How to Make a Human Rights Claim

What Is a Human Rights Claim in UK Immigration Law?

Section 13 of the Nationality, Immigration and Asylum Act 2002 (“NIAA”), as amended by the Immigration Act 2014 (“IA”), defines a human rights claim as:

“a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person or require him to leave the UK or to refuse him entry into the UK would be unlawful under section 6 of the Human Rights Act 1998.”

A human rights claim in UK immigration law is when a person argues that removal from the United Kingdom or refusal of their stay would be unlawful under the Human Rights Act 1998. This means the Home Office must consider whether a decision violates the individual’s fundamental rights protected by the European Convention on Human Rights.

A claim does not need to be labelled “human rights claim” to count. If information provided to the Home Office raises a potential human rights breach, decision-makers must treat it as such.

Human rights claims are different from discretionary or compassionate requests. They require a legal assessment of whether removal would be unlawful rather than merely unfair. Human rights claims are most commonly filed based on:

• Article 3 — protection from torture or inhuman or degrading treatment
• Article 8 — respect for private and family life

The Home Office will assess your application and either accept or refuse your claim. If your case is refused and you believe it was done unjustly, you can file an administrative review or appeal to the Immigration and Asylum Tribunal to have your claim reassessed.

When Should You Make a Human Rights Claim?

You can make an immigration human rights claim in the UK when you cannot qualify for leave to stay under normal immigration rules but have compelling reasons to stay, such as a risk of harm or disruption of family life if you’re removed. You can file the claim once your circumstances change or when you receive a removal or deportation order.

If you’re issued a removal order, you can file a human rights claim if you:

• Have a spouse/partner, child, or longstanding ties to the UK, and a removal will constitute a violation of your right to private and family life
• Have been continuously resident in the UK for up to 20 years or 7 years if you’re a child, or you’re a young person between the ages of 18 and 25 and have lived at least half of your life in the UK
• Are the parent and primary caregiver of a child born in the UK. Under the 7-year rule, children born in the UK who have lived continuously in the country for 7 years can apply for indefinite leave to remain. You can apply for ILR based on a human rights claim if you can prove it will be unreasonable for both of you to leave the UK
• Can prove that you face a risk of harm, such as torture or other degrading or inhuman treatment, should you return to your home country
• Have a health condition and cannot receive the required medical treatment in your home country, and removing you will cause intense suffering and significantly reduce your life expectancy
• You can also submit a human rights claim as part of an asylum application or as further evidence if your asylum claim has been refused, but you have new evidence or your circumstances have changed

It is crucial to file a claim immediately when your circumstances change. You must provide sufficient documentary evidence to support your claim. Filing a human rights claim after reaching an “appeal rights exhausted” stage can result in your claim being dismissed as unfounded, and you will no longer be able to appeal the decision. The only exception is for those seeking asylum.

The Legal Tests the Home Office Uses to Decide Your Claim

The Home Office decides human rights claims based on the Human Rights Act of 1998, which incorporates the rights outlined in the European Convention on Human Rights (ECHR). It evaluates whether a removal will constitute a breach of family/private life or whether it would cause serious and irreversible harm.

The Home Office assesses whether a human rights claim has been made based on the following considerations:

1. Does the application say it is a human rights claim?
2. Does the information provided in an application engage certain human rights concerns even though it does not mention a human rights claim?
3. Is there sufficient evidence that removal will create a “reasonable degree of likelihood” of risk to the applicant?
4. Is the application credible? This will be assessed based on the applicant’s immigration records. Any history of negative credibility findings will be used against the new claim.

All immigration applications made based on circumstances outside the immigration rules must pass these tests. If the claim is made after an immigration refusal, there must be new evidence to corroborate the claim. The evidence must not have been submitted in previous immigration applications.

If there is insufficient evidence to support a human rights claim or the claim fails the credibility test, the Home Office can certify it as “clearly unfounded.” Certifying a claim as “clearly unfounded” means the claim is weak and likely to fail. Once a claim is certified as unfounded, the claimant will have no further right of in-country appeal.

Step-by-Step — How to Make the Claim

Making an immigration human rights claim in the UK involves submitting an application to the Home Office explaining why removal will constitute a human rights violation. Below is the step-by-step process for making a human rights claim.

Step 1: Identify the Legal Basis for Your Claim

The first step in filing a human rights claim is determining which rights are engaged.

• Private/Family Life (Article 8): If you have a spouse/partner, children, or have lived most of your life in the UK
• Prohibition on Torture/Degrading Treatment (Article 3): You face a high risk of torture or degrading/inhuman treatment upon your return to your home country

Step 2: Gather Evidence to Support Your Claim

You must provide comprehensive evidence to demonstrate why returning will cause you serious and irreversible harm. The documents you need depend on the legal basis of your claim. For example:

• Private Life: Employment history, school records, proof of 10+ years of residence, proof of community ties
• Family life: Marriage certificate, birth certificates, joint utility bills
• Medical: Medical records and Expert reports
• Others: Country of origin information, witness statements, e.t.c.

