Human Rights UK visa application guidance and faqs 2019

Leave outside the immigration rules on human rights grounds

This provides an overview of the human rights UK visa applications under the Immigration Rules. And also discusses claims made on Form FLR(O) and Set (O) outside the Immigration Rules.

Moreover, for case processing and representation contact specialist UK immigration solicitors for challenging refusal decisions and reapplications.

So, what is a Human Rights UK visa application?

Apparently, for human rights applications made under the Immigration Rules, the starting position is that there is a right of appeal against refusal. However, if paragraph 353 (further submissions) applies and the further submissions do not amount to a fresh claim or where the claim is certified under section 96 then there will be no right of appeal. Moreover, if the application is certified under section 94 or 94B then the applicant has no right of appeal until the applicant has left the UK.

Implications of Section 3C of the Immigration Act 1971

In fact, an applicant can make a human rights applications even if he/she has a leave to remain in the UK under section 3C of the Immigration Act 1971 as a consequence of an ongoing appeal against the refusal of another application. Perhaps, no other applications under the rules other than the following types of applications can be made where the applicant has 3C leave. However, if an applicant withdraws the appeal then is no longer prevented from making any other application under the rules. Moreover, the applicant may make an application once the appeal rights are exhausted.

Human Rights UK visa applications under the Immigration Rules

In fact, the following claims made under the Immigration Rules usually attract a full right of appeal. Therefore, human rights UK visa applications under the Immigration Rules relates to:

  1. Appendix FM (family members), but not section BPILR (bereavement) or section DVILR (domestic violence)
  2. Family Members under Part 8 of Immigration Rules where the sponsor is present and settled in the UK or has refugee or humanitarian protection in the UK, not paragraphs 319AA to 319J (points-based system (PBS) dependents), paragraphs 284, 287, 295D or 295G (sponsor granted settlement as a PBS Migrant)
  3. Long Residence (276B)
  4. Private Life {276ADE(1) or 276DE}
  5. Asylum under Part 11 of Immigration Rules
  6. Partner or Child of a Member of HM Forces under Part 4 or Part 7 of Appendix Armed Forces, and paragraphs 276U, 276AA, 276AD, and 276AG

What if a Human Right UK visa application is refused?

Perhaps, if a human rights UK visa application is refused then the applicant may get a refusal with:

  1. a right of appeal
  2. section 94 certification
  3. no right of appeal as the claims is not a fresh claim under paragraph Rule 353
  4. no right of appeal because of section 96 certification

Moreover, if a human rights UK visa application relates to asylum then the applicant may get a refusal of protection claim:

  • with a right of appeal with an option to certify the claim under Section 96
  • where the applicant failed to attend the screening interview – a decision not certified
  • for dependents with section 96 option
  • certified under section 94

Perhaps, in case of asylum (except in deportation cases) the refusal may also relate to rejection of further submissions under paragraph 353.

What is a protection claim?

Indeed, a protection claim merely does not only include asylum claims but also claims from applicants who might fall outside the Refugee Convention. Such applicants may qualify for humanitarian protection as if removed from the United Kingdom these applicants might/would be at risk of serious harm, as enumerated in paragraph 339C of the Immigration Rules:

339CA. For the purposes of paragraph 339C, serious harm consists of:
(i) the death penalty or execution;
(ii) unlawful killing;
(iii) torture or inhuman or degrading treatment or punishment of a person in the country of return; or
(iv) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.

Therefore, revocation of a Protection Claim means that by removing the claimant from the UK, the government would breach the Refugee Convention and also its responsibilities under concerning persons eligible for humanitarian protection.

Moreover, an applicant may apply for a protection claim if the applicant has a leave u/s 3C of Immigration Act 1971 as a result of an ongoing and continuing appeal against the refusal of another application.

Furthermore, a person has a right of appeal under section 82 of Nationality, Immigration and Asylum Act 2002 against a refusal of protection and human rights claim. And also for the revocation of protection status.

When a person gets a protection status?

Apparently, a person has a protection status if a person has a leave to enter or remain in the UK as a refugee or if he/she is eligible for humanitarian protection. In fact, if a person who does not qualify for a refugee status then can be considered for humanitarian protection. However, if an asylum claim is granted, there will be no need to consider whether the applicant is eligible for humanitarian protection (HP) or not.

What if asylum claim refused but HP granted?

As a matter of fact, if an asylum claim is refused but humanitarian protection is granted, then there is a right of appeal against the refusal of asylum on the basis that the applicant ought to have been granted refugee status. Perhaps, this concedes the fact that the grant of refugee status renders more benefits to the applicant than those conferred by the grant of humanitarian protection. However, if an asylum claim results in a grant of refugee status, then the protection claim has succeeded at its highest level and accordingly there is no right of appeal on any other protection grounds.

Human rights UK visa applications outside the Immigration Rules

However, an applicant can also make a human rights UK visa application outside the immigration rules.

Forms for human rights visa applications from inside the UK

Perhaps, an applicant can submit leave to remain outside the rules on human rights grounds on forms FLR(O). And can use leave to remain (LTR) and SET(O) for further and indefinite leave to remain (ILR) in the UK. In fact, these forms are multi-purpose. And usually, not all applications on these forms relate to human rights claims.

