The Court of Appeal in R (Joshi) v Secretary of State for the Home Department  EWCA Civ 1108 has decided that a claim is a human rights claim if in substance, regardless of form, it is a human rights claim.
Ms Joshi had applied to extend her leave to remain outside the Immigration Rules in order to find a Tier 4 sponsor. Her application was made on the basis, in part, of her family life under Article 8 of the European Convention on Human Rights, which she specifically mentioned.
In refusing her application, the Home Office certified the human rights element of her claim as “clearly unfounded” under section 94(1) of the Nationality, Immigration and Asylum Act 2002. As such, any appeal against this decision would have to be made out of country.
Counsel for Ms Joshi argued that her application was simply a request for an extension of time in order to find a sponsor, rather than an implicit challenge to her removal. Professor Christopher Forsyth in the High Court had seen things differently, and the Court of Appeal approved his decision. At paragraph 18, Lord Justice Simon laid down an approach which will be taken as precedent when looking at applications which involve a human rights element, in particular from litigants in person:
Letters addressed to or from the respondent, or those acting on behalf of the Secretary of State, should not be treated as if they are taxing statutes or detailed commercial contracts. This is a field of law and practice which is replete with technical issues; and letters written by unrepresented litigants should not be viewed with an overparticular focus on the precise way in which they are expressed but with a view to identifying their broad intent. In other words, the Court looks at the substance and not the form of the communication.
Having received an application asking for extension of time in which to find a Tier 4 sponsor on the basis of Article 8 rights, the Secretary of State was entitled to read it as a human rights claim founded on those rights, and entitled to certify it as clearly unfounded.
There was a second ground alleging that the Home Office had delayed issuing the applicant with its decision letter in bad faith, and as such that the letter was a nullity. This too was dismissed.
The upshot of all this is that if you are representing a litigant in person who has already made an application that mentions human rights, or if you are drafting an application on behalf of a client, it is worth being aware that if the application could be construed as being based on human rights, the consequence of refusal could be a requirement that they pursue an out-of-country appeal. So be careful before inserting human rights into an application!