Case No. UKUT-00222-(IAC)

[2020] EWCA Civ 542. The ‘battery of provisions’ described in that judgment were largely brought about by the Immigration Act 2014. What Beatson J considered to be a ‘half-world’ is now even less of an existence, and it is a position to which these applicants (adult and child alike) are confined by the unlawfulness of the respondent’s actions. 119. I consider it to be at this point that Mr Mackenzie’s reliance on section 55 of the Borders, Citizenship and Immigration Act 2009 bites. It is difficult to see how that the respondent can be said to have regard to her statutory obligation to safeguard and promote the welfare of children when children such as the third, fourth and fifth applicants are confined to the hostile environment as a result of the respondent’s adoption and application of a fee waiver policy which fails to reflect the affordability test properly or at all. I recognise, as did Mr Mackenzie, that the children have existed in that environment for some years, as a result of the decision made by the first and second applicants to overstay and found a family whilst in the UK unlawfully. But their parents subsequently made an application to regularise their position in the UK and were entitled to consideration of that application at public expense if they were genuinely unable to afford the requisite fee. It is the erection of an improper obstacle to that consideration, in the form of an unlawful policy, which means that the children are not entitled to consideration of their applications ‘forthwith’ and must instead wait for consideration of their human rights claims in the fulness of time. 120. I am, in any event, concerned by the efficacy of the safety net relied upon by the Secretary of State. If it is to be submitted that individuals who have not made an effective application for leave to remain on human rights grounds are protected from removal because they have nevertheless made a human rights claim, that protection must not be arbitrary or elusive. It is necessary to recall the point in time at which it was made clear to these applicants that they were accepted to have made a human rights claim which safeguarded their position. That was not said in the decision under challenge. In fact, they were given precisely the opposite indication, with the decision stating that they were liable to be removed from the UK. They were not told expressly in the response to their Letter Before Action that they were accepted to have made a human rights claim. Nor did the respondent make that clear in the further correspondence to which I have alluded above. Whilst the claim was afoot, the respondent did not state in the summary grounds, the detailed grounds, or even in the skeleton argument prepared for the hearing, that the applicants were accepted to have made a human rights claim. That acceptance came orally and in writing after lunch on the day of the hearing. 121. This seems to be a feature shared with the reported decisions I have considered above. It was seemingly only in the course of litigation before the Court of Appeal in Ahsan and Shrestha that the respondent accepted in terms that the applicants in those cases had made human rights claims which engaged s113 of the 2002 Act. 122. Consider, therefore, the position of the individual and their legal advisers upon receipt of a notice such as that received by the applicants in this case. The notice states that the application for leave to remain has been treated as invalid because it was not accompanied by the requisite fee. It states, in bold, that the individual is liable to be removed from the United Kingdom. It gives no indication whatsoever that a human rights claim is nevertheless accepted to have been made. Against the backdrop of the authorities above, what advice might legitimately be given to the claimant, who is naturally concerned that they might be removed imminently from the United Kingdom? Are they to be reassured that there was nevertheless a human rights claim and that they cannot be removed until it is considered? A right-thinking client may find that advice difficult to accept, given the contents of the respondent’s letter. Or are they to be advised, contrary to what might actually be the respondent’s underlying position, that there was no valid application for leave to remain and no human rights claim, such that they are at imminent risk of removal action being taken? 123. Individuals such as the applicants find themselves in an uncertain situation upon receipt of a notice such as the decision under challenge. They have received no chit reassuring them that their human rights claim will be considered and that their position in the UK is protected until then. They cannot know with any degree of accuracy whether they are accepted by the respondent to have made a human rights claim or not. Externally, therefore, there is a lack of clarity in the respondent’s position. I am also concerned that there is a lack of clarity internally, within the department itself. It is wholly unclear to me why it was that the respondent only accepted at the eleventh hour that a human rights claim had been made in this case. Nor do I understand the point at which the respondent recognised that there had been a human rights claim. Has that always been the (previously undisclosed) position, or was it only accepted to be the position at some point on the day of the hearing? If this claim had not been underway, could the applicants have been removed without consideration of the human rights claim which is now accepted to have been made? It is not possible to say, and the lack of clarity in these regards must call into question the extent of the protection relied upon by the respondent. I note that Mr Gallagher’s statement is silent on these important questions. 124. That leads me to a further point, which concerns departmental recording of applications for leave to remain and human rights claims. The respondent obviously has a record in this case that the applicants attempted to make an application for leave to remain, and that the application was rejected as invalid because it was not accompanied by the requisite fee. The notice states, as I have noted more than once already, that the applicants are liable to be removed from the United Kingdom. If the position is actually that they are not liable to be removed from the United Kingdom because it is accepted that they have made a human rights claim, it is not clear to me how this is reflected internally. I asked Sir James Eadie QC how individuals such as these applicants (who have not made a valid application for leave to remain but have made a human rights claim) are identifiable to a subsequent caseworker, who might come to consider the cases, pre-removal, months or years hence. There might be no external acceptance, communicated to the applicant, that there is a ‘barrier to removal’ but is there, I enquired, some internal system by which this is clearly identified? He was unable to give any indication of the mechanism by which this identification might take place. 