Hadi Law

Perhaps you have moved from another country, built a life in the UK, started a family and/or established your career, and had your Indefinite Leave to Remain application refused. You may have applied for a spouse visa or unmarried partner visa, but your application has been rejected, separating you from your loved ones. If you find yourself in this situation, a human rights appeal can provide a pathway to challenge a decision by UK Visas and Immigration (UKVI). This article breaks down the ins and outs of human rights appeals in UK immigration law, helping you understand the grounds for appeal and when they prevent removal.

What are the Grounds for Appealing an Immigration Decision?

Not all immigration decisions have a general right of appeal. For instance, you cannot appeal a decision not to grant a Spouse Visa simply because you believe it was wrong. However, you can appeal a UKVI decision if it violates human rights or contradicts immigration rules. Key grounds for appealing include:
  • EU Settlement Scheme (EUSS): If your application for settled or pre-settled status, a family permit, or a travel permit under the EUSS is refused, or if your pre-settled status is curtailed or revoked, you have the right to appeal.
  • Human Rights Claims: You can appeal if your application is refused because it breaches your rights under the ECHR, especially concerning family or private life​.
  • Deportation Orders: If you receive a deportation order and believe it violates your rights, you can challenge it, especially if it is not compliant with the Immigration Act 1971 or agreements under the EUSS​.
Appeals based on human rights claims are one of the most common ways to challenge a UKVI refusal.

What Is a Human Rights Appeal?

A human rights appeal is a legal process that allows you to challenge a decision made by the UKVI regarding your immigration status. It is a way to argue that a particular decision breaches your rights, as outlined in the European Convention on Human Rights (ECHR). The most commonly cited rights in these appeals are:
  • Right to Family Life (Article 8): Ensures your right to a private and family life. In the case of Beoku-Betts v Secretary of State for the Home Department [2007] EWCA Civ 154, the House of Lords clarified that when the Secretary of State threatened a person with removal from the UK, the impact on all family members should be considered when assessing the right to family life under Article 8.
  • Protection from Inhumane Treatment (Article 3): Protects you from torture, inhuman or degrading treatment, which could occur if you are sent back to your home country.

What if I am being Threatened with Removal from the UK

An appeal can prevent removal from the UK if the claim is credible and has legitimate grounds. In specific situations, removal is halted:
  • Clearly Unfounded Claims: The Home Office can certify a claim as ‘clearly unfounded’ if it has no reasonable prospect of success. However, if you can prove that your human rights claim is not ‘clearly unfounded,’ you have the right to remain in the UK while your appeal is processed​.
  • Further Submissions: When previous protection or human rights claims are rejected, you can submit additional evidence. Removal is halted if these submissions are accepted as a new claim with a realistic chance of success​.
These safeguards ensure that people are not unjustly removed from the UK until their appeals are fully considered. In addition, the Supreme Court in R (on the application of Kiarie) v Secretary of State for the Home Department, [2017] UKSC 42, ruled that ‘out-of-country appeals, (appeals against immigration decisions made by UKVI which immigrants are entitled to pursue before the First-tier Tribunal (Immigration and Asylum Chamber) but only if they bring them when they are outside the UK, are not effective when making an appeal based on a human rights claim. The Court stated: “An effective appeal requires that the appellants are afforded the opportunity to give live evidence. While the giving of evidence on screen is not optimum, it might be enough to render the appeal effective for the purposes of article 8, provided that the opportunity to give evidence in that way is realistically available to them. However, the financial and logistical barriers to their giving evidence on screen from abroad are almost insurmountable.” Lord Wilson, who gave the lead judgment, went on to say: “The Ministry of Justice has failed to make provision for facilities at the hearing centre, or for access to such facilities abroad, as would allow the appellants to give live evidence and participate in the hearing. Deportation pursuant to the certificates would therefore interfere with the appellants’ rights to respect for their private and family life in the UK pursuant to article 8 and, in particular, with the aspect of their rights which requires that their challenge to a threatened breach of them should be effective. The respondent has failed to establish that deportation in advance of appeal strikes a fair balance between the rights of the appellants and the interests of the community and therefore the decisions to issue the certificates were unlawful.”

Wrapping up

Human rights appeals provide a lifeline for people facing adverse immigration decisions that could upend their lives. Understanding the framework of these appeals can empower you to advocate for your rights and your family’s rights. Whether it is challenging a visa or ILR refusal or fighting a deportation order, it is vital to know that you have options. An experienced Immigration Law Solicitor can guide you through the complexities of the law and provide expert representation. For further information on any personal or business immigration matter, please speak to our immigration law team on 01772 447000 or reach out to us on our seven-day-a-week WhatsApp helpline on 07869760533.

Leave a comment

× Chat Now...