(1) The Secretary of State’s assessment of whether a claim by C constitutes a human rights claim, as defined by section 113 of the Nationality, Immigration and Asylum Act 2002, is not legally determinative. The Secretary of State’s Guidance is, however, broadly compatible with what the High Court in R (Alighanbari) v Secretary of State for the Home Department [2013] EWHC 1818 (Admin) has found to be the minimum elements of a human rights claim.
(2) The fact that C has made a human rights claim does not mean that any reaction to it by the Secretary of State, which is not an acceptance of C’s claim, acknowledged by the grant of leave, is to be treated as the refusal of a human rights claim under section 82(1)(b) of the 2002 Act, generating a right of appeal to the First-tier Tribunal. The Secretary of State is legally entitled to adopt the position that she may require human rights claims to be made in a particular way, if they are to be substantively considered by her so that, if refused, there will be a right of appeal.
(3) There is, accordingly, no justification for construing section 82(1)(b) otherwise than according to its ordinary meaning, which is that the Secretary of State decides to refuse a human rights claim if she:
(i) engages with the claim; and
(ii) reaches a decision that neither C nor anyone else who may be affected has a human right which is of such a kind as to entitle C to remain in the United Kingdom (or to be given entry to it) by reason of that right.
Citations:
[2020] UKUT 89 (IAC)
Links:
Jurisdiction:
England and Wales
Immigration
Updated: 27 November 2022; Ref: scu.650784
