A Guide to Apply for UK Visa on Human Rights Grounds

UK Visa on Human Rights Grounds

The starting point to consider a UK visa and immigration application on human right grounds is to consider whether 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 a UK visa application is certified under section 94 or 94B of the Immigration Rules then the applicant has no right of appeal until the applicant has left the UK.

Appeal against Human Rights Visa Refusal

Following types of leave to remain applications under the Immigration Rules usually attract a full right of appeal:

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. However, applications under paragraphs 319AA to 319J (PBS dependents) and 284, 287, 295D or 295G (sponsor granted settlement as a PBS Migrant) does not attract a full right of appeal
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

Considerations

The FLR(HRO) and SET(O) forms require the applicant to tick a box. The box indicates which type of application an applicant intends to make. 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:

1. Does the application say that it is a human rights claim?
2. Does the application raise such issues that may amount to 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?

1. Does the Application Say that it is a Human Rights Claim?

The Part V of the Nationality, Immigration & Asylum Act 2002, defines human rights claim as claim made by a person that to remove the applicant from or require them 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.

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

2. Does the applicant state a human rights claim?

If an applicant has stated 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)

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.

What if the applicant has not particularised a claim?

Although, a person needs to particularise; however, for raising a human rights claim, it is not essential/necessary to say so on the UK visa application. Therefore, if an applicant does not state a HR claim even then the decision-maker may consider whether the reasons stated by an applicant amounts to a human rights claim. For instance, if an applicant:

• seeks to have a leave to remain on medical grounds, 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 they are 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

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 the claim falls under the human rights protected by ECHR – European Convention on Human Rights.

3. Are the matters raised capable of engaging human rights?

The decision-maker considers whether the claim engages human rights grounds. Therefore, this usually involves an examination of the merits of the claim. Indeed, if the decision-maker considers that there are no human rights claim then refuses application with no right of appeal or administrative review. However, if the application engages human rights, then the decision-maker may approve the claim.

If a UK visa application on human rights grounds 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

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

Enquiry Form

*What happens next?

Multilingual qualified London based immigration specialists will get back to you, usually within 2-3 working days. If you have not attached any documents, then the UK based Law firm may ask for the relevant Case-Specific Document(s) such as Refusal Letters, Deportation Orders, Application Forms etc. Moreover, after reviewing the papers and information, the legal advisor may advise a course of action and quote the fees for processing the application.

Have a wonderful day!

Protection Claim

A protection claim does not only include asylum claims but also claims outside the Refugee Convention. Accordingly, such applicants may qualify for humanitarian protection and if they are removed from the UK then may be at risk of a serious harm. For further details please refer to paragraph 339C of the Immigration Rules.

A person has a protection status if they have a refugee status or humanitarian protection (HP). If a person does not qualify for a refugee status, then can be considered for HP. However, if an applicant gets a asylum claim then there is no need of HP. Moreover, if an applicant’s asylum claim is refused but gets the HP is granted then there is a right of appeal. Please note, refugee status renders more benefits than humanitarian protection. Therefore, if a asylum claim results in a grant of refugee status, then the protection claim has succeeded at its highest level.

Leave to remain under section 3C

A person can make a human rights application if they have a leave to remain under section 3C of the Immigration Act 1971 due to an ongoing appeal. Please note, if a person has a leave to remain under Section 3C then can only make an application with a right of appeal. However, if a person withdraws the appeal, then can make any other type of application under the immigration rules. Moreover, a person can also make any other type of application after exhausting the right of appeal.

Can a person on Section 3C leave apply for a protection claim?

Yes, a migrant may apply for a protection claim if they have a leave u/s 3C of Immigration Act 1971. Perhaps, because of an ongoing and continuing appeal against the refusal of another application.

The Right of Appeal after Revocation of a Protection Claim

The revocation of a Protection Claim means that by removing the claimant would breach the Refugee Convention. Accordingly, this would breach government’s responsibilities to persons, who are eligible for humanitarian protection. Therefore, there is a right of appeal under Section 82 of 2002 Act after Revocation of Protection Status.

UK Human Rights Visa Outside the Immigration Rules

One can use FLR(HRO) to submit a leave to remain on human rights grounds outside the Immigration rules for:

1. leave outside the Immigration Rules based on compassionate and compelling circumstances
2. leave outside the Immigration Rules
3. human rights claim (excluding claims covered by forms FLR (M) or FLR (FP))
4. medical grounds or ill health
5. discretionary leave (DL) where the applicant has previously been granted a period of DL but have not previously been refused asylum
6. DL where the applicant has been granted less than 4 years exceptional leave
7. other claims not covered by another form

And can use leave to remain (LTR) and SET(O) for further and indefinite leave to remain (ILR) in the UK. These forms are multi-purpose. And usually, not all applications on these forms relate to human rights claims.

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(HRO) or the SET(O) for submitting applications 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.

Human Rights Visa from Outside the UK

If an applicant is not able to find an appropriate form or believe that they do not meet the conditions of the immigration rules, then they can complete visitor visa form (VAF1 A-K). 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 human rights claim for leave outside the immigration rules.

The Right of Appeal

Following types of entry clearance applications under the Immigration Rules usually attract a full right of appeal:

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

Considerations

The decision-maker may consider whether an applicant has made human rights claim and if:

1. an applicant has failed to make a claim then refuses the application with no right of appeal
2. an applicant has made the claim but the chances of winning an appeal are low then may refuse the application with a right of appeal
3. the claim has merits and chances of winning an appeal are high then may refer it to Referred Cases Unit (’RCU’). Please note, an Entry Clearance Officer (ECO) cannot grant an application outside the Immigration Rules.