Nearly three years after the main appeal provisions of the Immigration Act 2014 commenced, the Upper Tribunal has turned its attention to the question lying at the heart of almost all appeals lodged since then: what is a human rights appeal anyway?
There are two new cases which more or less confirm we’ve all been on the right track all along. Luckily.
Immigration Act 2014 and human rights appeals
The Immigration Act 2014 introduced a new system of “immigration” appeals. Apparently so that a government press release could be issued stating that the grounds of appeal were being reduced from 17 to four, the old, clear system of appeals was replaced with a new, mysterious one. Previously, where a decision was not in accordance with the law or rules, a judge could say so and allow an appeal. Not so, or at least not obviously so, under the new system.
The Immigration Act 2014 amended the appeals provisions of the Nationality, Immigration and Asylum Act 2002. This isn’t the place for another full exposition of how the new sections 82 and 84 of the NIAA 2002 operate: you can get that from our course if you need it.
What is a human rights claim?
There is still an awful lot that needs unpicking about what is or isn’t a human rights claim, but in Baihinga (r. 22; human rights appeal: requirements)  UKUT 90 (IAC) the tribunal has made a decent if flawed start. In the modern age of litigants in person and in a jurisdiction where one of the parties tells the other party whether there is a right of appeal or not, there is a need for crystal clear and simple guidance from the tribunal on these admittedly very complex issues. We do not really get that type of clarity here, unfortunately.
The appellant in this case previously held indefinite leave to remain (ILR) in the UK but it lapsed when she stayed outside the country for more than two years. She applied for a visa to return to the UK under the “returning resident” rule (we covered this previously here: The case of Irene Clennell and the rules on returning residents with ILR). She did not explicitly mention any human rights claim.
The application was refused by an Entry Clearance Officer. The appellant attempted to appeal and sent in a notice of appeal to the tribunal. She also travelled to the UK and entered with temporary admission.
The notice of appeal was accepted by the tribunal and a hearing was listed. However, the tribunal decided that the appellant had not mentioned human rights and had therefore not made a human rights claim. On this basis, the appeal was declared invalid.
The appellant attempted to appeal this decision but Acting Resident Judge Appleyard (as he then was) refused permission on the basis that, because there was no valid appeal, permission could not be granted. The only available remedy was said to be an application for judicial review.
A further application for permission to appeal directly to the Upper Tribunal was ultimately successful.
Determinations on invalidity can be appealed
The Upper Tribunal begins by making clear that Judge Appleyard had been wrong to hold that a determination finding the appeal invalid could not be appealed. This should have been clear from Court of Appeal authority including JH (Zimbabwe) v Secretary of State for the Home Department EWCA Civ 78 as well as tribunal authority such as Abiyat & others (Rights of appeal)
The short version is that where the tribunal declares an appeal invalid by way of an initial rule 22 invalidity notice, then there is no right of appeal against that. An application for judicial review would be needed. If the tribunal looks at validity and issues a determination, though, there is a right of appeal against that.
Human rights claims can be bare and explicit
The Home Office thinks it is not enough for a person to state “this is a human rights claim” in order for their application to be a “human rights claim” within the meaning of section 82. On this Home Office analysis, even an application headed “Human Rights Claim” would not always be a human rights claim if “nothing more is provided than a bare statement of this sort”.
The tribunal’s preferred approach would at least offer more certainty. One of the biggest problems with the appeal regime introduced by the Immigration Act 2014 is that it is not clear whether there is a right of appeal in the first place. This can cause a person to lodge an appeal only to find out many months and many legal expenses later that there was no valid appeal.
Human rights claims can be implicit
On the facts of the case, no explicit human rights claim was made but there were elements of the case that potentially raised human rights type arguments around private and family life. Was this a human rights claim?
In an earlier case, R (On the Application Of AT) v Secretary of State for the Home Department  EWHC 2589 (Admin), Mr Justice Kerr had accepted the concept of implicit human rights claims (Free Movement write up: Domestic violence cases can attract a right of appeal, says High Court). No reference was made by the Upper Tribunal to this earlier decision, however.
Second edition ebook on the Immigration Act 2014 covering commencement, removal powers, new rights of appeal, new enforcement and detention powers and more.
The Home Office guidance accepts that applications under most paragraphs of Appendix FM constitute human rights claims and the words “human rights claim” do not need to be used on an application for it to actually be a human rights claim. The Home Office official presenting the case had argued there was no human rights claim in this case and therefore no right of appeal. The First-tier Tribunal agreed. The Upper Tribunal disagrees and finds that there was a human rights claim.
What is a refusal of a human rights claim?
Imagine a scenario where an implicit human rights claim is made in an application which the tribunal later adjudicates did on the facts raise human rights issues. Perhaps unsurprisingly given that human rights were not mentioned in the application, the application was refused without any reference to human rights. There was a human rights claim, but has there been a refusal of a human rights claim such as would generate a right of appeal?
The answer is probably “yes”, although the tribunal is not crystal clear about that.
In this particular case, the Entry Clearance Officer did not mention human rights at all but the Entry Clearance Manager did explicitly consider human rights and refuse on that basis. The decision which may or may not be appealable is that of the ECO but the tribunal comments that the ECM review may “be seen as casting light on what the entry clearance officer had been doing when she refused the appellant’s application”.
It would be far simpler just to accept that if a human rights claim is made in an application, implicitly or explicitly, and the application is refused, then this is a refusal of a human rights claim.
What is a human rights ground of appeal?
The second case, Charles (human rights appeal: scope)  UKUT 89 (IAC), arose from an appeal being allowed by an immigration judge on the basis that a deportation decision was “not in accordance with the law”. This is not one of the grounds that is available in the immigration appeals regime introduced by the Immigration Act 2014.
As an aside, the facts were interesting: the appellant resisted deportation on the basis of the exemption from deportation for long-term resident Commonwealth citizens at section 7 of the Immigration Act 1971. If the appellant could prove he had entered the UK before 1 January 1973, he was exempt from deportation and the appeal would be allowed. The First-tier judge accepted that the appellant had arrived before 1 January 1971 and the Home Office did not challenge this finding.
Under the old appeal regime it was clear that the tribunal had jurisdiction and how that jurisdiction could be exercised. How would such a case be handled, if at all, under the new regime?