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Home Office can’t just ignore human rights issues even if there is no asylum claim

Home Office can’t just ignore human rights issues even if there is no asylum claim

The Home Office’s compartmentalised approach to applications for permission to stay in the UK can sometimes cause problems. Not everyone’s claim fits neatly into pre-defined categories.

So what happens when there is overlap between, for instance, an asylum claim and a human rights claim? This is the issue considered by the Upper Tribunal in JA (human rights claim, serious harm) Nigeria [2021] UKUT 97 (IAC).

Asylum or human rights?

Often a person will not have a well-founded fear of persecution or serious harm, but still wants to rely on factors commonly arising in asylum claims in a human rights-based application for permission to remain. Such factors include gender-based violence/discrimination, risk of kidnapping, lack of conformity with religious or cultural expectations, interfaith relationships, or general political unrest. They can be relevant to an assessment of whether it would be reasonable for a qualifying child to leave the UK, whether there are insurmountable obstacles to family life continuing outside the UK, or whether there are very significant obstacles to re-integration.

Take, for instance, a Nigerian family who do not want to return to Nigeria due to the high prevalence of kidnapping and a desire to shield their son from the extended family’s religious traditions and customs. They are under no obligation to make an asylum claim, and may have good reasons for deciding not to (e.g. their concerns may not amount to a well-founded fear of persecution/serious harm). But if they make a private life claim on the basis that there are very significant obstacles to their re-integration in Nigeria, can the Home Office just ignore the asylum-related aspects of their claim?

These were broadly the facts, and the question facing the Upper Tribunal, in JA. The judgment confirms that the answer is no.

Right approach to overlapping asylum/human rights factors

The correct approach, in short, is for the Home Office to give the applicant an opportunity to claim asylum and, if they decline, to proceed to consider the issues raised in the context of the human rights claim.

Unfortunately, this is rarely what happens. It did not happen in this case:

The decision letter in the present case was, therefore, correct to state that, in the absence of an “asylum claim”… the respondent would consider the human rights claim “under the private life route only”. But the decision letter did not, in fact, go on to consider the claims relating to the third appellant’s position regarding the family deity, or the issue of kidnapping, when addressing the issue of whether there would be significant obstacles to integration of the adult appellants in Nigeria.

Paragraph 30

However, the First-tier Tribunal judge who considered the appeal did not make the same mistake:

…she specifically engaged with the alleged threat to the third appellant from the family members of the first appellant. She held that there was no reason why the appellants could not settle in another area of Nigeria, away from the first appellant’s family members.

Paragraph 31

So on the facts of this case, the factors that could have supported an asylum claim were properly considered in the context of the human rights claim — albeit by the lower tribunal rather than the Home Office at the first time of asking. The appeal was therefore dismissed.

Factors relevant to a protection claim can and will invariably have a bearing on whether there are very significant obstacles to integration. But in my experience, the Home Office prefers to encourage applicants to claim asylum rather than to engage with the issues raised in the context of the human rights application.  

The Upper Tribunal has now made it clear that decision-makers must still engage with the issues, even when no asylum claim has been made. They are entitled to approach the protection-based element of the claim “with some scepticism” if the applicant appears to be trying to avoid the asylum process or has added to their claim late in the process. But they cannot entirely ignore it.

The official headnote

(1) Where a human rights claim is made, in circumstances where the Secretary of State considers the nature of what is being alleged is such that the claim could also constitute a protection claim, it is appropriate for her to draw this to the attention of the person concerned, pointing out they may wish to make a protection claim. Indeed, so much would appear to be required, in the light of the Secretary of State’s international obligations regarding refugees and those in need of humanitarian protection.

(2) There is no obligation on such a person to make a protection claim. The person concerned may decide to raise an alleged risk of serious harm, potentially falling within Article 3 of the ECHR, solely for the purpose of making an application for leave to remain in the United Kingdom that is centred on the private life aspects of Article 8, whether by reference to paragraph 276ADE(1)(vi) or outside the immigration rules. If so, the “serious harm” element of the claim falls to be considered in that context.

(3) This is not to say, however, that the failure of a person to make a protection claim, when the possibility of doing so is drawn to their attention by the Secretary of State, will never be relevant to the assessment by her and, on appeal, by the First-tier Tribunal of the “serious harm” element of a purely human rights appeal. Depending on the circumstances, the assessment may well be informed by a person’s refusal to subject themselves to the procedures that are inherent in the consideration of a claim to refugee or humanitarian protection status. Such a person may have to accept that the Secretary of State and the Tribunal are entitled to approach this element of the claim with some scepticism, particularly if it is advanced only late in the day. That is so, whether or not the element constitutes a “new matter” for the purposes of section 85(5) of the Nationality, Immigration and Asylum Act 2002.

(4) On appeal against the refusal of a human rights claim, a person who has not made a protection claim will not be able to rely on the grounds set out in section 84(1) of the 2002 Act, but only on the ground specified in section 84(2).

Iain Halliday

Iain Halliday is a solicitor at McGill & Co, a Scottish law firm specialising in immigration and nationality law. Iain is also Vice Convenor of the Law Society of Scotland's Immigration and Asylum Committee and has been involved in drafting submissions to Parliamentary Committees at both Westminster and Holyrood.

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