Step 3: Complete the Appropriate Application Form

The form you will use to make your application depends on the human rights grounds on which you’re making the claim. Using the wrong form can result in your application being rejected.

• Form FLR(FP) or FLR(M) for family or private life
• Form FLR (O) for further leave to remain or SET(O) for indefinite leave to remain, where there is no specific form that covers your situation. You’ll be required to tick a box indicating what you’re using the form for. For a human rights claim, you should tick ‘Other purposes or reasons not covered by other application forms.’
• Further Submissions form if you’ve exhausted your appeal rights.

Step 4: Submit and Pay the Application Fees

Pay the application fee online or apply for a fee waiver (if you’re eligible) and submit the application

Step 5: Book and Attend a UKVCAS Appointment

You’ll be required to book an appointment with UKVCAS to submit your biometric information (photo and fingerprints)

Step 6: Await a Decision

The Home Office will assess your claim if there is a proportionate interference with your rights and approve or refuse your application.

Documents and Evidence Required

The success or failure of a human rights claim application significantly depends on the quality of evidence provided. You’ll typically need to provide:

• A valid passport or other travel document
• Completed human rights claim application form
• Proof of relationship with family members in the UK: Marriage certificate, civil partnership registration, birth certificates
• Evidence of long-term residence and integration in the UK: Immigration leave records, employment history, school records, and proof of community ties
• Witness statements
• Country guidance/information and expert reports highlighting risks of returning
• Certified medical report and medical records from approved healthcare providers if you’re filing a human rights claim based on medical reasons

You must include certified translations of documents not in English or Welsh. Note that the quality of evidence provided is more crucial than the quantity. It is advisable to seek professional assistance from legal experts like IAS to help curate your supporting documents.

Writing Your Personal Statement (Representations)

A personal statement, officially known as a “witness statement,” is your chance to explain to the Home Office how removal will breach your fundamental rights. This is called ‘particularising the claim.’

Your statement must be clear and truthful and must not contradict any previous records or statements you’ve made. Therefore, it’s crucial to read and understand all documents linked to your case before writing a personal statement.

A witness statement should contain the following key elements:

1. Who You Are: Your full name, residence address, date of birth, nationality, and a sentence explaining the purpose of the statement. For example: ‘This statement is for my appeal.’
2. What Happened: This is the main body of your statement and should detail all key events relating to your case and how they personally affected you. For easy flow, it’s best to outline events in chronological order. You should also detail all known information about each event, including what happened, when it happened, where it happened, who was involved, and the outcome of the event.
3. Why It Matters: After describing the events, you must also highlight why they are important for your case. This might mean explaining why you cannot return or live safely elsewhere, why a removal would be wrong or unfair, or how leaving the UK will gravely disrupt your private/family life.
4. Summary of the main message: At the end of your statement is helpful to include a summary of the main points you want the decision maker to understand. This should be about 2 – 5 lines focusing on the most important points, not every detail.
5. Statement of Truth: At the end of the statement, you must write a short line to confirm that your statement is true and sign and date the statement. The line could read “I believe that the facts in this witness statement are true.”

The statement can be typed or handwritten, provided it is clear and easy to read. If you need to update your statement later, you should clearly outline what has changed and why you are giving new information.

Possible Decisions You Can Receive

The possible outcomes of a human rights claim application to the Home Office include:

• Grant of Leave: If your application is successful, the Home Office will grant you leave to remain in the UK. The length of time you’ll be granted leave depends on the type of application you made
• Refusal with Appeal Rights: Your application is refused, but you’re granted the right to appeal to the First-tier Tribunal (Immigration and Asylum Chamber). You can stay in the UK while the appeal is pending
• Refusal Without Right of Appeal: The Home Office can go beyond just refusing your claim to certifying it as ‘clearly unfounded.’ This means the Home Office believes your claim is without substance and is bound to fail. If your claim is certified as ‘clearly unfounded,’ you will have no in-country right of appeal. However, you may be able to submit an appeal from outside the UK

Appeals and Further Submissions

If your human rights claim application is refused and you’re granted appeal rights, you must file a tribunal appeal within 14 days of receiving the refusal decision if you’re in the UK. If you’re outside the UK, you must file an appeal within 28 days of receiving the decision. The appeal must be on the grounds that the decision violates the Human Rights Act 1998.

You will be scheduled for a hearing. Appeals are lodged online through MyHMCTS. The fee is £140 for an oral hearing. If you included witness statements from third parties in your evidence file, the people who gave the statements should also attend the hearing, as they may be called upon to give evidence.

If the Tribunal upholds your appeal, the Home Office will re-evaluate your case and may grant you leave. If your appeal is dismissed, you may be able to appeal to the Upper Tribunal.

If, after your appeal, the Home Office certifies your claim as unfounded, your right of appeal will be removed. However, you may be able challenge the decision by filing for a Judicial Review.

Further Submissions (Fresh Claims)

If your human rights claim was refused and you’ve exhausted your appeal rights, you can submit new evidence to the Home Office to re-evaluate your case. This is known as ‘Further Submissions.’

