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

An extended, self-induced immigration limbo may engage article 8, but it does not automatically oblige the state to grant leave to remain. The conventional proportionality test applies. The migrant’s deliberate obstruction of removal is highly material, although it does not exclude reliance on article 8.

The impossibility of removal does not extinguish the public interests in effective immigration control, avoiding incentives to obstruct removal, protecting public confidence, limiting welfare expenditure and regulating access to employment. A residence period in the Immigration Rules carries weight only within the complete scheme, including its suitability requirements. Courts should no longer follow the separate four-stage limbo guidance previously given in RA (Iraq).

AM, a Belarusian national and foreign criminal, repeatedly obstructed attempts to establish his identity and return him to Belarus. He consequently remained in the United Kingdom on immigration bail without leave to remain, permission to work or full access to welfare and healthcare.

The Upper Tribunal rejected AM’s statelessness claim but held that maintaining this limbo violated article 8 and required leave to remain with permission to work. The Court of Appeal dismissed the Secretary of State’s appeal in [2022] EWCA Civ 780.

The Supreme Court considered whether the Upper Tribunal had erred in its proportionality assessment, particularly by following the limbo guidance in RA (Iraq), insufficiently weighing AM’s obstruction, diminishing the public interest once removal appeared remote, and treating 20 years’ residence under the Immigration Rules as an important yardstick.

1. Appeal allowed unanimously. Lord Sales, with whom Lord Lloyd-Jones, Lord Hamblen, Lord Stephens and Lady Simler agreed, held that the Upper Tribunal made material errors of law. The Court dismissed AM’s article 8 claim to be granted leave to remain.

2. A conventional article 8 proportionality analysis was required. Positive and negative obligations ultimately involve the same question: whether a fair balance has been struck between individual interests and the general community. Extended limbo could cross the seriousness threshold and engage private life even where the migrant created the situation.

3. The four-stage guidance in RA (Iraq) [2019] EWCA Civ 850 placed an unhelpful and unduly rigid gloss on article 8. Prospective and actual limbo required no separate categories. The prospects of removal, the migrant’s circumstances and conduct, and the relevant public interests all belonged within one fact-sensitive proportionality assessment. Courts and tribunals should not follow that guidance in future.

4. The so-called Gillberg principle did not prevent AM from invoking article 8. It concerned detrimental consequences of criminal or comparable legal misconduct and did not establish a general rule excluding complaints about every foreseeable consequence of voluntary conduct. Nevertheless, deliberate and deceitful obstruction of removal was highly material. It diminished the state’s responsibility and weighed strongly in the fair balance.

5. The public interest was not merely residual because removal was presently impossible. It continued to include effective immigration control, avoidance of incentives to obstruct removal, public confidence, containment of welfare expenditure and protection of employment opportunities for citizens and lawful residents. The Upper Tribunal failed to give these interests their proper weight.

6. Paragraph 276ADE of the Immigration Rules was not a general article 8 yardstick. Its 20-year residence condition operated only where all accompanying conditions, including suitability requirements, were satisfied. It neither estopped the Secretary of State from relying on the public interest nor reduced that interest after 20 years.

7. Sections 117B and 117C of the Nationality, Immigration and Asylum Act 2002 required great weight to be given to the public interest. AM had only minimal private life, formed while his presence was unlawful and precarious, and no very compelling circumstances displaced the statutory requirement for his deportation. Providing immigration bail and protection against destitution, without the wider benefits of leave to remain, struck a fair and proportionate balance.

1. United Kingdom Supreme Court: Allowed the Secretary of State’s appeal from [2022] EWCA Civ 780 and dismissed AM’s article 8 claim.
2. Court of Appeal: In [2022] EWCA Civ 780, dismissed the Secretary of State’s appeal. It held that the Upper Tribunal had been entitled to balance the public and individual interests as it did.
3. Upper Tribunal: By a decision dated 11 February 2021, dismissed AM’s statelessness challenge but held that refusing leave to remain with permission to work violated article 8.