125. It would be all too easy, in my judgment, to dismiss these concerns by stating that there is a record, not only in the respondent’s note but also in this judgment and in the files of the applicant’s solicitors, to show that the respondent has accepted that these applicants have made a human rights claim and that they cannot be removed until it has been considered. In this case, that is undoubtedly correct. Were the respondent to seek to remove these applicants without considering the claim which is accepted to have been made, their representatives would surely take action to prevent that course. But there will be many such cases in which potentially vulnerable applicants are not legally represented and it cannot simply be assumed, in the absence of any indication about the mechanism for identifying such cases, that the human rights of individuals in this position will be safeguarded by their having made a human rights claim at some point previously. 126. In summary, therefore, I do not accept that the submissions made by the respondent in reliance on Ahsan and subsequent authorities provides any answer to the submissions made by Mr Mackenzie regarding the policy or the decision in this case. That line of authority (or the position adopted by the respondent within it) has not removed the basis upon which Omar and Carter were decided. If, as I have concluded, the respondent’s policy on fee waiver is unlawful, it is no answer to submit that an applicant whose application for leave to remain is improperly rejected in reliance on that policy might nevertheless wait for the respondent to consider her human rights claim in the fulness of time. Such a solution confines an applicant to the hostile environment improperly and indefinitely, which is unjustifiable in the case of an adult applicant and contrary to the best interests of a child applicant. In any event, it is for the respondent to show that a person whose application for leave to remain is rejected is nevertheless protected effectively from removal by the acceptance that they have made a human rights claim under s113 of the 2002 Act. No such acceptance is communicated to the individual. It is unclear whether any such acceptance is recorded internally and, if it is, at what stage and by what means. If the respondent’s submission is that decisions such as the present can never be incompatible with the ECHR because individuals such as the applicants will not be removed without consideration of their human rights, the evidence before me does not support the existence of that protection and the respondent’s late adoption of that stance in this case and others calls it positively into question. 127. It was submitted in the post-hearing note filed by Mr Mackenzie that the respondent’s position in relation to the making of a human rights claim had changed since Shrestha and MY (Pakistan) . The respondent maintained that there has been no change in her position, and that the note handed up during the hearing merely replicated her stance in the earlier cases. As will be apparent from the conclusions I have drawn above, I have not considered it necessary to resolve those competing submissions. As requested by Mr Mackenzie, I have reproduced the respondent’s note in full in case it might be of significance in future cases. Whilst it is not material to my decision, my conclusion on the competing submissions is as follows. 128. The submission made by Ms Giovannetti at [14] of Ahsan comprised three parts. Firstly, an acceptance that a human rights claim was not required to be made in the form of a fee paid application under the Rules. Secondly, that a human rights claim ought however to be made by way of a formal application for leave to remain and that priority would be given to claims made in that way. Thirdly, that even if a human rights claim was made in some other way, a claimant would not be removed until it had been considered. 129. These elements were also present in the submissions made by Mr Thomann, on behalf of the Secretary of State, in Shrestha . As noted, I was helpfully provided with the written submissions made in that case upon request. Paragraph [14] of Ahsan was cited at [20] of Mr Thomann’s written submissions. At [21], he submitted that the respondent had acted lawfully in requiring the applicant to make his application for leave to remain in compliance with the Immigration Rules. Immediately thereafter, at [22], the respondent’s submission was: It is accepted that the Secretary of State is not actually able to remove the Appellant without, in due course, considering his claim to remain under Article 8 of the Convention (see Ahsan , at [14]). 130. With respect, [33] of Hickinbottom LJ’s judgment reflects these submissions precisely. That paragraph (which I have reproduced above) begins by noting the respondent’s acceptance that she could not remove the applicant without considering his human rights claim and ends by concluding that the applicant would not suffer injustice as a result of the Secretary of State “refusing to consider his human rights claim at this stage”. Mr Mackenzie is therefore wrong to submit, at [12], of his post-hearing note, that the respondent adopted a position in Shrestha whereby she was not obliged to consider a human rights claim which had been made in the wrong form ‘at all’. As is clear from the excerpts above, her position in Shrestha was to accept that a human rights claim had been made, and that it would have to be considered before removal, but that she was not required to “treat and determine” that human rights claim as an application for leave to remain on human rights grounds. So it was that the respondent submitted that the notification of a human rights claim in response to a notice under s120 of the 2002 Act could not amount to an application for leave to remain under the Immigration Rules. 131. Nor do I consider the respondent’s submissions before me to be inconsistent with her stance in MY (Pakistan) . She accepted in terms in that case that a human rights claim had been made: [53] refers. She maintained that she had not refused the claim because she had, instead, refused to engage with it because it had not been made in form of an application for leave to remain. There is no suggestion in the record of the respondent’s submissions or in the decision of the Tribunal, however, that the respondent had departed from the position in Ahsan , that she was required to consider the human rights claim which had been made at some indeterminate point prior to removal. 132. For the reasons set out at [1]-[126], I conclude that the respondent’s policy is unlawful and that the decision taken pursuant to it in this case was unlawful. This judgment will be handed down electronically due to the Covid-19 pandemic. I therefore invite written submissions on relief and the form of any order.