R (AM (Belarus)) v Secretary of State for the Home Department [2024] UKSC 13 (24 April 2024)
The Supreme Court has allowed the Home Office’s appeal in the case of AM who was a Belarusian who stayed in “limbo” by failing to cooperate in his deportation from the UK. His extradition was also sought. AM came to the UK on 1998 and claimed asylum. His asylum claim was refused and all his appeals were unsuccessful. He was removed to Belarus on 29 June 2001. However, when examined upon arrival, AM gave false information which led the Belarusian authorities to believe that he was not, in fact, a citizen of Belarus. He was refused entry and returned to the UK. AM’s criminal offending in the UK qualified him as a foreign criminal for the purposes of the Nationality, Immigration and Asylum Act 2002. AM did not acquiesce in his removal and successfully managed to scupper all efforts to remove him. Thus, AM has continued to be present in the UK, but without any grant of leave to remain (LTR). This had left AM with “limbo” status and prevented him from working in the UK, accessing the NHS, and entering into a tenancy agreement and from opening a bank account. He was also receiving only very limited social welfare benefits at the same level as any failed asylum seeker awaiting removal from the UK receives. AM suffers from ill-health and was diagnosed with psychotic symptoms and he argued that his mental health was further adversely affected by delays in resolving his case and his limbo status. While in detention, he tried to harm himself and attempted suicide.
The issue in this appeal was in what circumstances will a refusal by the Home Secretary to grant LTR to an individual such as AM, who cannot be removed to their country of nationality, violate his right to respect for private and family life within the meaning of article 8 of the ECHR. Initially, AM filed an application for judicial review of the Home Secretary’s failure to provide him with LTR or permission to work in the UK. The Home Secretary subsequently agreed to reconsider AM’s asylum claim and the judicial review proceedings were stayed by the High Court but the Home Secretary again refused AM’s asylum claim. AM’s appeal against this refusal was dismissed. AM then applied to the Home Secretary for LTR as a stateless person. This too was refused. In July 2018, AM successfully applied for permission to restore the judicial review proceedings which had been stayed. He also successfully applied to add a second ground challenging the refusal to grant him LTR on grounds of statelessness. While the Upper Tribunal dismissed AM’s challenge to the Home Secretary’s determination that AM is not stateless, it upheld AM’s claim that refusal to grant him LTR (with permission to work) violated his rights under article 8. The Home Secretary appealed to the Court of Appeal in relation to the finding of violation of article 8. AM did not appeal in relation to the issue of statelessness. The Court of Appeal dismissed the appeal and the Home Secretary appealed to the Supreme Court which unanimously allowed his appeal in a judgment authored by Lord Sales.
The Home Secretary submitted that (i) relying on Gillberg, there could be no violation of article 8 where an individual created the situation complained of by refusing to exercise their right to return to their country of origin and (ii) the UT erred in its assessment of the public interest side of the article 8 proportionality analysis.
The Supreme Court
Lord Sales gave the only judgment. Lord Lloyd-Jones, Lord Hamblen, Lord Stephens and Lady Simler agreed with him that AM’s claim under article 8 to be granted LTR should be dismissed and Home Secretary’s appeal should be allowed.
The Supreme Court found that the SSHD’s refusal to grant a foreign criminal such as AM, who had been released on immigration bail, leave to remain (with permission to work) did not interfere with his right to respect for private life. AM had persistently and deliberately thwarted all attempts to deport him. Hence, refusing to grant leave to remain, and instead allocating “limbo” status, with the associated benefits, was surely a proportionate measure in pursuit of the legitimate aims of maintaining effective immigration controls and indeed focusing state benefits and other resources on citizens and lawful immigrants.
