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

This appeal concerned whether an individual in a state of "limbo" — refused leave to remain but not realistically removable — was entitled to some form of leave because continued restriction infringed article 8 ECHR. The Court applied the four-stage approach from RA (Iraq) v Secretary of State for the Home Department [2019] EWCA Civ 850, considering (i) whether the limbo was prospective or actual, (ii) whether removal prospects were remote, (iii) a fact-specific retrospective and prospective analysis including the applicant's role in frustrating removal, and (iv) a proportionality balance between private life and the public interest in immigration control (including the considerations in sections 117A–117C Nationality, Immigration and Asylum Act 2002 and paragraph 276ADE of the Immigration Rules).

The Upper Tribunal had found AM in actual limbo for over 20 years, removal prospects remote, significant criminality and deception by AM but also medical vulnerability and some prospect of rehabilitation. Although AM failed the suitability tests in paragraph 276ADE and was not stateless, the UT concluded that the combination of remoteness of removal and the particular, very compelling circumstances outweighed the public interest in immigration control. The Court of Appeal rejected the Secretary of State's grounds of appeal and dismissed the appeal, holding that the UT had applied the correct legal tests and had not misdirected itself.

This is an appeal from a declaration of the Upper Tribunal (Immigration and Asylum Chamber) that the Secretary of State's refusal to grant AM leave to remain infringed AM's article 8 rights. AM is a Belarus national who clandestinely entered the UK in 1998, sustained convictions, repeatedly provided false identities to frustrate removal, and has been kept on temporary admission / immigration bail because removal was not realistically enforceable. He sought judicial review challenging the refusal to grant leave to remain and a separate statelessness determination.

The procedural history includes decisions at the First-tier Tribunal (FTT) (determination 30 March 2012), an Upper Tribunal dismissal (23 April 2013), an earlier Court of Appeal judgment (AM (Belarus) v Secretary of State for the Home Department [2014] EWCA Civ 1506), the UTIAC declaration (11 February 2021) that continuing refusal would be a disproportionate interference with article 8, and this appeal to the Court of Appeal ([2022] EWCA Civ 780).

The Court framed the issues as:

• whether the UTIAC's article 8 analysis was consistent with ECtHR caselaw and domestic authorities (notably RA (Iraq));
• whether the UTIAC placed undue emphasis on AM's personal circumstances rather than the broader public-interest consequences of granting leave;
• whether the UTIAC wrongly applied a "near‑miss" approach to paragraph 276ADE of the Immigration Rules (20‑year long residence); and
• whether the UTIAC failed to give proper weight to the Secretary of State's assessment of consequences for other cases.

The Court rehearsed the legal framework: detention limits (Hardial Singh), the distinction between temporary admission / immigration bail and leave to remain (Khadir; R(MS, AR and FW)), the RA (Iraq) four-stage test for limbo cases, and the statutory/public interest factors in sections 117A–117C Nationality, Immigration and Asylum Act 2002 and paragraph 276ADE of the Immigration Rules. The Court considered ECtHR authorities (including Mendizabal), domestic authorities cautioning against creating perverse incentives (Hamzeh), and authorities on balancing article 8 factors.

Applying that framework, the Court concluded the UTIAC had properly found AM in actual limbo for over two decades with only remote prospects of removal, had correctly weighed AM's criminality and deception against his medical vulnerabilities, long residence and some prospect of rehabilitation, and had taken proper account of the public interest considerations in section 117B and paragraph 276ADE. The Court rejected the four grounds of appeal, holding that the UTIAC had not misdirected itself or erred in law. The declaration did not require a specific form or duration of leave; the grant and particulars were for the Secretary of State. The statelessness claim failed at first instance because the UT accepted findings that AM was not stateless but had obstructed identification by deceit.

This was an appellate decision. The Court of Appeal dismissed the Secretary of State's appeal. The court held that the Upper Tribunal had applied the correct legal tests (following RA (Iraq)), had properly balanced AM's long period in limbo, criminality and deception, his medical vulnerabilities and prospects of rehabilitation, and the public interest in immigration control under sections 117A–117C Nationality, Immigration and Asylum Act 2002 and paragraph 276ADE. The UT's declaration that continued refusal would be a disproportionate interference with AM's article 8 rights was within permissible judgment and not vitiated by error of law.

Appeal from the Upper Tribunal (Immigration and Asylum Chamber) (judgment dated 11 February 2021). Earlier proceedings: First-tier Tribunal determination 30 March 2012; Upper Tribunal dismissal 23 April 2013; earlier Court of Appeal judgment in AM (Belarus) v Secretary of State for the Home Department [2014] EWCA Civ 1506. Present judgment of the Court of Appeal: [2022] EWCA Civ 780.