Upper Tribunal clarifies whether a Right of Appeal to the FTT arises where, in a human rights claim, indefinite leave to remain is refused but limited leave is granted

In R(Mujahid) v First Tier Tribunal (Immigration and Asylum Chamber) & Secretary of State for the Home Department (refusal of human rights claim) [2020] UKUT 85 (IAC) the President of the Upper Tribunal, Immigration and Asylum Chamber  (Mr Justice Lane) answered the difficult question as to whether a right of appeal to the FTT arises in applications treated by the Home Secretary as 'human rights claims' in circumstances where indefinite leave to remain is sought but only limited leave to remain is granted.

The short answer is "no": no right of appeal arises.

Mr Mujahid's application – a long residence application under paragraph 276B of the Immigration Rules – fell to be considered as a 'human rights claim' in accordance with the Secretary of State's guidance. It's refusal, Mr Mujahid contended, notwithstanding his grant of limited leave to remain consequently amounted to a refusal of a human rights claim which gave rise to a right of appeal against the decision to the First Tier Tribunal.

The President did not agree - one could not regard the Secretary of State's decision as two separate decisions, one giving a right of appeal. The 2002 Act precluded this contention as the definition of a "human rights claim" in section 113 presumes removal or a requirement for removal from the UK as an essential element in order for there be an appeal to the FTT. Further the grant of limited leave to remain on human rights grounds demonstrated that the Secretary of State had responded positively to applicant's human rights claim. What matters, the President determined, was that leave had a been granted to the applicant by reference to his human rights position. No right of appeal to the FTT therefore arose from the refusal of claim for indefinite leave.

The ruling provides welcome clarity on an important issue: namely that the Secretary of State does not decide to refuse a human rights claim when, in response to it, she grants an applicant limited leave by reference to the applicant's family life with a particular family member, even though the applicant had sought indefinite leave by reference to long residence in the United Kingdom.

Simon P G Murray appeared for the Secretary of State for the Home Department, the interested party.

The judgment is available here.