This decision brings further detriment to applicants relying on the domestic violence rules to obtain leave to remain. The result is that the Home Office can dictate the manner in which a human rights claim must be made so as to provide consideration and, if refused, to give rise to a statutory right of appeal. On the other hand, an assessment of whether a claim constitutes a human rights claim, as defined in statute by section 113 of the Nationality, Immigration and Asylum Act 2002, is not legally determinative. However, the Home Office guidance is broadly compatible with what the High Court in Alighanbari  EWHC 1818 (Admin) has found to be the minimum elements of a human rights claim. MY, the Pakistani appellant, born in 1982, entered the UK in 2014 with limited leave to remain as the spouse of a person present and settled in the UK, whom he had married in Pakistan in November 2012. Prior the expiry of his leave, his marriage broke down irretrievably and he thus applied under Appendix FM of the Immigration Rules for leave to remain as a victim of domestic violence using form (SET)(DV) which failed to invite him to say whether there was any other reason why he might be entitled to leave to remain. However, a covering letter of representation described how his wife and in-laws in the UK mistreated him and said he had suffered psychological, physical, financial and emotional abuse as well as controlling and coercive behaviour.
A medical report diagnosed MY as suffering from depression. Its author noted that MY was fearful that if he returned to Pakistan, he would be more vulnerable both mentally and psychologically. This was referable to “direct and implied threats made to him during his domestic abuse. Such fear of imminent mortal danger, having some basis in reality, superimposed on his tendency to be anxious and low, might prove extremely detrimental to his fragile mental health.” Notably, MY had provided his witness statement with his application and in it he expressed fear that if he returned to Pakistan “I have potential threaten of being murder (sic) in Pakistan by my in-laws”. The decision-maker said that any submissions he may have made relating to his human rights were not considered, as an application for settlement as a victim of domestic violence is not considered to be a human rights based application. He was therefore informed that if he wishes to apply for leave to remain, based upon his human rights or other compassionate practice it was open to him to apply using the appropriate application form. The ILR application on the basis on domestic violence was not to be conflated with a human rights based application, with the upshot that the decision-maker did not have to consider any human rights claim.
The Appeal to the FTT
MY appealed arguing that the decision amounted to a refusal of a human rights claim and that he appealed on the basis of his proposed removal to Pakistan is unlawful under the HRA 1998. He relied upon the judgment in R (AT)  EWHC 2589 (Admin) which was a judicial review case (discussed here).
It was further submitted that if MY were correct and he could meet the provisions of the rules as a victim of domestic violence, this would be a “weighty factor” in support of his human rights claim. FTTJ Kelly held that for there to be a right of appeal under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002, the Home Office must accept the application in question as constituting a human rights claim within the meaning of section 113, and then refuse it. If both of those things are present, then a statutory right of appeal exists. If the decision-maker explicitly declines to treat the application as being a human rights claim, then the remedy is to seek judicial review.
FTTJ Kelly concluded that the FTT did not have jurisdiction to hear the appeal because it was brought in respect of a decision that was not an “appealable decision” within section 82 of the 2002 Act.
The Upper Tribunal
The UT examined R (AT), R (Shrestha)  EWCA Civ 2810, Balajigari & Ors  EWCA Civ 673 (discussed here and here), the Rights of Appeal (version 7.0) guidance and the Applications for leave to remain: validation, variation and withdrawal (version 2.0) guidance and then it dismissed MY’s appeal. Lane J and UTJ Norton-Taylor held 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  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.
The approach taken by the presidential tribunal is quite strident because in R (AT) it was Kerr J’s judgment that the SSHD was “perfectly entitled” to enact delegated legislation to remove the right of appeal from victims of domestic violence in immigration cases whose claims were not human rights claims, and replace the right of appeal with administrative review. On the other hand, it was plain that that did not mean that she could remove the right of appeal for domestic violence claims that were also human rights claims.
Albeit in vain, MY had argued that the legislative scheme does not permit the decision-maker to make an evaluative judgment about whether there has been the refusal of a human rights claim because Parliament has chosen not to define what is meant by the refusal of a human rights claim. If, faced with a human rights claim, the Home Office chooses not to respond to it, that is just a matter of choice, (the decision-maker’s own problem), as the decision has to be treated as having refused the human rights claim. Overall, it was wrong of the Home Office to respond to a human rights claim by stating that it does not suit the decision-maker to consider that claim. The position would be different if an invalid application had been submitted which was not MY’s situation.
