Abdullah v Secretary of State for the Home Department

A person who is not entitled to asylum does not acquire a right to remain merely because removal cannot presently be enforced. Article 8 does not confer a right to reside in the country of one’s choice.

Inability to return must be proved on the balance of probabilities. Where further inquiries into nationality and documentation remain reasonable, temporary uncertainty does not require a grant of leave. Even if Article 8 is engaged, maintaining sensible immigration control may justify refusal.

A prolonged immigration “limbo” may eventually engage Article 8 where the prospect of safe voluntary or compulsory return becomes sufficiently remote. The relevant period may depend on the individual’s co-operation with attempts to establish nationality or obtain documentation.

The appellant claimed to be a stateless Bidoon, or alternatively a person of Palestinian origin born in Saudi Arabia. The Secretary of State rejected his asylum claim. An Immigration Judge dismissed his appeal in 2009. Following an earlier intervention by the Court of Appeal, the Upper Tribunal reconsidered the case while preserving the finding that he had been born in Saudi Arabia.

The Upper Tribunal found a serious possibility that the appellant was Palestinian but made no finding, on the balance of probabilities, that he could not return to Saudi Arabia. It dismissed his appeals on asylum, humanitarian protection and human rights grounds.

The sole issue before the Court of Appeal was whether Article 8 required the Secretary of State to grant leave to remain while further inquiries were made into the appellant’s nationality and possible return.

1. The appeal was dismissed unanimously. The Upper Tribunal had been entitled to conclude that Article 8 did not require the Secretary of State to grant leave while efforts were made to secure the appellant’s return to Saudi Arabia.

2. Sir Stanley Burnton held that the Upper Tribunal had not found, on the applicable standard, that the appellant was Palestinian or unable to return to Saudi Arabia. In accordance with MA (Ethiopia) v Secretary of State for the Home Department [2009] EWCA Civ 289, inability to return, unlike a risk of persecution on return, had to be proved on the balance of probabilities. A finding of a reasonable degree of likelihood did not satisfy that standard.

3. The Secretary of State’s present inability to enforce removal did not itself require a grant of leave. Article 8 does not confer a right to reside in the country of one’s choice. The appellant had not been compelled to come to the United Kingdom by persecution, and there was no evidence that he had established a private or family life here. His circumstances differed materially from those in Kaftailova v Latvia and Kuric and others v Slovenia, where long-term lawful residents lost their residence rights following the dissolution of states.

4. Even if Article 8 was engaged, the balancing exercise under Article 8.2 could have produced only one answer on the facts. Refusal of leave was justified by the need to maintain sensible immigration control while further inquiries and evidence remained possible.

5. Beatson LJ agreed and added that an Article 8 “limbo” argument might become relevant at a later stage. It was unarguable at the date of the Upper Tribunal’s decision because the appellant had supplied limited and inconsistent information, and the Secretary of State was entitled to further time for inquiries. The period before such an argument could arise may depend on the individual’s co-operation with efforts to establish nationality or obtain documentation.

6. The court left open whether a person relying on inability to return must prove that lawful residence is unavailable in every other country, or whether the Secretary of State must identify a country where lawful residence is possible. Kitchin LJ agreed with both judgments.

1. Court of Appeal (Civil Division): By [2013] EWCA Civ 42, unanimously dismissed the appeal from the Upper Tribunal.

2. Upper Tribunal (Immigration and Asylum Chamber): On 4 May 2011 dismissed the appeals on asylum, humanitarian protection and human rights grounds. It acted following an earlier, uncited Court of Appeal decision which had set aside a previous Upper Tribunal decision, preserved the finding that the appellant was born in Saudi Arabia and left all other issues at large.

3. Immigration Judge: On 20 January 2009 dismissed the appeal against the Secretary of State’s refusal of asylum and leave to enter.