AM, R (on the application of) v The Secretary of State for the Home Department

A person remains liable to immigration detention, and may therefore remain on immigration bail, while the Secretary of State intends removal and there is some prospect of achieving it. The power ends only where removal is an impossibility in the stringent Khadir sense.

That jurisdictional question is distinct from an Article 8 challenge to prolonged legal “limbo”. Applying the four-stage analysis in RA (Iraq) v Secretary of State for the Home Department [2019] EWCA Civ 850, a person in actual limbo may succeed where removal is remote and truly exceptional circumstances make continued limbo disproportionate. The assessment remains fact-specific and must weigh criminality, immigration control, the causes of non-removal, the duration and effects of limbo, and private-life factors.

The applicant, a Belarusian national by his own account, had remained in the United Kingdom since 1998. He was refused admission when removed to Belarus in 2001 and thereafter remained subject to temporary admission and, later, immigration bail. The Secretary of State was unable to establish his identity sufficiently to obtain travel documentation, but maintained that this resulted from his persistent dishonesty about his identity.

He sought judicial review of the continuing refusal to grant leave on the ground that his prolonged legal limbo was unlawful or disproportionate. He later challenged the refusal of his statelessness application. The central issues were whether removal had become impossible so that immigration bail could no longer lawfully continue, whether Article 8 required leave to be granted despite the applicant’s criminality and conduct, and whether he had proved statelessness.

1. Ground 1 succeeded. The Tribunal held that removal had not become impossible in the sense required by R (Khadir) v Secretary of State for the Home Department [2005] UKHL 39. The applicant’s inability to be removed arose substantially from his failure to provide truthful identity information. He retained the ability to change that position. He therefore remained liable to detention and could lawfully be subject to immigration bail.

2. That conclusion did not determine the Article 8 claim. The Tribunal applied the four stages in RA (Iraq) v Secretary of State for the Home Department [2019] EWCA Civ 850. The applicant was in actual, not prospective, limbo. Although removal was not impossible, its prospects were remote after more than two decades; the respondent had effectively conceded that no realistic timescale could be advanced.

3. The fact-specific assessment included the applicant’s serious offending, his lack of lawful residence or social and cultural integration, his minimal private life, medical and mental-health difficulties, and the role his dishonesty had played in preventing removal. The public interest in immigration control and deportation remained substantial. Nevertheless, the applicant’s exceptionally long actual limbo, remote removability, unstable existence, and limited prospect of improvement if granted status made the case truly exceptional.

4. The residual public interest was sufficiently weakened to be outweighed by very compelling circumstances. Continued refusal to grant leave would be a disproportionate interference with Article 8. The Tribunal proposed a declaration to that effect.

5. Ground 2 failed. The applicant bore the burden of proving statelessness on the balance of probabilities. Belarus’s refusal to recognise him did not establish statelessness, particularly where the Tribunal found that he had persistently failed to tell the truth about his identity. Permission was granted on this ground, but the substantive challenge was dismissed.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial review allowed on the Article 8 legal-limbo ground. The challenge to the refusal of the statelessness application was dismissed.
• Secretary of State: Refused the applicant’s statelessness application on 27 November 2019.