Confirmed: no right of appeal where limited instead of indefinite leave is granted

When someone applies for indefinite leave to remain in the UK, but is granted limited leave to remain instead, that decision does not attract a right of appeal. So held President Lane of the Upper Tribunal last year in the case of Mujahid [2020] UKUT 85 (IAC).

In a judgment handed down on 31 March 2021, the Court of Appeal has upheld the Upper Tribunal’s finding. In summary, the reasoning is that, by granting leave to remain to Mr Mujahid, the Home Office accepted that it would be a violation of his human rights to remove him from the UK. The Home Office was not, therefore, refusing a human rights claim. And if there is no refusal of a human rights claim, then there is no right of appeal.

A different finding would have been surprising, with the immigration tribunals going to great lengths to shrink rights of appeal recently.

For what it’s worth, we do agree with Mr Mujahid’s argument that this leads to an odd result:

the stronger an applicant’s Article 8 grounds, the less likely it would be that there could be an appeal to the FTT against the refusal to grant indefinite leave to remain.

Take the example of Mr X, a US national who has lived in the UK for five years as the spouse of a British citizen. After those five years, X applies for indefinite leave to remain, but misunderstands the financial requirement. The Home Office finds that the financial requirement is not met, and that there are no reason why X couldn’t continue his family life with his British spouse in the States. The application for indefinite leave to remain is refused. That attracts a right of appeal.

Now let’s assume Mr X has two British citizen children with his wife, one of whom has severe developmental delays and would suffer enormously from a move. In this situation, the Home Office is likely to ask X to pay the Immigration Health Surcharge, and grant him limited leave instead of indefinite leave. That decision, following the logic of Mujahid, would not attract a right of appeal.

As unfair as that situation might be, it does not, in the words of the Court of Appeal, “subvert the clear meaning of the words of the Act”. (Section 113 of the Nationality, Immigration and Asylum Act 2002, which defines a “human rights claim”).

That said, it is important to bear in mind that, even when there is no right of appeal, appellants can judicially review a decision not to grant indefinite leave, so challenges to such decisions are still possible.

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