Giving the reasons for his judgment, Lord Sales first addressed the Gillberg principle and then addressed other issues. The Supreme Court held that the Gillberg principle does not apply in the case of AM. This principle derives from the judgment of the European Court of Human Rights in Gillberg v Sweden, GC, judgment of 3 April 2012, which held that article 8 of the ECHR had no application in circumstances where the repercussions for the applicant of which he complained were all foreseeable consequences of his commission of the offence for which he was convicted. As to AM, the Supreme Court considered that the effects about which he complains, resulting from denial of LTR, are not consequences in terms of how others perceive and react to him which arise from a criminal conviction or court order; nor are they direct penal effects flowing from breach of a legal rule. While rejecting the Home Office counsel’s submission that the Gillberg principle was applicable and provided the answer on this appeal, Lord Sales held that the domestic authorities and Strasbourg case law required the following conclusion:
87. However, although I dismiss the extreme variant of the submissions presented on behalf of the Secretary of State by reference to the Gillberg principle, I accept Mr Dunlop’s alternative submission, which was put to the Upper Tribunal and the Court of Appeal, that AM’s own conduct in thwarting the attempts by the Secretary of State to deport him to Belarus is a highly material factor for the purposes of the relevant proportionality analysis under article 8. In my view, this is an inevitable consequence of the fact that the object of the proportionality analysis is to ensure that a fair balance is struck between the interest of the general community and the rights and interests of the individual. To the extent that the individual has brought particular detrimental consequences on himself or herself, or contributed to the situation in which they arise, the state’s responsibility is liable to be diminished and the fair balance between the public interest and the individual interest is likely to be affected as a result. That will be so all the more where the individual, by their action, has deliberately and deceitfully sought to undermine or circumvent some clearly identified and strong public interest, as AM has done in this case.
Lord Sales discussed numerous authorities during the course of his judgment. These cases included Abdullah v SSHD [2013] EWCA Civ 42, Antonio v SSHD [2022] EWCA Civ 809, R (Hamzeh) v SSHD [2013] EWHC 4113 (Admin), RA (Iraq) v SSHD [2019] EWCA Civ 850 and Strasbourg case law such as Ramadan v Malta (2017) 65 EHRR 32, Dragan v Germany and Shevanova v Latvia.
Lord Sales said that even though it is unlikely that AM could in practice be removed to Belarus, the public interest in maintaining an effective system of immigration control and in containing welfare costs remain relevant considerations. He said it does not follow that where the individual is capable of thwarting his or her removal indefinitely and is plainly intent on doing so the Home Secretary becomes obliged under article 8 to grant them LTR and he held:
93. … The public interest in maintaining an effective system of immigration control and in containing welfare costs remain relevant considerations, the article 8 proportionality balancing exercise has to be carried out and the contribution of the individual to creating the situation in which they find themselves with limbo status will continue to be a highly material factor.
94. I note that all these domestic authorities, including RA (Iraq), proceeded entirely naturally on the footing that a conventional article 8 analysis is required where a claimant is complaining about the absence of LTR in a case involving a self-induced state of limbo. There is no suggestion that anything resembling the Gillberg exclusionary principle is necessary or appropriate for resolving such complaints.
95. Reverting to the present appeal, in my view the Upper Tribunal failed to give any significant, let alone proper weight, to the deliberate actions of AM in contributing to the situation in which he had limbo status as a material factor in its proportionality analysis. I would therefore uphold this alternative version of the first ground of appeal.
Lord Sales further stated that as a related but distinct point, the public interest in focusing expenditure of scarce public funds and allocation of scarce public resources and access to the employment market to meet the needs of UK citizens and persons lawfully in the UK remains a relevant consideration. Lord Sales considered the other grounds of appeal such as the significance of paragraph 276ADE of the Immigration Rules and the incentivisation of circumvention of immigration controls. The UT had rightly framed its analysis under article 8 by reference to the statutory regime in Part 5A of the Nationality, Immigration and Asylum Act 2002 under sections 117A to 117D.
However, he explained that the UT’s determination involved three errors in carrying out the proportionality balancing exercise the tribunal went wrong by downgrading the force of the public interest legitimate aims which the Home Secretary sought to promote by maintaining AM in limbo status. First of all, the UT was incorrect to decide that there was only a weakened residual public interest to be weighed against AM’s interests. Secondly, the UT misanalysed the public interest in relation to maintaining the effectiveness of UK immigration controls. Thirdly, the UT was wrong to place the weight it did on paragraph 276ADE of the Immigration Rules in assessing that the public interest in AM’s removal had diminished.