The government argued that human rights claims must be made in the appropriate form and supported by the requisite fee to improve consistency. Moreover, the demand for fee payment for applications falls to be read in the light of the provisions for fee waiver in respect of impecunious applicants. Finally, the Home Office has an obligation, recognised in Shrestha, in any event to consider a human rights claim, whether made in a particular form or not, prior to actual removal of an individual from the UK. The judgment in R (AT) recognised that not all domestic violence claims are necessarily also human rights claims. Kerr J’s observations at paragraphs 48 and 49 of his judgment must be considered with caution. The point there at issue was not, as Kerr J observed, fully argued before him. Furthermore, his judgment now has to be read in the light of Court of Appeal judgments in Ahsan  EWCA Civ 2009 and Shrestha and had Kerr J been able to review the Guidance: Applications for leave to remain: validation, variation and withdrawal this would have alleviated his concerns.
Against that MY made the counterpoint that Shrestha and Balajigari involved a different issue entirely from his case. Those cases were concerned with what the position would be regarding a human rights claim raised only after an initial application for ILR was made, i.e. they were clearly instances where no human rights claim was raised in the original ILR application. Indeed in Balajigari it was explained by Underhill LJ at para 99 that in circumstances where the applicant included a human rights claim in the original Tier 1 (General) ILR application no reason in principle was evident why an applicant should not complete that box in that alternative so as to raise a human rights claim. His Lordship said that the point may also be capable of being raised in the covering letter and those who did so would be in a position to appeal against a refusal of their human rights claim.
However, the UT examined the authorities and interpreted them against MY. The Home Office’s position was that refusing leave to remain by merely referring to the domestic violence rules was not a refusal of a human rights claim. The UT said that the starting point is the statutory wording. In the absence of a statutory definition of a refusal of a human rights claim, ordinary principles of statutory interpretation to the words used in section 82(1)(b) need to be applied. Accordingly, that is at least strongly suggestive that there must have been engagement with the claim the result of which must have been to “refuse” the claim. A decision to refuse a human rights claim requires the decision-maker to reach a decision that the person concerned does not have a case for remaining in the UK by reference to his or her, or anyone else’s, human rights. The use of the word “refuse” indicates that the legislature did not intend to cover those cases where the official position is that the decision-maker will not consider the claim, a point forcefully made by FTTJ Kelly. Such an analysis of the statutory language gave rise to the inescapable point that MY’s case faced serious difficulties at its outset and the decision-maker could not have been clearer in their view that any submissions made relating to his human rights were not considered because an application for settlement as victim of domestic violence is not considered to be a human rights based application and an application based on human rights or other compassionate factors must be made on an appropriate application form.
Domestic violence victims generally find themselves in an invidious position and usually they are people who have been treated slavishly and have no status, no money, no place to stay and no-one who they can trust. To require them to make two separate applications to make two separate claims (one on the basis of domestic violence, the other on the basis of their human rights) is supremely bureaucratic. The UT’s decision in MY’s case also puts victims into even more hardship by making judicial review the only real redress against domestic violence refusals because such proceedings are expensive, relief is discretionary, and the judicial review claim is generally limited to the circumstances as they stood at the date of the decision (which contrasts with the position in an appeal to the FTT against the refusal of a human rights claim). Quite apart from such technical difficulties, this decision sends a clear message in favour of the infamous “hostile environment” (now “compliant environment”) created by Theresa May and her “flagship” Immigration Act 2014 one of whose casualties was the right of appeal against the refusal of a domestic violence ILR application which was deleted from the statute book for good. From 6 April 2015, the right of appeal to the FTT was replaced by a right of administrative review.
In any event, to have two separate sets of legal proceedings (one for the purpose of a human rights appeal and other in the form of a complicated judicial review) cannot be great for legal certainly and cases are likely be protracted and will drag on lengthily without timely resolution.
In her COVID-19 press conference on 11 April 2020, Priti Patel outlined her support for domestic violence victims. She said that the increase in those seeking help for the hidden crime of domestic abuse is “extremely concerning” and further stated that “anyone who is a victim of these crimes can still get help.” Perhaps Patel should restore appeal rights for domestic violence claims if she really means what she is saying.