MY (Pakistan) v Secretary of State for the Home Department

Factual and Procedural Background

This appeal concerns whether the refusal of an application for indefinite leave to remain ("ILR") by a victim of domestic violence attracts a right of appeal under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). The Appellant submitted an ILR application under section DVILR of Appendix FM of the Immigration Rules as a victim of domestic violence, using the prescribed form SET (DV). The Secretary of State refused the application but did not consider the Appellant's human rights claim, stating that such claims require a separate application on a different form (FLR (HRO)). The Appellant sought to appeal the refusal as a refusal of a human rights claim, but the First-tier Tribunal (FTT) and Upper Tribunal (UT) held they had no jurisdiction as the Secretary of State had not made a decision refusing a human rights claim. The Appellant was granted permission to appeal to this Court.

The Appellant is a Pakistani national who entered the UK on a spouse visa in 2014 and claimed domestic violence from his wife and her family. After separation and divorce, his leave was curtailed. He made various applications for leave to remain, culminating in the ILR application under the domestic violence route. The Secretary of State refused the application on the basis that the domestic violence requirements were not met and that any human rights claim was not considered as it was not raised by the correct application form.

The procedural history includes the refusal decision dated 9 September 2018, an administrative review which upheld the refusal, and an enforcement notice requiring the Appellant to state any grounds for remaining in the UK. The Appellant appealed to the FTT on the basis that the refusal was also a refusal of a human rights claim, but the FTT and UT both held they lacked jurisdiction to hear the appeal.

Legal Issues Presented

1. Whether the Secretary of State's refusal of the Appellant's application for indefinite leave to remain as a victim of domestic violence constitutes a "decision to refuse a human rights claim" within the meaning of section 82(1)(b) of the 2002 Act, thereby attracting a right of appeal to the First-tier Tribunal.
2. Whether it is lawful for the Secretary of State to require separate applications and forms for leave to remain under the domestic violence route and for associated human rights claims.
3. Whether the Secretary of State's "one-application-at-a-time" policy, which prohibits simultaneous applications on different grounds, is lawful in the context of human rights claims associated with domestic violence applications.

Arguments of the Parties

Appellant's Arguments

• A refusal of an application that includes a human rights claim is necessarily a refusal of that human rights claim for the purposes of section 82(1)(b), regardless of whether the Secretary of State expressly "engaged with" the human rights claim.
• It is unlawful for the Secretary of State to decline to consider a human rights claim raised as part of an application for leave to remain under the Immigration Rules.
• The requirement to submit two separate application forms (one for domestic violence and one for human rights) is unlawful and unfair, especially as it imposes additional fees and delays.
• The Secretary of State's policy leads to unfair consequences, including the risk of the applicant becoming an overstayer subject to severe restrictions under the "hostile environment" regime.

Secretary of State's Arguments

• The Secretary of State did not make a decision refusing a human rights claim because the claim was not properly before her, having not been made by the correct application form.
• The statutory framework distinguishes between applications for leave to remain and human rights claims, which are conceptually different.
• The "one-application-at-a-time" policy is lawful and applicants may only pursue one basis of application at a time.
• Challenges to the lawfulness of the Rules or the policy should be pursued by judicial review, not in statutory appeal proceedings.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by distinguishing between an application for leave to remain and a human rights claim, which are conceptually distinct under the statutory scheme. An application for leave to remain may or may not inherently involve a human rights claim depending on the basis of the application. Applications under certain parts of Appendix FM (such as private or family life) inherently involve human rights claims, whereas applications under the domestic violence section (DVILR) do not inherently involve such claims.

The Court noted that the Secretary of State's policy permits only one outstanding application at a time, requiring separate forms for domestic violence applications and human rights claims. The Secretary of State refused the Appellant's DVILR application without considering the human rights claim because it was not raised by the prescribed form for such claims.

The Court rejected the Appellant's primary argument that a refusal of an application including a human rights claim must necessarily be treated as a refusal of the human rights claim itself. It held that the DVILR application did not inherently constitute a human rights claim as defined in section 113(1) of the 2002 Act, because the critical element of entitlement under DVILR is the permanent breakdown of the relationship due to domestic violence, which is distinct from establishing that removal would breach Convention rights.

The Court acknowledged the practical difficulties and unfairness arising from the one-application-at-a-time policy, including the risk of applicants becoming overstayers subject to the "hostile environment" regime. However, it held that these concerns do not alter the statutory interpretation that the Secretary of State had not made a decision refusing a human rights claim in this case.

The Court also considered relevant authorities, including the decision of Kerr J in R (AT), which similarly distinguished between domestic violence claims and human rights claims, agreeing with the principle that not all domestic violence claims are human rights claims. The Court noted that challenges to the Secretary of State's policy and the lawfulness of requiring separate applications must be pursued by judicial review, not by statutory appeal.

Holding and Implications

The Court's final decision is to DISMISS THE APPEAL.

The Secretary of State did not make a decision refusing the Appellant's human rights claim within the meaning of section 82(1)(b) of the 2002 Act, and therefore the First-tier Tribunal had no jurisdiction to entertain the appeal. The Court confirmed that any challenge to the Secretary of State's "one-application-at-a-time" policy or the requirement for separate applications for domestic violence and human rights claims must be pursued by judicial review rather than appeal.

No new precedent was set beyond clarifying the distinction between applications under section DVILR and human rights claims for the purposes of the right of appeal.