The UT treated the 20 year residence condition in paragraph 276ADE as “an important yardstick” in deciding whether the right to respect for private life under article 8 requires a grant of LTR and in using that yardstick to evaluate and diminish the weight to be given to the public interest in the proper application of immigration controls in AM’s case. This was to misunderstand the role which the 20 year condition in paragraph 276ADE plays in the immigration system. As his Lordship held at length:
102. Paragraph 276ADE is a statement of the Secretary of State’s policy regarding the grant of LTR where a number of conditions are fulfilled. If an immigrant fulfils the conditions set out in paragraph 276ADE they will be entitled to the grant of LTR as a matter of that policy, without having to debate whether they would or would not be entitled to be granted LTR by reason of their rights under article 8. Paragraph 276ADE is not a statement regarding the weight to be attached to the public interest in the due enforcement of immigration controls for the purposes of the general application of article 8. The Secretary of State is not somehow estopped by reason of paragraph 276ADE from asserting that public interest after someone has been in the country for 20 years, or nearly 20 years; nor is the weight to be attached to that public interest reduced by reference to this immigration rule.
103. Quite apart from these general points, the reliance by the Upper Tribunal on paragraph 276ADE was not appropriate, because it did not give proper consideration to the operation of the whole scheme of paragraph 276ADE. As explicitly stated in paragraph 276ADE(1) (para 37 above), the Secretary of State’s policy is to grant LTR after 20 years’ residence in the United Kingdom only if the individual does not fall for refusal under the specified suitability requirements. AM clearly could not satisfy those requirements (see para 39 above). He was currently the subject of a deportation order (S-LTR.1.2). His presence in the United Kingdom was not conducive to the public good because he had been convicted of an offence for which he had been sentenced to imprisonment for more than 12 months (S-LTR.1.4; see also S-LTR.1.6). He had failed without reasonable excuse to comply with a requirement to provide information (S-LTR.1.7(b)). He had made false representations and failed to disclose material facts in his applications for LTR and his human rights claim (S-LTR.4.1 read with S-LTR.4.2). The 20-year condition in paragraph 276ADE does not stand apart from these other conditions. It only becomes relevant if those other conditions are satisfied.
Owing to the errors vitiating the Upper Tribunal’s decision, which were not identified and corrected by the Court of Appeal, it was for the Supreme Court to decide whether article 8 obliged the Home Secretary to grant LTR to AM.
The Supreme Court held that AM’s right under article 8(1) of the ECHR is engaged to the extent that AM has been subject to an extended period of ‘limbo’ status without a grant of LTR, even though that situation has been brought about by his actions.
However, Lord Sales held the allocation of limbo status to AM was in accordance with the law under article 8(2). It was also a proportionate means of achieving a legitimate aim. Little weight should be given to AM’s private life because it has been established when AM was in the UK unlawfully and when his immigration status was precarious.
On the other hand, the deportation of foreign criminals is in the public interest, especially in respect of serious offending. For Lord Sales it was that public interest which AM has succeeded in undermining by his deliberate and fraudulent actions. In light of the state’s margin of appreciation in this context, the Home Secretary was entitled to decide that AM should not be granted LTR. Overall, the refusal struck a fair balance between AM’s rights and interests and the general interest of the community in the UK in maintaining effective immigration controls and focusing state benefits and other UK resources on citizens and lawful immigrants.
Comment
In this judgment, Lord Sales has sent a clear message to other persons such as AM that thwarting attempts to deport them from the UK will be central for the purposes of the relevant proportionality analysis under article 8. His Lordship let it be known that if an illegal immigrant in AM’s position was granted LTR following their successful attempts to obstruct removal, other foreign criminals in the same position could be incentivised to take similar steps and undermine the operation and enforcement of immigration control. He further stipulated that the 20 year rule is strictly reserved for those persons holding 20 years’ residence in the UK but only if they fall not to be refused LTR under the specified suitability requirements in the Immigration Rules. Ultimately, self-inflicted limbo failed to help AM in defeating the Home Office in the Supreme Court.
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