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Grant of limited instead of indefinite leave does not generate human rights appeal

Grant of limited instead of indefinite leave does not generate human rights appeal

In Mujahid [2020] UKUT 85 (IAC), President Lane holds that where a person applies to the Home Office for indefinite leave to remain and is refused indefinite leave but granted limited leave instead, that decision is not a refusal of a human rights claim as defined at section 82 of the Nationality, Immigration and Asylum Act 2002. Therefore there is no statutory right of appeal against the decision.

This is despite the initial application, which was refused after all, being treated as a human rights claim. If a challenge is to be brought, it would have to be a judicial review.

The outcome is no surprise given the longstanding tendency of the tribunal for shirking not working when it comes to its own jurisdiction. The headnote:

(1) A person (C) in the United Kingdom who makes a human rights claim is asserting that C (or someone connected with C) has, for whatever reason, a right recognised by the ECHR, which is of such a kind that removing C from, or requiring C to leave, would be a violation of that right.

(2) The refusal of a human rights claim under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002 involves the Secretary of State taking the stance that she is not obliged by section 6 of the Human Rights Act 1998 to respond to the claim by granting C leave.

(2) Accordingly, the Secretary of State does not decide to refuse a human rights claim when, in response to it, she grants C limited leave by reference to C’s family life with a particular family member, even though C had sought indefinite leave by reference to long residence in the United Kingdom.

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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