Case No. UKUT-00222-(IAC)

[2018] EWCA Civ 2810 and Balajigari [2019] EWCA Civ 673; [2019] 1 WLR 4647 was relevant. It could not properly be submitted that the decision to treat the applications as invalid was incompatible with Article 8 ECHR because the applicants would not be removed from the UK until their rights under the ECHR had been considered. 71. I should also record, as foreshadowed above, that the respondent produced an additional note after the short adjournment. This was seemingly produced in answer to concerns expressed by Mr Mackenzie about the application of the respondent’s stance in Ahsan (etc) to the applicants’ case. The note, which was handed up without objection from Mr Mackenzie, begins by stating the terms of section 113 of the Nationality, Immigration and Asylum Act 2002 Act 2 . At [2], the respondent states that in order to fall within that statutory definition, “a human rights claim does not require to be made in the form of a fee paid application under the Immigration Rules”. Given its potential significance in other cases, I must reproduce the rest of the note verbatim: [3] A human rights claim ought to be made by a fee-paid application, in the interests of orderly decision-making, and that priority may be given to claims so made; but that is not a statutory requirement and even if a claim is made in some other form an applicant will not be removed from the United Kingdom until it has been considered. [4] In this case, the applicant has not made a valid fee-paid application under the Immigration Rules. However, the application covering letter dated 22 December 2018 is a human rights claim that meets the section 113 definition. The applicant will not be removed from the United Kingdom until it has been considered. It is not unlawful to consider it forthwith at this stage. [5] It is desirable in the interests of orderly and efficient decision-making for a human rights claim to be made by way of a fee paid application for leave to remain in the United Kingdom. If the applicant makes such an application, it will be considered and determined in accordance with the Immigration Rules; and priority may be given of [sic] that application. If the applicant makes no such application, she will not be removed from the United Kingdom unless the human rights claim made in the application covering letter dated 22 December 2018 is considered and adversely determined. 72. Sir James Eadie QC accepted in oral argument that this note omitted a crucial word in the final sentence of [4], which was plainly intended to read “It is not unlawful not to consider it forthwith at this stage.” 73. This note prompted Mr Mackenzie to submit in reply that his clients were entitled to much of the relief sought in the claim form. In particular, he noted that the applicants had sought an order quashing the respondent’s decision to treat their human rights claims as invalid and an order prohibiting the respondent from removing the applicants from the UK until there had been a lawful assessment of their claims. 74. I reserved judgment at the conclusion of the oral argument. Shortly before this judgment was to be sent to the parties in its embargoed form, additional written submissions were filed by the both parties on 9 April 2020. In these notes, the advocates drew to my attention two decisions which had recently been handed down by Lane P: R (Mujahid) v FtT & SSHD [2020] UKUT 85 (IAC) and MY (Pakistan) [2020] UKUT 89 (IAC). In both notes, the focus was on the latter of these decisions. The respondent sought to submit that MY (Pakistan) supported the argument she advanced with reference to Ahsan . The applicant submitted that the respondent had made an important and far-reaching concession in the short note handed up at the hearing and that the position considered in Lane P’s decision must be taken to have been superseded as a result of that concession. 75. It was as a result of these notes – and particularly that filed by the applicant – that I requested a copy of any written arguments which were filed by the respondent in Shrestha [2018] EWCA Civ 2810. The written submissions settled by Mr Thomann of counsel were sent by email on 17 April 2020.