian protection in the UK , not paragraphs 319AA to 319J (points-based system (PBS) dependents), paragraphs 284, 287, 295D or 295G (sponsor granted settlement as a PBS Migrant) • Part 11 (asylum) • Part 4 or Part 7 of Appendix Armed Forces (partner or child of a member of HM Forces) where: o the sponsor is a British Citizen or has at least 4 years’ reckonable service in HM Forces at the date of application • Appendix FM (family members), not : section BPILR (bereavement) or section DVILR (domestic violence) Refusal notice to be served: Asylum (except in deportation cases) • ASL.0015.ACD.IA (refusal of protection with a right of appeal with section 96 option to certify) • ASL.1000.IA (refusal of protection where the applicant failed to attend the screening interview – decision not certified) • ASL.1006.IA (protection refusal of dependents with section 96 option) • ASL.1956 (refusal of protection certified under section 94) • ASL.2704. (rejection of further submissions under paragraph 353) Refusal notice to be served: all other human rights applications • ICD.3050.IA (refusal with a right of appeal) • ICD.1182.IA (refusal with section 94 certification) • ICD.3051.IA (refusal with no appeal because not a fresh claim under paragraph Rule 353) • ICD.3052.IA (refusal with no appeal because of section 96 certification) In the UK : application outside the Immigration Rules Applications for leave to remain outside the rules on human rights grounds are made on forms FLR(O) for further leave to remain (LTR) and SET(O) for indefinite leave to remain (ILR). It is important to note that these forms are only to be used for human rights applications where there is no specific form available. For example, neither the FLR(O) nor the SET(O) should be used for applications under Appendix FM or on the private life route under paragraphs 276ADE and 276DE. Where the applicant uses the wrong form, you must reject the application as invalid under paragraph 34 Immigration Rules. These forms are multi-purpose and not all applications made on these forms are human rights claims. The FLR(O) and SET(O) forms require the applicant to tick a box indicating which application they are using the form for. Only one box may be ticked. It is only where the applicant ticks the box ‘Other purposes or reasons not covered by other application forms’ that it should be treated as a human rights claim. Though even if this box is ticked, the application may not be a human rights claim. In order to decide whether the application is one for a human rights claim, you should consider the following questions: • does the application say that it is a human rights claim? • does the application raise issues that may amount to a human rights claim even though it does not expressly refer to human rights or a human rights claim? • are the matters raised capable of engaging human rights? Determining if a human rights claim has been made 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. Notices to be served If the claim made does engage the human right relied upon, a human rights claim has been made. If the claim is refused, the appropriate notice from the following list should be served (except in deportation cases): • ICD.3050.IA (refusal with a right of appeal) • ICD.1182.IA (refusal with section 94 certification) • ICD.3051.IA (refusal with no right of appeal because not a fresh claim under paragraph 353) • ICD.3052.IA (refusal with no right of appeal because of section 96 certification) In the UK