Human Rights Claim from Inside and Outside the UK | Asylum
This post relates to human rights application UK visa claim and covers the following topics:
- A) Human rights application for leave to remain under the Immigration Rules;
- B) Human rights application for leave to remain Outside the Immigration Rules;
- C) Applications under the Immigration Rules | Outside the UK;
- D) Applications Made Outside the Rules from Overseas;
Human Rights Application For Leave to Remain
Inside the UK, following types of human rights applications can be made under the Rules with a right of appeal against a rejection decision.
However, in case Para 353 (i.e. further submissions) applies, and further submission(s) does not amount to a fresh claim or if the claim is certified u/s 96, then there is no appeal right against the rejection/ refusal decision, and if certified either u/s 94 or u/s 94B then there is no right of appeal until an applicant has left the United Kingdom.
Leave u/s 3C of Immigration Act 1971
Applications can be made while an applicant has a leave u/s 3C of the Immigration Act 1971 as a result of an ongoing appeal against refusal of another application.
No other applications under the immigration rules other than those listed below can be made by the applicant, who is on a 3C leave. If the applicant withdraws his/her appeal, then he/she will no longer be prevented from making any other application under the immigration rules. Alternatively, an applicant may make an application once his/her appeal rights are exhausted.
Category of Application and relevant Immigration Rule
- Long Residence – Paragraph 276B;
- Private Life – Paragraphs 276ADE(1) or 276DE;
- Partner or Child of a Member of HM Forces – Paragraphs 276U & 276AA;
- Partner/Child of a member of HM Forces – Paragraphs 276AD and 276AG – where the sponsor is a foreign/Commonwealth Member of Her Majesty’s Forces and has at least four (4) years’ reckonable service in Her Majesty’s Forces at the date of application;
- Part 8 of these Rules (Family Members) where the sponsor is present and settled in the United Kingdom or has refugee/humanitarian protection in the UK. But not under paragraphs 319AA to 319J (PBS dependants), paras 284, 287, 295D or 295G (sponsor granted settlement as PBS – Points Based System Migrant);
- Asylum – Part 11;
- Part 4 or Part 7 of Appendix Armed Forces (Partner/Child of a member of Her Majesty’s Forces) where the sponsor is a British Citizen or has at least four (4) years’ reckonable service in Her Majesty’s Forces at the date of application;
- Appendix FM (Family Members) But not: section BPILR (bereavement) or section DVILR (domestic violence)
Types of Refusal Letters – Asylum (except deportation cases)
- Refusal of Protection with a right of appeal/S96 option to certify – ASL.0015.ACD.IA;
- Refusal of Protection when an applicant failed to attend the screening interview – decision not certified – ASL.1000.IA;
- Protection Refusal of dependents/S96 option – ASL.1006.IA;
- Refusal of Protection certified u/s 94 – ASL.1956;
- Rejection of further submissions – paragraph 353 – ASL.2704;
Types of Refusal Letters/Notices – All other Human Rights Applications
- Refusal with a Right of Appeal – ICD.3050.IA;
- Refusal with S94 Certification – ICD.1182.IA;
- Refusal with no appeal because a fresh claim was not made under paragraph Rule 353 – ICD.3051.IA;
- Refusal with no appeal due to S96 certification – ICD.3052.IA;
Applications Outside the Rules from Inside the UK
Applications for a leave to remain outside the rules on human rights grounds are made on forms either FLR(O) for further leave to remain or SET(O) for indefinite leave to remain (ILR).
It is relevant to note that these forms can only be used for a human rights application when there is no other specific form is available. For instance, neither the FLR(O) nor the SET(O) could be used for submitting applications either under Appendix FM or on the private life route in terms with paragraphs 276ADE and 276DE. Where the applicant uses an incorrect form, the application is likely to be rejected as invalid as per paragraph 34 of the Immigration Rules.
FLR(O) and SET(O) are multi-purpose forms and not all the applications that are made on these forms are for making human rights claim.
The FLR(O) and SET(O) forms require an applicant to tick a box indicating which application an applicant is using the form for. An applicant can only tick one box.
It is only where the applicant ticks at ‘Other purposes or reasons not covered by any other application forms’ that it is treated as a human rights claim. Even if this box is ticked/clicked, the application may not be a human rights claim as following three (3) questions needs to be considered:
- Does the application say that it is a human rights claim?
- Does the application raise such issues that may amount to a human rights claim even though it does not expressly refer to either human rights or a human rights claim?
- Are the matters raised capable of engaging human rights?
1. Is a Human Rights Claim Made?
For the purposes/objectives of Part V of the Nationality, Immigration & Asylum Act 2002 (appeals in respect of Protection & Human Rights Claims), a human rights claim is defined as under: ‘
‘a claim made by a person that to remove him/her from or require him/her to leave the United Kingdom or to reject/refuse him/her entry into the United Kingdom would be unlawful u/s 6 of the Human Rights Act – 1998.’
The application form does not ask an applicant to indicate whether or not the claim being made is a human rights claim. Therefore, during the application assessment process, it will be identified i.e. whether a human rights claim is made or not in the application. Accordingly, the immigration office may serve:
- either a s.120 notice on receipt of the application;
- or a refusal that will attract a right of appeal.
2. Does the Application Raise Issues?
Does the application state this is a human rights claim? If so, then it will be evaluated that does the application set out why this is a human rights claim? An applicant may say no more than:
- ‘I am making human rights claim.’
- ‘It is a breach of my human rights under Article 8 not to grant me an indefinite leave to remain (ILR).’
If an applicant provides nothing more than just a bare statement like those mentioned above, then it cannot be considered as a human rights claim and is refused with no right of appeal. Therefore, for a claim to be considered an applicant needs to particularise a claim.
