Shrestha & Anor, R (On the Application Of) v The Secretary of State for the Home Department

This application raises the following issue: if an applicant for leave to remain raises a human rights ground for the first time after the refusal of his application on other grounds and in response to a request by the Secretary of State under section 120 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), does the Secretary of State have an obligation to treat and determine that response as an application for leave to remain on human rights grounds even absent any further form of application? The Applicants submit that he does. The Secretary of State denies any such obligation.

The issue arises in the context of an application for permission to appeal to this court against the decision of the Upper Tribunal (Immigration and Asylum Chamber)

Although an application for permission to appeal, we have in effect heard full argument on the issue. I thank Sharaz Ahmed and Devendra Shrestha, both of Counsel, who appear for the Applicant, and Colin Thomann of Counsel for the Secretary of State, for their helpful submissions.

Section 50(1) of the Immigration, Asylum and Nationality Act 2006 (“the 2006 Act”) provides:

may require a specified procedure to be followed in making or pursuing an application or claim (whether or not under those rules or any other enactment),

may, in particular, require the use of a specified form and the submission of specified information or documents,

may make provision about the manner in which a fee is to be paid, and

may make provision for the consequences of failure to comply with a requirement under paragraph (a), (b) or (c).”

The relevant rules made under that section are the Immigration Rules (HC 395) as amended from time-to-time (“the Rules”). Paragraph 34 of the Rules sets out the procedure for applications for leave to remain, so far as relevant to this application, as follows (emphasis added):

(a) …[T]he application must be made on an application form which is specified for the immigration category under which the applicant is applying on the date on which the application is made.

An application form is specified when it is posted on the visa and immigration pages of the gov.uk website.

An application can be made on a previous version of a specified paper application form (and shall be treated as made on a specified form) as long as it is no more than 21 days out of date.

All mandatory sections of the application form must be completed.

Where the applicant is required to pay a fee, this fee must be paid in full in accordance with the process set out in the application form…”.

The gov.uk website provides that, in order to make an application for leave to remain on the basis of family and private life, the form that must be used is Form FLR(FP) or Form FLR(HRO) (but, at the relevant time, Form FLR(O)).

The term “human rights claim” is defined for the purposes of Part 5 of the 2002 Act in section 113(1), as “a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to the [European Convention on Human

By section 82(1)(b) of the 2002 Act, under the heading “Right of appeal to the Tribunal”, a right of appeal is provided for in these terms:

In respect of an appeal under that provision, under the heading, “Place from which an appeal may be brought or continued”, section 92 of the 2002 Act, so far as material, reads:

…

In the case of an appeal under section 82(1)(b) (human rights claim appeal) where the claim to which the appeal relates was made while the appellant was in the United Kingdom, the appeal must be brought from outside the United Kingdom if—

Therefore, in summary, now, where a person has made a human rights claim that has been refused by the Secretary of State, that person will be entitled to a statutory appeal prior to removal (i.e. “in-country”) unless the claim is certified by the Secretary of State.

Part 6 of the 2002 Act concerns “Immigration Procedure”. Under the heading, “Requirement to state additional grounds for application etc”, section 120 provides (so far as relevant to this application):

P has made a… human rights claim,

P has made an application to enter or remain in the United Kingdom, or

a decision to... remove P has been taken or may be taken.

The Secretary of State or an immigration officer may serve a notice on P requiring P to provide a statement setting out —

P’s reasons for wishing to enter or remain in the United Kingdom,

any grounds on which P should be permitted to enter or remain in the United Kingdom, and

any grounds on which P should not be removed from or required to leave the United Kingdom.

A statement under subsection (2) need not repeat reasons or grounds set out in —

P’s… human rights claim,

the application mentioned in subsection (1)(b), or

an application to which the decision mentioned in subsection (1)(c) relates.”

The statute sets out various consequences that may arise where an individual makes, or does not make, a proper section 120 statement.

