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

In an Article 8 “limbo” case, the question is whether refusal of leave is proportionate in the particular circumstances. A person does not automatically acquire leave because removal is presently difficult. The analysis should distinguish prospective from actual limbo, assess the remoteness of removal and the individual’s responsibility for it, and balance continued limbo against immigration control and deterrence. Long residence may remain a material private-life factor even where suitability requirements under the Immigration Rules are not met; this is not a freestanding “near miss” principle. An expert tribunal’s evaluation is not appealable merely because another court might weigh the factors differently. In exceptional circumstances, a declaration that continued refusal breaches Article 8 may be made without preventing later removal.

The respondent, a Belarusian national, had remained in the United Kingdom since 2001 after Belarus refused to admit him, following findings that he had used false identities and failed to cooperate. He had no leave, was subject to immigration bail, could not work lawfully, and had criminal convictions and significant health vulnerabilities.

The Upper Tribunal (Immigration and Asylum Chamber), on 11 February 2021, declared that refusal to grant leave breached Article 8, but rejected his statelessness claim. The Secretary of State appealed, alleging inconsistency with Strasbourg authority, undue focus on AM’s circumstances, use of a near-miss approach to paragraph 276ADE of the Immigration Rules, and insufficient weight given to immigration-control consequences. The central issue was whether the Upper Tribunal had erred in law in applying the Article 8 limbo framework.

Appeal dismissed. Lord Justice Dingemans gave the judgment, with Lady Justice Nicola Davies and Lord Justice Moylan agreeing. The Upper Tribunal’s declaration remained in force. It required some form of leave, not necessarily indefinite leave, and did not prevent future removal if circumstances changed.

1. The parties agreed that the four-stage approach in RA(Iraq) applied. The court endorsed that framework: distinguish prospective from actual limbo; assess whether removal is remote; undertake a fact-sensitive retrospective and prospective analysis, including the individual’s responsibility for the position; and balance the effect of continued limbo against the public interest in immigration control and deportation. Prospective limbo will generally weigh less heavily.
2. An appeal from an expert immigration tribunal is not justified merely because the appellate court might have reached a different conclusion or expressed the reasoning differently. The question is whether the tribunal’s assessment was wrong. Appropriate caution is required, but deference cannot become an abdication of the appellate court’s duty to correct legal error.
3. The Upper Tribunal was entitled to focus on AM’s life as well as the wider public interest. That was required by the latter stages of the Article 8 analysis. Its reference to the view of a dispassionate member of the public was not central to the reasoning and did not disclose an error of law.
4. The Upper Tribunal had not applied a “near miss” principle. It expressly recognised that AM failed the suitability requirements and could not obtain leave under paragraph 276ADE. It was nevertheless entitled to treat 20 years’ residence as a material private-life factor and an important yardstick. That approach did not create an amnesty for unlawful entrants.
5. The Upper Tribunal had to consider the statutory public-interest factors and the Secretary of State’s submissions, but it was not bound by the Secretary of State’s assessment of the consequences for other cases. It had regard to effective immigration control, the limited weight attaching to unlawful private life, deterrence, AM’s conduct and criminality, the remoteness of removal, and his vulnerabilities. Its conclusion that the very compelling circumstances outweighed the public interest was permissible.
6. The court observed that tolerating illegal working would undermine immigration-bail conditions, tax contributions and the rule of law. The classification of the Article 8 obligation as positive or negative did not need to be decided.

• Court of Appeal (Civil Division) — [2022] EWCA Civ 780; appeal dismissed and the Upper Tribunal’s declaration upheld.
• Upper Tribunal (Immigration and Asylum Chamber) — Order dated 11 February 2021 in JR/5220/2018; refusal of leave was declared disproportionate under Article 8, while the statelessness claim failed.