Where possible use a specific form

Perhaps, an applicant can use these forms for a human rights application if no other specific form is available. For instance, an applicant should not use FLR(O) or the SET(O) for submitting applications either under Appendix FM or on the private life route in terms with paragraphs 276ADE and 276DE. If an applicant uses an incorrect form, the Home Office rejects the application as invalid under paragraph 34 of the Immigration Rules.

What is sufficient condition to make human rights claim?

Quite clearly, the FLR(O) and SET(O) forms require the applicant to tick a box. Evidently, the box indicates which type of application an applicant intends to make. Moreover, an applicant can only tick one box. Therefore, for human rights application an applicant needs to tick the box ‘Other purposes or reasons not covered by other application forms’. However, just a mere ticking of the box does not construe that the applicant has made human rights claim as following three (3) questions needs to be considered during the assessment process:

  1. Does the application say that it is a human rights claim?
  2. 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?
  3. Are the matters raised capable of engaging human rights?

Has an applicant made a human rights claim?

Indeed, the Part V of the Nationality, Immigration & Asylum Act 2002, defines a human rights claim as claim made by a person that to remove the applicant from or require him/her to leave the United Kingdom or to reject/refuse entry into the UK would be unlawful under section 6 of the Human Rights Act – 1998.

Perhaps, the application form does not ask an applicant to indicate whether or not the claim is a human rights claim. Therefore, during the application assessment process, the decision-maker tries to identify whether a human rights claim is made or not in the application. Accordingly, the decision-maker may consider serving a section 120 notice on receipt of the application or refuse the application with a right of appeal.

Does the applicant state a human rights claim?

If an applicant has stated a human rights claim in the application, then the decision-maker may evaluate: does the applicant set out why this is a human rights claim? For instance, an applicant may say no more than:

  • I am making a human rights claim
  • it is a breach of my human rights under Article 8 not to grant me indefinite leave to remain (ILR)

Apparently, if an applicant provides nothing more than the preceding bare statements, then the decision-maker may not consider the UK visa application on human rights grounds. Therefore, will refuse the human rights claim with no rights of appeal.

An applicant needs to particularise a human rights claim

As a matter for, an applicant needs to particularise human rights claim in a UK visa application. Perhaps, 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 decision-maker 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
  • 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

Human rights protected by ECHR

In fact, 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. Nevertheless, 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.

Determination of human rights claims

Apparently, the decision-maker considers whether the claim is capable of engaging the human rights grounds relied on. Therefore, this usually involves an examination of the merits of the claim. Therefore, if the decision-maker considers that there are no human rights claim then refuses the UK visa application with no right of appeal. And with no right to seek administrative review as well.

However, if the UK visa application does engage the human rights then the decision-maker approve the claim. Perhaps, in case of refusal, the decision-maker may serve a refusal with:

  1. a right of appeal
  2. section 94 certification
  3. no right of appeal as an applicant does not make a fresh claim under paragraph 353
  4. no right of appeal because of section 96 certification

Human Rights UK visa applications from overseas

Perhaps, human rights UK visa applications under the Immigration Rules from overseas (entry clearance) relates to:

  1. Appendix FM (family members), but not section BPILR (bereavement) or section DVILR (domestic violence)
  2. Family Members under Part 8 of Immigration Rules where the sponsor is present and settled in the UK or has refugee or humanitarian protection in the UK, not paragraphs 319AA to 319J (points-based system (PBS) dependents), paragraphs 284, 287, 295D or 295G (sponsor granted settlement as a PBS Migrant)
  3. Asylum under Part 11 of Immigration Rules
  4. Partner or Child of a Member of HM Forces under Part 4 or Part 7 of Appendix Armed Forces, and paragraphs 276U, 276AA, 276AD, and 276AG

Moreover, a person can also make a human rights UK visa application outside the Immigration Rules from overseas as well. In fact, these types of applications certainly form part of a valid application for entry clearance.

Form for human rights UK visa application outside the rules

Perhaps, if an applicant is not able to find an appropriate form or believe that she/he does not meet the conditions of the immigration rules, then the can complete a UK visitor visa form (VAF1 A-K).

Part 9 of the form for explaining the human rights grounds

In fact, Part 9 of a UK visitor visa form allows an applicant to provide any other information that the decision-maker may consider as part of an application. Therefore, the additional information may include a human rights claim for leave outside the immigration rules.

Accordingly, the decision-maker may consider whether an applicant has made human rights claim in the UK visa application.

Perhaps, if the applicant fails to make a human rights claim and there are obvious reasons for refusing the application, then decision-maker refuses UK visa application with no right of appeal. However, if an applicant is able to make a human rights claim, but the chances of winning an appeal are low then ECO refuses the application with a right of appeal. Finally, if an application has merit and may likely to be granted after an appeal, then the ECO refers such an application to Referred Cases Unit (’RCU’) since an ECO cannot grant an application outside the Immigration Rules.

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