You can submit further information if you have new and compelling evidence to back your claim, or there’s been a change of circumstances that strengthens your claim. Your new evidence must be significantly different from previous submissions and must be significant enough that it creates a ‘realistic prospect of success’ when added to old evidence.

You can make further submissions online on the Home Office’s website. If your submissions are accepted, they create a fresh claim and restore your right of appeal. If your submission is rejected, you will have no right of appeal.

Common Reasons Human Rights Claims are Refused

The Home Office refuses human rights claims for various reasons. The most common reasons for human rights claim refusal include:

• Application Errors: Common mistakes like incomplete forms, missing documents, and use of the wrong application form/route can result in a refusal
• Incorrect Legal Basis: Filing a human rights claim based on the wrong legal ground will result in a refusal
• Weak Evidence: Failure to provide sufficient evidence that removal will violate your human rights is a common reason for refusal. For right to private and family life claims, insufficient evidence of family relationships, long-term residence, strong community ties in the UK, and that it will not be reasonable to leave. For health-based claims, lack of strong evidence of the unavailability of medical treatment in your home country
• Failure to prove “Insurmountable obstacles”: For family life claims, you must prove that leaving the UK will constitute an insurmountable obstacle to your family life and not just that leaving will be merely inconvenient. Failure to do so will result in a refusal
• Late Claims: Filing a claim late when you could have made the claim much earlier sometimes results in a refusal of your claim. Late claims are generally considered attempts to delay removal
• Criminality and Suitability Grounds: Criminal convictions with sentences of 12 months and above or a history of persistent offences can result in the refusal of your human rights claim
• Deception: If your claim is found to include misleading information and falsified documentation, your claim will be refused, and you may be subject to a 10-year immigration ban

Special Situations

There are certain special situations, aside from those already listed, where human rights claims may be filed as a basis for the right to remain in the UK. Some of these exceptional circumstances include:

• Domestic Violence: Victims of domestic violence in the UK may be able to file a human rights claim to remain in the UK, depending on their situation
• Trafficking: Victims of human trafficking or modern slavery may be eligible for a right to remain based on Article 3 if they can prove that returning to their home country will cause particular difficulties
• Detention Cases: A person held in immigration detention can challenge the detention by making a human rights claim that continued detention or removal from the UK will constitute a human rights violation as stipulated in the Human Rights Act of 1998 and the European Convention on Human Rights
• Compassionate Grounds: persons facing urgent or tragic, and usually unforeseen, personal circumstances can be granted leave to remain outside of the immigration rules based on human rights considerations

How Long Does the Process Takes

There is no specific timeline for processing human rights claims. Applications can take anywhere from 9 months to 2 years. Actual processing times are determined by various factors, including the complexity of the case, Home Office backlogs, a request for further information, or if it involves an appeal.

Getting an appeal decision usually takes longer than the initial application. Further submissions for fresh claims also face slower processing times than standard applications.

Human Rights Claim Application Fees

Human rights claim applications cost £1,321 for adult applicants. You’ll also have to pay an Immigration Health Surcharge of £1035 for each year of your leave to stay.

If you cannot afford the fees, you may be able to get a fee waiver. You must apply for the fee waiver at the same time as or before your main application. You must also provide concrete evidence that you cannot afford the fees and meet the Home Office fee waiver policy requirements.

You can apply for a fee waiver if you’re making a human rights claim:

• Based on your right to private and family life (Article 8) or any other ECHR right
• If you’ve been granted discretionary leave following a refused asylum or protection claim, or as a victim of trafficking/modern slavery
• On a 10-year parent, partner, or private life route
• On a 5-year parent route
• On a 5-year partner route, if your partner is not required to meet the minimum income threshold because they’re a recipient of a particular benefit

You do not need to apply for a fee waiver if you’re making a claim on medical grounds based on Article 3 ECHR, as there are no fees for such applications.

Asylum claimants, victims of domestic violence and trafficking, and Article 3 human rights applicants can also receive legal aid from the Home Office. Legal aid is generally not available for family/private life claims, except in exceptional circumstances.

You can apply for a waiver even if you have No Recourse to Public Funds, as fee waivers are not considered public funds. The Home Office is mandated to grant a fee waiver if a person sufficiently proves that:

• They can’t afford the fee
• They are destitute or at risk of imminent destitution
• Their income is insufficient to meet a child’s essential needs

How Can IAS Help?

Human rights law is complex, and making a claim can be a challenging and stressful process. It involves submitting extensive documentary evidence to support your claim, as failure to do so will result in refusal. So, it’s critical to seek legal advice from UK immigration professionals to help streamline the process and reduce the chances of refusal.

Our immigration lawyers at IAS are experts in UK immigration rules and can help with your human rights claim. A dedicated advisor will assess your case to determine the right legal basis for your claim. We will also help you gather evidence, prepare your personal statement, and complete your application to the best standards within the stipulated deadline.

We can also prepare an appeal and provide legal representation if you’ve already applied and have been refused.

Contact us today to get immediate assistance with your human rights claim. You can reach us at +44 (0)333 414 9244 or request a free callback from an expert immigration lawyer online.