For a while now, the case of MY (Pakistan) [2021] EWCA Civ 1500 has been pending before the Court of Appeal. The appealed decision, made by the Upper Tribunal (IAC) on 17 February 2020, removed the right to a statutory appeal where the Home Office had not considered any human rights arguments raised in an immigration application.
On 15 October 2021, the Court of Appeal endorsed that position, albeit with slightly different reasoning.
This decision affects all non-human rights based applications for leave to remain in the UK. Broadly, these will be applications under the various 'PBS' routes (in their new guises) and applications made by bereaved and abused partners. It is the latter category that will be focused on below.
For some time, the Home Office have maintained that applications for ILR, made by bereaved and abused partners, are not human rights applications and therefore do not attract a statutory right of appeal under s82 NIAA 2002. MY challenged this on the basis that a refused application which raises human rights is a refusal of a human rights claim regardless of whether the Home Office considered the human rights claim. It was this submission which was the focus of the Court of Appeal.
Very briefly, the Court of Appeal found that the Home Office can lawfully refuse to consider a human rights claim made as part of a different application. The refusal to consider does not amount to a refusal of the claim. The Court of Appeal held that an application for ILR as a bereaved or abused partner was not a human rights claim. The applications are, respectively, distilled into the statements "I am the bereaved partner of a British or settled national" or "My relationship with a British or settled partner broke down because of domestic abuse." Neither statement, the court said, touches upon a person's human rights.
The Court of Appeal acknowledged that many applications for ILR under these two routes would raise human rights grounds – there may be children from the relationship, many years of residence in the UK or serious risks upon return to the applicant's home country – but these matters could all be raised in a separate application or following a s120 One Stop Notice.
MY focused on the lawfulness of the Home Office's refusal to consider his human rights claim. The Court of Appeal confirmed that the Home Office can lawfully refuse to consider a human rights claim made as part of an ILR application as a bereaved or abused partner. However, they perhaps also suggested that the lawfulness of the Home Office's 'one-at-a-time' policy for applications could be challenged by the right Judicial Review.
Practically speaking, if you are considering an application as a bereaved or abused partner, or if you are representing someone in this difficult position, you will need to think seriously about whether you apply for ILR, or limited leave to remain on a human rights basis.
It is unarguable that ILR is a better status when compared with limited leave to remain. However, if the evidence available is weak, circumstantial or heavily reliant on the applicant's own testimony, it might just be better to take the 'safe' route and apply for limited leave. An application for ILR, if refused, will not be appealable, and protecting the applicant's leave to remain and right to work will not be possible.
Representatives should consider making urgent subject access requests to see if any aspects of a raised human rights claim were considered. The Court of Appeal were clear on this point, should the Home Office consider a human rights claim made as part of a separate application, the refusal WILL result in a statutory right to appeal. So if you do choose to apply for ILR make sure you make a human rights claim as part of the application just in case the Home Office do consider it.