Where there is a right of appeal, section 85(2) applies. That provides:

Section 96(2) provides that the incentive for an individual to comply with a section 120 request. It provides:

that the appeal relies on a ground that should have been, but has not been, raised in a statement made under section 120(2) or (5), and

that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that ground not having been raised in a statement under section 120(2) or (5).”

The Applicants are Nepalese nationals. The Second Applicant is the minor daughter and a dependent of the First Applicant. Her claim is dependent upon that of her father. For the purposes of this application, I shall refer to the First Applicant as simply “the Applicant”.

The Applicant arrived in the United Kingdom on 13 August 2007 with entry clearance as a student. His leave to remain was renewed until 13 February 2016, first as a student and then as a Tier 1 (Highly Skilled) Migrant. His wife joined him as a dependent in November 2007, and his daughter (then aged 5) joined them in December 2009.

On 28 January 2016, the Applicant applied for indefinite leave to remain as a Tier 1 (General) Migrant. On 11 February 2016, that application was refused under paragraphs 245CD and 322(2) and (5) of the Immigration Rules, because his selfemployed earnings as declared in his application (nearly £40,000 for the year to 5 February 2013) was inconsistent with his declarations to HM Revenue and Customs for the two tax years 2010-12 of just under £9,000 in total. The refusal letter said:

The Applicant sought administrative review; but, on 22 March 2016, the Secretary of State issued a further decision letter maintaining the refusal. That letter contained a notice in the following form:

On 30 March 2016, new solicitors for the Applicant responded to the section 120 notice on his behalf, setting out various grounds upon which the Applicant, his wife and daughter had built up a family and private life in the United Kingdom, based notably on the interests of the Applicant’s daughter and the health of his wife. The letter contended that (i) they satisfied paragraph 276ADE(v) of the Immigration Rules because they were unable to return to Nepal, and (ii) in any event, the Secretary of State should exercise her discretion to grant them leave to remain on article 8 grounds outside the Rules.

On 6 April 2016, the Secretary of State refused to consider the representations on the basis that the administrative review route had been exhausted, and in any event, insofar as the representations suggested that the Applicant had a right to family and private life and that removal would breach article 8 of the ECHR, which could not be assessed under the Tier 1 route and a new application would need to be made under the appropriate route.

After the usual pre-action protocol correspondence, on 9 May 2016 the Applicant lodged a claim for judicial review against the refusal decision, submitting that (i) the refusal of the Tier 1 application was unlawful, and (ii) the refusal to consider the human rights claim was unlawful. However, on 30 June 2016, Upper Tribunal Judge Macleman refused permission to proceed with the claim, which he certified as totally without merit. That meant that there was no right to request a reconsideration. No application to appeal that refusal of permission was pursued.

On 17 July 2017, through his solicitors, the Applicant submitted further representations to the Secretary of State in response to the section 120 notice dated 30 March 2016. That notably included further submissions in relation to the Applicant’s daughter and his wife’s health. On 20 July 2017, the Secretary of State refused to consider these. The refusal letter said:

Again following the usual pre-action protocol correspondence, the Applicant issued

On 4 January 2018, Upper Tribunal Judge Gleeson refused permission to proceed on the papers, on the basis that the Applicant had an alternative remedy in the form of a paid family and private life application for leave to remain on human rights grounds.

The Applicant sought a reconsideration of that decision; and, at a hearing 4 June 2018, Judge Rintoul again refused permission to proceed. In relation to the human rights claim, he said:

Judge Macleman refused permission to appeal to this court. The application for permission to appeal is now renewed.

In his written submissions, the Applicant purported to rely upon several grounds of appeal; but Judge Rintoul could not have erred in law by not dealing with issues that were not pleaded as grounds of challenge before him. There was only one ground of challenge pleaded and relied upon, namely that the Secretary of State erred by requiring the Applicant’s human rights claim had to be made in proper form and on payment of the required fee. Mr Ahmed, rightly, did not actively pursue those other grounds before us. He submitted that Judge Rintoul erred in concluding that the Secretary of State was entitled to require a new application in proper form. It is said that section 120 does not require any particular form for new grounds for leave to remain to be advanced. Further, it is said that this court in Ahsan v Secretary of State for the Home Department [2017] EWCA Civ 2009 confirmed that to be the case.

