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

The Supreme Court allowed the Secretary of State's appeal and held that the refusal to grant limited leave to remain (LTR) to AM, a foreign criminal who has deliberately obstructed his removal to Belarus and who remains on immigration bail in a prolonged state of "limbo", did not violate his rights under article 8 of the European Convention on Human Rights. The court confirmed that article 8 is engaged where an individual is left in prolonged legal uncertainty but emphasised that the proportionality assessment must give substantial weight to the public interest in maintaining effective immigration control, the public interest considerations in sections 117A–117C of the Nationality, Immigration and Asylum Act 2002 and the suitability requirements in the Immigration Rules.

The court rejected the argument that the Strasbourg "Gillberg" exclusionary principle automatically bars any Article 8 complaint that derives from the individual's own obstructive conduct, but held that such conduct is a highly material factor in the proportionality balancing exercise. The tribunal below had under-weighted the public interest and had wrongly treated the 20-year private‑life yardstick in paragraph 276ADE of the Immigration Rules as diminishing that public interest despite AM failing to satisfy the suitability provisions (S-LTR). The combined effect of AM's deliberate deception, his status as a foreign criminal and the statutory regime meant that withholding LTR and maintaining him on immigration bail was a proportionate response.

Background and procedural posture:

• Nature of the application: Judicial review challenge to the Secretary of State's refusal to grant AM limited leave to remain (LTR) or permission to work while his deportation to Belarus could not be effected; claim that refusal violated his rights under article 8 ECHR.
• Path of appeal: Upper Tribunal (11 February 2021) upheld an article 8 breach and ordered grant of LTR; Court of Appeal ([2022] EWCA Civ 780) dismissed the Secretary of State's appeal; Secretary of State appealed to the Supreme Court ([2024] UKSC 13).

Facts: AM, a Belarusian national, arrived in the United Kingdom in 1998, was convicted of criminal offences on multiple occasions and is liable for deportation as a "foreign criminal" under the statutory definition. He has repeatedly provided false information to Belarusian authorities and refused to cooperate with attempts to secure documentation for his removal; attempts to remove him in 2001 and subsequently failed because Belarus refused admission. Because removal could not be executed, he has been released on immigration bail and has remained in the United Kingdom without LTR for many years (described as "limbo" status), with restricted access to work, welfare and non-emergency NHS services, but with NASS support preventing destitution.

Issues framed by the court:

1. Whether AM's article 8 rights were engaged by indefinite limbo arising from the refusal to grant LTR and the denial of work and fuller welfare/NHS benefits.
2. If article 8 was engaged, whether the refusal to grant LTR was proportionate having regard to the public interest in effective immigration control and to the statutory scheme in the NIAA 2002 and the Immigration Rules.
3. Whether Strasbourg authorities such as Gillberg (and related principles) operate to bar an article 8 claim where the claimant has created the situation complained of by refusing to return to his state of nationality.

Reasoning and disposition:

• The court accepted that prolonged limbo can engage article 8, so a conventional proportionality analysis applies. It restated the familiar four‑stage proportionality test and the need to assess both negative and potential positive obligations under article 8, while recognising the state's wide margin of appreciation on immigration and social‑welfare policy.
• The Supreme Court rejected a rigid application of the Gillberg exclusionary principle to bar all article 8 complaints grounded in self‑inflicted immigration status. Gillberg is fact‑specific and limited; an applicant who has obstructed removal is not ipso facto precluded from making an article 8 claim.
• However, the court emphasised that an individual's deliberate and deceitful conduct in thwarting removal is a highly material factor that reduces the state's responsibility and weighs heavily in the proportionality balance. The tribunal below had given insufficient weight to this factor.
• The court found error in the Upper Tribunal's and Court of Appeal's reliance on the RA (Iraq) four‑stage structured guidance as a rigid framework and criticised the Upper Tribunal for downgrading the public interest and for treating paragraph 276ADE's 20‑year rule as an "important yardstick" reducing public interest despite AM failing the suitability tests in S‑LTR.
• Applying the NIAA 2002 provisions, in particular sections 117A–117C, the court held that AM is a foreign criminal to whom the public interest normally requires deportation, and that no very compelling circumstances existed to displace that requirement. Given AM's obstructive conduct and failure to meet suitability conditions, withholding LTR and maintaining him on immigration bail was a proportionate measure in pursuit of legitimate aims (economic well‑being, protection of public resources and effective immigration control).

Relief sought: The Secretary of State sought to overturn the Upper Tribunal and Court of Appeal findings that refusal to grant LTR violated article 8.

Conclusion: The Supreme Court allowed the Secretary of State's appeal and dismissed AM's article 8 claim.

Appeal allowed. The Supreme Court held that although article 8 can be engaged by prolonged "limbo" status, the tribunal below had erred by under‑weighting the public interest in effective immigration control, by over‑relying on the RA (Iraq) structured guidance and by treating the 20‑year private‑life yardstick in paragraph 276ADE as diminishing that public interest despite AM failing the Immigration Rules' suitability criteria; AM's deliberate obstruction of removal was a highly material factor and, on balance, withholding LTR and maintaining immigration bail was proportionate.

Upper Tribunal decision 11 February 2021: dismissed challenge to statelessness but found refusal to grant LTR incompatible with article 8; Court of Appeal [2022] EWCA Civ 780: dismissed Secretary of State's appeal; appeal to the Supreme Court allowed ([2024] UKSC 13).