Introduction

The case of MY (Pakistan) v Secretary of State for the Home Department ([2021] EWCA Civ 1500) centers on the legal avenues available to victims of domestic violence seeking Indefinite Leave to Remain (ILR) in the United Kingdom. The appellant, a Pakistani national, applied for ILR under the domestic violence provisions of Appendix FM of the Immigration Rules, accompanied by claims that his removal from the UK would violate his Convention rights. The central legal question pertains to whether the refusal of his ILR application inherently constitutes a refusal of a human rights claim, thereby granting him the right to appeal under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002.

Summary of the Judgment

The England and Wales Court of Appeal (Civil Division) upheld the decision of the First-tier Tribunal (FTT) and the Upper Tribunal (UT) to dismiss the appellant's appeal. The court concluded that the appellant's ILR application under section DVILR did not inherently include a human rights claim as defined in section 113(1) of the Nationality, Immigration and Asylum Act 2002. Consequently, the refusal of the ILR application did not equate to a refusal of a human rights claim, and thus, the appellant did not possess the right to appeal under section 82(1)(b).

Analysis

Precedents Cited

The judgment references several key precedents to elucidate the relationship between ILR applications and human rights claims:

• R (AT) v Secretary of State for the Home Department [2017] EWHC 2589 (Admin): This case established that not all domestic violence claims inherently qualify as human rights claims under section 113(1), emphasizing that while some cases do, others may not.
• R (Shrestha) v Secretary of State for the Home Department [2018] EWCA Civ 2810: Highlighted the necessity of using appropriate forms for human rights claims, though not directly binding in the current context.
• R (Mujahid) v First-tier Tribunal [2020] UKUT 85 (IAC) and Yerokun v Secretary of State for the Home Department [2020] UKUT 377 (IAC): Reinforced that removal constitutes a breach of Convention rights, but the current case distinguishes between different types of ILR applications.
• Balajigari v Secretary of State for the Home Department [2019] EWCA Civ 673: Discussed the procedural aspects of ILR applications and the "hostile environment" policy's impact on applicants.

Legal Reasoning

The court dissected the statutory framework governing ILR applications and human rights claims:

• Section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002: Provides for appeals against the refusal of human rights claims.
• Section 113(1) of the Act: Defines a human rights claim as one asserting that removal would be unlawful under section 6 of the Human Rights Act 1998 (typically referencing Convention rights).
• Appendix FM and Section DVILR: Outline the specific criteria and process for ILR applications based on domestic violence.

The court determined that while some ILR applications inherently involve human rights claims (e.g., those under private or family life), applications under section DVILR do not automatically include such claims. The key element under section DVILR is the permanent breakdown of the relationship due to domestic violence, which does not necessarily equate to a claim that removal breaches Convention rights.

The court further examined the "one-application-at-a-time" policy, which mandates that applicants cannot submit multiple applications concurrently. This policy necessitates separate applications for ILR and human rights claims unless the specific ILR category inherently includes a human rights element.

The judgment emphasized that the Secretary of State's refusal did not equate to an implicit refusal of the human rights claim, as the ILR application based on domestic violence did not inherently assert such a claim. Therefore, no right to appeal under section 82(1)(b) was triggered.

Impact

This judgment delineates the boundaries between different ILR application categories and their relationship with human rights claims. Key implications include:

• Clarification of ILR and Human Rights Claims: Not all ILR applications, even those under sensitive categories like domestic violence, inherently involve human rights claims.
• Strict Adherence to Application Forms: Applicants must utilize the correct forms to assert human rights claims explicitly if they wish to retain the right to appeal.
• Policy Reinforcement: The "one-application-at-a-time" policy remains firmly in place, reinforcing the procedural separation between different claims.
• Guidance for Legal Practitioners: Lawyers must ensure that human rights claims are properly articulated and submitted using designated forms to preserve the right to appeal.

Complex Concepts Simplified

Indefinite Leave to Remain (ILR)

ILR is a form of immigration status in the UK that allows individuals to live and work in the country without any time restrictions. Achieving ILR is a significant step towards permanent residency and eventual citizenship.

Human Rights Claim

A human rights claim in the context of UK immigration is an assertion that removal from the UK would violate the individual's rights under the European Convention on Human Rights (as incorporated into UK law by the Human Rights Act 1998). Commonly referenced articles include the right to family life (Article 8) and the prohibition of torture and inhuman or degrading treatment (Articles 2 and 3).

Section 82(1)(b) Appeal

This section provides a legal avenue for individuals to appeal decisions that refuse their human rights claims related to their immigration status. If a human rights claim is refused, the individual may have the right to challenge this refusal through an appeal.

Appendix FM and Section DVILR

Appendix FM of the UK's Immigration Rules outlines the requirements and processes for family-related immigration applications. Section DVILR specifically deals with ILR applications based on being a victim of domestic violence, focusing on the breakdown of the relationship due to such violence.

Conclusion

The Court of Appeal's decision in MY (Pakistan) reinforces the necessity for clear and distinct application processes within UK immigration law. By affirming that not all ILR applications inherently involve human rights claims, the court delineates the procedural requirements necessary for appellants to retain their right to appeal. This judgment underscores the importance for applicants and legal practitioners to meticulously navigate the prescribed forms and to explicitly articulate any human rights claims to ensure their consideration and the preservation of appellate rights. Furthermore, the reaffirmation of the "one-application-at-a-time" policy maintains the structured approach to immigration applications, aiming to streamline processes but also necessitating careful strategic planning by those seeking to challenge immigration decisions on human rights grounds.