I am entirely unpersuaded by those submissions.

As I have described, to promote consistency and administrative efficacy, section 50 of the 2006 Act and paragraph 34 of the Rules mandate a particular form for an application for leave to remain on human rights grounds. No doubt the Secretary of State has a discretion to waive those requirements – and, in certain circumstances, may be obliged to do so (see Ahsan, referred to at paragraphs 31 and following below) – but there are no such circumstances here. The Secretary of State was unarguably at least entitled to require the Applicant to make such an application in respect of his human rights claim.

Section 120 of the 2002 Act does not suggest that the requirements of section 50 of the 2006 Act and paragraph 34 of the Rules are waived where an applicant make a statement in response to a section 120 request. The section does no more than require an applicant to provide a statement setting out his reasons for wishing to remain, and any grounds upon which he considers he should be permitted to remain, in the United Kingdom. It does not require, or in itself even enable, an applicant to make an application for leave to remain on human rights grounds. The relevant provisions for such an application are found elsewhere. Those provisions, of course, include section 50 and paragraph 34.

Ahsan does not assist the Applicant. The applicants in Ahsan were in the United Kingdom and, under the appeal regime in operation at that time, they were entitled to an out-of-country appeal against a decision to remove them in the face of submissions that removal would breach their article 8 rights. The court concluded that they were entitled to an effective appeal; and such an appeal could not be afforded from their home country.

In those circumstances, the Secretary of State made this concession, summarised in [14] of Ahsan:

In this case, Mr Thomann accepts that the Secretary of State cannot remove the Applicant without considering his claim that to do so would breach article 8 of the ECHR. But, as he submits, the use of removal powers is a last resort. On the basis that the Applicant needs leave to remain and does not have it, he would be expected to leave the United Kingdom voluntarily. It is, of course, open to him to make an application for leave to remain on human rights grounds, in the required form and on payment of the required fee. If he considers that he has such a claim, that is the course required by the statutory scheme. If, in the meantime, the Secretary of State issues removal directions, then, at that stage, the Applicant will be able to rely on any human rights claim that he and/or his daughter have; and, reflecting the passage from Ahsan which I have quoted, subject to certification, he will be entitled to a right of

Nor does TY (Sri Lanka) v Secretary of State for the Home Department [2015] EWCA Civ 1233, upon which Mr Ahmed relied, assist him. That case concerned an application for leave to remain under the Immigration (European Economic Area) Regulations 2006 (SI 2006 No 1003) which was refused, and no section 120 notice was served on him. There was a right of appeal against the refusal. The court held (at [26]-[27] that the appellant could only have advanced his asylum and human rights claims in the context of his appeal against the EEA decision if a section 120 notice had been served: but that is simply the effect of section 85(2) of the 2002 Act (quoted at paragraph 13 above. In this case, there was no right of appeal and there was a section 120 notice served. TY (Sri Lanka) is not to the point.

For those reasons, I would answer the question I posed at the beginning of this judgment, “No”: if an applicant for leave to remain raises a human rights ground for the first time after the refusal of his application on other grounds and in response to a request by the Secretary of State under section 120 of the 2002 Act, the Secretary of State has no obligation to treat and determine that response as an application for leave to remain on human rights grounds in the absence of the required form of application and payment. Indeed, I do not consider the contrary to be arguable.

For those reasons, subject to my Lord, I would refuse permission to appeal.

Given that the application raises an issue of wider importance, I consider that this decision should have a neutral citation so that it can be reported (and, where appropriate, referred to in other cases) in accordance with Practice Direction (Citation of Authorities) [2001] 1 WLR 1001.

I agree.