RA (Iraq) v The Secretary of State for the Home Department

A person liable to deportation may establish that continued immigration “limbo” breaches article 8 where there is no realistic prospect of deportation within a reasonable period. The court must distinguish prospective limbo, while leave remains in force, from actual limbo after a deportation order. It must assess whether removal is presently and foreseeably impossible, whether further facilitating steps remain, and whether change can reasonably be anticipated.

If that threshold is crossed, the court must examine the person’s immigration and offending history, family circumstances, time awaiting deportation, prospects of removal and cooperation. It must then balance the Convention impact against effective immigration control. Inability to enforce removal does not alone confer entitlement to leave.

The Iraqi appellant challenged the Upper Tribunal’s dismissal of his appeal against a 2008 decision to deport him. Although no deportation order had yet been made, he argued that practical obstacles to return would leave him without immigration status, employment, benefits and other opportunities, disproportionately interfering with his and his children’s article 8 rights.

The Upper Tribunal held that removal might become possible and that the public interest arising from immigration control and the appellant’s criminal convictions outweighed the circumstances favouring him. The central issues were the correct approach to an article 8 “limbo” claim, the identification of the relevant public interest and the treatment of the children’s best interests.

1. Appeal dismissed. The Upper Tribunal applied an orthodox proportionality analysis and was entitled to conclude that the prospects of removal were not so remote that article 8 required the appellant’s immigration status to be continued.
2. A “limbo” claim requires four stages of analysis. First, the tribunal must distinguish prospective limbo, where a deportation decision has been made but existing leave continues, from actual limbo, where a deportation order has ended leave but cannot be enforced. Prospective limbo will ordinarily carry less weight, although every case depends on its facts and duration.
3. Second, the claimant must show that deportation cannot occur immediately or in the foreseeable future, that no further steps can presently be taken to facilitate it, and that there is no reason to anticipate a change. Unless the practical prospects of removal are remote, a limbo challenge to an otherwise lawful deportation decision will face formidable obstacles.
4. Third, if that threshold is met, the tribunal must conduct a retrospective and prospective examination. Relevant matters include residence and immigration history, family circumstances, offending, elapsed time, the prospect of eventual deportation and whether the claimant has obstructed documentation or removal.
5. Fourth, the tribunal must balance the impact on article 8 and other Convention rights against the public interest in effective immigration control and deporting those who ought not to remain. There is no distinct public interest in withholding work, benefits or healthcare, although Parliament has made those consequences a statutory disincentive to unlawful presence. Nor does present inability to remove create an automatic entitlement to leave.
6. The appellant remained on section 3C leave and could work, maintain family life and support his children. His case therefore concerned prospective limbo, with little significant present interference. The Upper Tribunal properly considered his children’s interests, residence, employment, offending and present non-removability. It was entitled to find that future removal might become possible and that the public interest prevailed.
7. The court admitted recent evidence under CPR 52.21(2), but it added little. Recognition of the appellant by Iraqi authorities and the availability of a laissez-passer did not by themselves resolve all practical obstacles to return.

1. Court of Appeal (Civil Division): The appeal was dismissed. The Upper Tribunal’s determination of 22 November 2016 was upheld: [2019] EWCA Civ 850.
2. Upper Tribunal: Upper Tribunal Judge Allen dismissed the article 8 “limbo” appeal on 22 November 2016.
3. Court of Appeal: On 21 December 2015 the court approved a consent order remitting the limited “limbo” issue to the Upper Tribunal.
4. Upper Tribunal: On 1 May 2013 Upper Tribunal Judge Eshun dismissed the appeal but omitted to determine the “limbo” ground.
5. Court of Appeal: On 21 March 2011 the court allowed an appeal arising from delayed promulgation and remitted the case for reconsideration.
6. Asylum and Immigration Tribunal: The appellant’s challenge to deportation was dismissed in determinations promulgated in 2009 and 2010.