For an applicant to raise human rights, it is not essential/necessary to say so on the application form. If the application does not specifically state that it is a human rights claim, then the evaluating officer may consider the reasons raised by an applicant to remain in the UK and would accordingly decide whether or not the reasons stated by an applicant amount to a human rights claim. For instance:
- if an applicant seeks to have a leave to remain on medical grounds, so as to receive medical treatment or the applicant has a fear of return or of an undignified death because medical facilities in applicant’s home country are unavailable, inaccessible, unaffordable or of a lower standard than the UK, then this is usually considered as a medical claim under Article 3 and Article 8;
- if an applicant states/declares that he/she is engaged in court proceedings and needs to remain in the United Kingdom for conducting them or to appear as a witness, then this is typically considered as an Article 6 claim;
Since applicants may raise any factors in any combination, therefore, it is not possible to provide a full list of facts that might amount to a human rights claim.
For making a human rights claim, an applicant may ascertain whether or not his/her claim falls under the human rights protected by ECHR – European Convention on Human Rights.
3. Are human rights engaged?
If an applicant has raised a claim for human rights, then it is considered and evaluated that whether the claim made the applicant is capable of engaging the human right that the applicant has relied on in the application. This requires examination of the merits of the claim.
If an applicant has made no human rights claim then the application is normally refused with a no right of appeal and no right to seek an administrative review and Notice ICD.4985 is served.
Notices to be served
If the claim made by the applicant does engage the human right relied upon, then it is construed that a human rights claim have been made. If the claim is refused, then an appropriate notice needs to be served (except in deportation cases):
- Refusal with a Right of Appeal – ICD.3050.IA;
- Refusal with s.94 Certification – ICD.1182.IA;
- Refusal with no right of appeal because a fresh claim is not made under paragraph 353 – ICD.1182.IA;
- Refusal with No Right of Appeal due to s.96 certification – ICD.3052.IA;
In the UK: Applicant is Detained
If an applicant is in detention, then any human rights claim must be directed to a prison officer, a detainee custody officer, a prisoner custody officer, or a Home Office staff at migrant’s place of detention.
There is no requirement of either completing any specific form or following a specific process. In a case when removal is imminent, then it is quite likely that an applicant may not be required to pursue a formal process for making a claim.
The individual to whom the claim is made is required to pass the submissions made to a member of Home Office staff so as to consider whether or not a human rights claim has been made by the applicant.
Notices to be served
If it is established that a human rights claim has been made, then its refusal attracts a right of appeal. If removal is imminent, then consideration is required to be given to certification of the claim either u/s 94 (clearly unfounded) or u/s 96 (late claim). An appropriate notice is served (except in deportation cases):
- Refusal with a Right of Appeal – ICD.3050.IA;
- Refusal with s.94 certification – ICD.1182.IA;
- Refusal with No Right of Appeal because a fresh claim is not made under paragraph 353 – ICD.3051.IA;
- Refusal with No Right of Appeal under s.96 certification – ICD.3052.IA;
Application under the Rules from Outside the UK
The following claims under the Immigration Rules are human rights applications, and there is a right of appeal against refusal.
Immigration Rule (Category of application)
- Partner or Child of a Member of Her Majesty’s Forces – Paragraphs 276U and 276AA;
- Partner or Child of a Member of Her Majesty’s Forces – Paragraphs 276AD and 276AG where the sponsor is either a foreign or a Commonwealth member of Her Majesty’s Forces and has at least four (4) years of reckonable service in HM Forces at the time of the application;
- Part 8 of the Rules (Family Members) where the sponsor is present and also settled in the United Kingdom or has refugee/humanitarian protection status in the United Kingdom. But not: paragraphs 319AA to 319J (PBS dependents), Paras (281- 283), (sponsor granted settlement as PBS Migrant);
- Part 4 or Part 7 of Armed Forces – Appendix (partner/child of a member of Her Majesty’s Forces) where the sponsor is a British Citizen or has at least four (4) years of reckonable service in HM Forces at the time of the application;
- Appendix FM (Family Members) But not including either Section DVILR (Domestic Violence) or Section BPILR (Bereavement);
Applications Made Outside the Rules from Overseas
Entry clearance Applications from outside the UK, based on human rights claim, which are outside the Immigration Rules forms part of a valid application for an entry clearance.
As listed above there are forms available for human rights applications under the immigration rules. In case an applicant is neither able to find an appropriate form nor believe that she/he meets the conditions of the immigration rules, then the applicant may complete the visitor form (VAF1 A-K).
The Part 9 of a visitor form allows an applicant to provide any other information that should be considered as part of an application. Such information can also include a claim for human rights for which leave is required to be granted outside the immigration rules.
Decision-Making Process | Part 9 of the Visitor Visa Application and Asylum Claim
A human rights claim made in Part 9 of a visitor application is considered by the assessment office that whether or not a human rights claim has been made by an applicant.
If a human rights claim is made, then it considered substantively and decided whether the claim might be refused or granted.
If an application can be refused for obvious reason, then it is usually dealt with at the post. An Entry Clearance Officer can refuse an application outside the Immigration Rules. The refusal of a human rights claim attracts a right of appeal.
If an application has merit and may likely to be granted, then the ECO refers such an application to Referred Cases Unit (’RCU’) since an ECO cannot grant an application outside the Immigration Rules.
Have a human rights claim been made?
The visitor visa application form does not require an applicant to indicate whether the claim being made by an applicant is a human rights claim. Therefore the ECO needs to identify whether or not a human rights claim has been made.
It is quite important that a careful consideration may be done to ascertain whether or not a human rights claim has been raised by an applicant. If it is determined that an applicant has not made any human rights claim, then the refusal of the application does not attract an appeal right.