Case No. UKUT-00090-(IAC)

Outside the UK , applications based on a human rights claim outside the Immigration Rules must form part of a valid application for entry clearance. The list under section overseas: application under the Immigration Rules gives the forms available for human rights applications under the rules. Where applicants cannot find an appropriate form or believe that they cannot meet the requirements of the Immigration Rules, they must contact their local visa application centre. If the applicant cannot meet the requirements of the rules, the local visa application centre should tell them to complete the visitor form (VAF1 A to K). Part 9 of a visitor form allows the applicant to set out any other information that should be considered as part of the application. This can include a human rights claim that leave should be granted outside the rules. Decision making process When a visitor application is received in which Part 9 has been completed, you must first consider whether a human rights claim has been made. Guidance on identifying whether such a claim has been made is set out in this section. If a human rights claim has been made, you must go on to consider it substantively and decide whether it is to be refused or granted. The answer to this question will determine whether the application can be dealt with at the visa application centre or whether it must be referred to the Referred Cases Unit (RCU). Where the application obviously falls for refusal, it can be dealt with at the visa application centre. An Entry Clearance Officer (ECO) can refuse an application outside the Immigration Rules. The refusal of a human rights claim will attract a right of appeal. Where the application has merit and may be granted, the ECO must refer the application to the Referred Cases Unit (RCU). This is because an ECO cannot grant an application outside the Immigration Rules. Determining if a human rights claim has been made The visitor form does not ask the applicant to indicate whether the claim being made is a human rights claim. Therefore the ECO will need to identify whether a human rights claim has been made. It is important that the ECO gives careful consideration to whether a human rights claim has been made. If no human rights claim has been made, the refusal of the application does not attract a right of appeal. ECOs 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? • what are the claim’s prospects of success? Guidance on each stage is set out in the considering human rights claims in visitor applications guidance. What to do once the claim’s prospects of success have been established If the human rights claim is to be refused, the ECO should issue a refusal by serving notice GV51 (refusal with right of appeal). If the ECO considers that the claim should be granted, or believes that it may result in a grant, the application should be referred to RCU who will consider the claim. The application will be returned to the ECO for refusal and service of GV51 (ROA).