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

The present case concerned the support the applicant was entitled to whilst in the UK, and the State’s interest in maintaining an effective system of immigration control, and creating disincentives against circumvention of the system.  

The Court referred to the guidance by Haddon-Cave LJ In RA (Iraq), concerning persons in the UK with 'limbo' status, which the Upper Tribunal and the Court of Appeal had directed themselves to when reaching their decisions. Setting out the four stages in the guidance on the approach to be adopted, the Court stated that it was unduly rigid and distracted from the proper analysis required, and seemed to have contributed to the Upper Tribunal falling into error. In particular, the Court drew attention to the aspects of public interest that may be engaged in cases of limbo, in terms of maintaining an effective system of immigration control and targeting limited resources in relation to provision of welfare and other benefits. The Upper Tribunal had been led into error by giving insufficient weight to the residual public interest after recognising that it was unlikely for the respondent to be deported to Belarus, in favour of his right to respect for private life, which had been minimal.

The Court also discussed the Gillberg case and other relevant cases extending from it, which per the Secretary of State, laid down the principle that an individual can never complain of an impact upon their private life for matters that arise as a foreseeable consequence of their deliberate actions. The Court held that it was not appropriate to apply this principle in immigration cases. The Court noted that in a limbo case such as the current one, under Article 8 ECHR, there is acute tension between the rights and interests of the individual, and the interests of the general community in maintaining an effective system of immigration control, as the individual’s limbo status is likely to continue indefinitely. It does not follow that where an individual can thwart his or her removal indefinitely and is plainly intent on doing so, the Secretary of State is obliged under Article 8 to grant them LTR. The public interest in maintaining an effective system of controls and in containing welfare costs are relevant considerations, and the contributions of the individual in creating the situation in which they find themselves with limbo status are a highly material factor in the Article 8 proportionality balancing exercise. Therefore, when conducting the proportionality analysis, the Upper Tribunal was in error by failing to give any significant weight to the respondent’s deliberate actions in contributing to the situation in which he had limbo status.

Turning to consider the significance of Paragraph 276ADE of the Immigration Rules and the incentivisation of circumvention of immigration controls, the Court stated that the Upper Tribunal had further erred in its assessment of the strength of the public interest that the applicant should be removed, and if that was not possible, that he should be maintained by the State with limbo status instead of a grant of LTR. The Court stated that Paragraph 276ADE is a statement of the Secretary of State’s policy regarding the grant of LTR where a number of conditions are fulfilled, and not one regarding the weight to be attached to the public interest in the enforcement of immigration controls for the general application of Article 8. The Upper Tribunal’s reliance on Paragraph 276ADE was also not appropriate. The respondent had not fulfilled the requirements set out in the paragraph, and therefore the Tribunal did not properly consider the operation of the whole scheme of the paragraph.  

Regarding Article 8 EHCR, the Court held that the right to respect for private life is engaged and possibly interfered with or possibly becomes the basis for a positive obligation when an immigrant is subjected to limbo status for an extended period, without a grant of LTR to allow them to have a more enhanced opportunity to participate in ordinary life. This is so even when the situation was brought about by the immigrant’s actions, and not the force of external circumstances. Addressing the proportionality analysis, the Court stated that the maintenance of effective immigration controls was in the public interest. Little interest should be given to the applicant’s private life, as it was minimal and established at a time when the respondent’s immigration status was precarious. The deportation of foreign criminals was also in the public interest, and the respondent could be classified as a medium offender. The respondent had also succeeded in completely undermining the public interest for his deportation by his deliberate and fraudulent actions, imposing obligations on the State to provide for his needs out of public funds. The Secretary of State was entitled to treat the minimisation of the cost of welfare benefits and the protection of the employment market as legitimate objectives, as well as place great weight on the need to maintain effective immigration controls.

Therefore, the Court concluded that the Secretary of State was clearly entitled to decide that the applicant should not be granted LTR. Granting limbo status instead was a proportionate measure in pursuit of the legitimate aim of maintaining effective immigration controls and focusing State benefits and other resources on citizens and lawful immigrations. A fair balance had been struck between the applicant’s individual rights and interests, and the general interest of the community, which fell within the margin of appreciation that the State enjoyed.