Case No. UKUT-00222-(IAC)

, noting that it was accepted by the respondent that the appellant had made a human rights claim: [50]-[55]. For reasons he gave at [56]-[80] the President concluded that the appellant’s human rights submissions had not been refused because they had not been considered, and therefore that there had been no refusal of a human rights claim which engaged s82 of the 2002 Act. In so concluding, Lane J said this at [67]: The respondent's ability, pursuant to section 50 of the 2006 Act, to require a specified procedure to be followed in making or pursuing an application or claim, and, in particular, in requiring the use of a specified form (along with the payment of a fee) has been endorsed by the Court of Appeal in Shrestha . Although that case was concerned with a section 120 Notice, paragraphs 29-33 of the judgment of Hickinbottom LJ acknowledged the power of the respondent to regulate the way in which applications and claims fall for consideration under the Immigration Acts. The way in which the respondent does so may, of course, be subject to public law challenge. However, there is no suggestion in Shrestha that the Court had difficulties with the respondent's stance (which differed from that in Ahsan ), whereby the respondent will, as a general matter, engage with an application or claim only if made in the specified manner, until the point at which the individual concerned is subject to removal directions, when no formality will be necessary. We reject Ms Mair's attempt to distinguish Shrestha ; although concerned with section 120, it contains an endorsement of the respondent's practice that has relevance to the present case. 112. The judicial headnote to the decision reflects the conclusions summarised at [81]. The headnote is as follows: (1) The Secretary of State's assessment of whether a claim by C constitutes a human rights claim, as defined by section 113 of the Nationality, Immigration and Asylum Act 2002, is not legally determinative. The Secretary of State's Guidance is, however, broadly compatible with what the High Court in R (Alighanbari) v Secretary of State for the Home Department [2013] EWHC 1818 (Admin) has found to be the minimum elements of a human rights claim. (2) The fact that C has made a human rights claim does not mean that any reaction to it by the Secretary of State, which is not an acceptance of C's claim, acknowledged by the grant of leave, is to be treated as the refusal of a human rights claim under section 82(1)(b) of the 2002 Act, generating a right of appeal to the First-tier Tribunal. The Secretary of State is legally entitled to adopt the position that she may require human rights claims to be made in a particular way, if they are to be substantively considered by her so that, if refused, there will be a right of appeal. (3) There is, accordingly, no justification for construing section 82(1)(b) otherwise than according to its ordinary meaning, which is that the Secretary of State decides to refuse a human rights claim if she: (i) engages with the claim; and (ii) reaches a decision that neither C nor anyone else who may be affected has a human right which is of such a kind as to entitle C to remain in the United Kingdom (or to be given entry to it) by reason of that right. 113. With that overview of the authorities, I return to the submission made by Sir James Eadie QC before me. For the reasons which follow, I do not consider the respondent’s acceptance that the applicants have made a human rights claim which will not be considered forthwith but at some point prior to removal serves to affect the relief which would ordinarily flow from the conclusions I have reached in relation to the guidance itself and the decision in the applicant’s individual cases. 114. I do not accept the respondent’s principal submission that the stance recorded and adopted in the authorities I have set out above has removed the basis upon which Omar and Carter were decided. On the contrary, I consider Mr Mackenzie to be correct in his submission that the respondent’s argument before me is merely a reworking of a submission which was rejected by Beatson J in Omar . 115. At [70] of his judgment in Omar , Beatson J recorded that the respondent’s primary submission before him was that “the prospect of a breach of Article 8 is only theoretical because the Secretary of State has a residual power to grant leave to remain of her own motion and because of the other ways a claimant can obtain leave without making an application”. At [74], Mr Johnson QC for the Secretary of State was recorded as having submitted, inter alia , that the claimant was able to bring his circumstances to the attention of the Secretary of State by submitting that he could not be removed without disproportionately interfering with his Convention rights, so he had to be given discretionary leave without making a formal application’. 116. Those submissions were rejected by Beatson J for a number of reasons, not all of which I propose to rehearse. Amongst those reasons, however, was the following. At [72], Beatson J concluded that it was ‘deeply unattractive’ to submit that the Secretary of State could grant leave of her own motion, not least because it required an individual who waited for her to do so to commit an offence under section 24 of the Immigration Act 1971, although he recognised that a prosecution would be unlikely. He also noted that requiring a person in that claimant’s position to wait for the respondent to take a decision would confine them to what he described as a ‘half-world’ or ‘limbo’ 3 . 117. Albeit in a slightly different guise, therefore, the submission made by Sir James Eadie QC before me was made before, and rejected by, Beatson J. Contrary to the submission made by the Secretary of State in these proceedings, Beatson J did not proceed on the basis that it was, in all circumstances, mandatory for a person who seeks to make an Article 8 claim to make a formal/paid application on a specified application form. Beatson J acknowledged that there were other ways in which an individual might ventilate his Convention rights before the Secretary of State but he did not accept that those alternatives provided an adequate solution for the impecunious applicant who sought to regularise their status. 118. As matters presently stand, the concerns expressed by Beatson J about individuals in the position of these applicants being confined to a half-world apply a fortiori . The applicants have attempted to regularise their position in the United Kingdom by attempting to make an application for leave to remain. The respondent declined to consider that application for leave to remain because, as I have concluded, she operates an unlawful policy on fee waivers which is not properly aligned with the affordability test. As a result of those unlawful actions, the applicants are required to await a decision from the Secretary of State on what she nevertheless accepts to have been a valid human rights claim. In the intervening period, they continue to be subject to the hostile or compliant environment, the extent of which is clear from the decision under challenge (as set out at [20] above) and was recently considered by Hickinbottom LJ at [3] of