Human Rights Claims & Appeal Rights: MY (Pakistan)

Published date28 December 2021
Subject MatterGovernment, Public Sector, Litigation, Mediation & Arbitration, Immigration, Trials & Appeals & Compensation, Human Rights, General Immigration
Law FirmRichmond Chambers Immigration Barristers
AuthorCatherine Taroni

In MY (Pakistan) v Secretary of State for the Home Department [2021] EWCA Civ 1500 the Court of Appeal considered when an immigration 'refusal decision' constitutes a 'refusal of a human rights claim' for the purpose of the Immigration Act 2014.

Background in MY Pakistan

The Secretary of State had refused an application for Indefinite Leave to Remain (ILR) under Appendix FM as the victim of domestic violence, where the Appellant had raised a contention that his removal would be incompatible with his Convention rights. In her refusal, the Secretary of State did not consider whether there had been any potential breach of Convention rights because the Appellant should have raised this using a separate application and a different form. There was no engagement with the human rights claim in the refusal decision.

Why Does This Matter?

Following the Immigration Act 2014 amendments to appeal rights, making a human rights claim is determinative of appeal rights in many cases. The High Court case of R (AT) v SSHD [2017] EWHC 2589 (Admin), concerned DVILR applications which include human rights claims, and in this case Mr Justice Kerr held that, while not all domestic violence claims are necessarily also human rights claims ('65), some are, and:

'It is obvious that in domestic violence claims the form to be used should include an option to assert that the claim is also a human rights claim'. I hope [SSHD] will be advised to treat a single application, whether on form SET(DV) or on form FLR(FP), as a valid application, even if it purports to be both a domestic violence claim and a human rights claim.' ('49)

In line with AT, applicants have made explicit Convention rights claims as part of DVILR applications. In MY (Pakistan), the Appellant had submitted a DVILR application and, in his witness statement, he stated that his mental health had suffered and that he risked being killed by his in-laws should he return to Pakistan. He relied on this as engaging Article 8 and Articles 2 or 3 ECHR. The Secretary of State was prepared to accept that the witness statement raised a human rights claim, and the UT proceeded on the basis that it was based on the risk of being killed on return.

The Appellant had used the SET(DV) form, which does not attract the right of appeal, the rationale being that in all other Appendix FM applications the relationship with a Family Member is continuing so a refusal and removal would potentially breach Article 8 rights, whereas in...

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