R (on the application of AM (Belarus)) (Respondent) v Secretary of State for the Home Department (Appellant) [2024] UKSC 13 On appeal from: [2022] EWCA Civ 780

25 April 2024

Mikhil Karnik

R (on the application of AM (Belarus)) (Respondent) v Secretary of State for the Home Department (Appellant) [2024] UKSC 13 On appeal from: [2022] EWCA Civ 780

Judgment has been handed down in the case of AM (Belarus), a Belarussian national against whom a deportation order remains in place but who is in limbo. There is no real prospect of his removal, the SSHD says, and the courts have upheld, that is because of his refusal to disclose his real identity, his status it is said is of his own making and so refusal to issue leave to remain is not unlawful.

Although the Court allowed the SSHD’s appeal, concluding that “[a]llocating limbo status to AM, with the benefits associated with that, rather than granting him LTR and the more extensive benefits associated with that, was a proportionate measure in pursuit of the legitimate aims”, Lord Sales, giving the only judgment, recognised at [107] :

“In my view, the right to respect for private life under article 8 is engaged and may be interfered with or may potentially become the basis for a positive obligation where an immigrant is subject to an extended period with limbo status, without a grant of LTR to enable them to have a more enhanced opportunity to participate in ordinary life, including by being able to foster self-respect and form relationships with others through seeking employment. That is so even if that situation has been brought about by the actions of the immigrant rather than by the force of external circumstances.”

He  recognised [52] Mendizabal v France (2010) 50 EHRR 50, which gives store to the fact that interference with an individual’s right to respect for private life under article 8 can arise where their immigration status is left uncertain by the host state, so that they are left in a precarious situation.

AM’s situation has been precarious since he arrived, his convictions date back to 1999, and have continued through to 2018. He was removed to Belarus in 2001 and refused entry, he was brought back to the UK and detained.  He has endured lengthy periods of immigration detention and has been interviewed by Belarus Embassy officials in the UK on several occasions and been rejected.  Whilst in detention he attempted suicide, he has significant mental ill-health.  He has had no permission to work and has “lived at the outer margins of society” [46].

In upholding the SSHD’s appeal the Court rejected the SSHD’s “extreme variant” where he sought to introduce the Gillberg exclusionary principle applicable to loss of reputation into the immigration area. Rather Gillberg v Sweden [2012] 34 BHRC 247 [GC] “is specific to the particular circumstances of the case and does not lay down an overarching principle that an individual can never complain of an impact upon their private life in relation to matters which arise as a foreseeable consequence of deliberate action they have taken themselves” [73].

At a practical level “The concepts of private life and family life overlap, and if courts were required to separate out interferences with them the likely outcome would be a high degree of arbitrariness” [85].

The court also concluded that Tribunals and courts should not try to follow the guidance in RA (Iraq) [2019] EWCA Civ 850 in future, as that amounted to a layering of guidance on top of the usual approach required by article 8 [64]. Instead the Court adopted a conventional four-stage approach to article 8 within the statutory framework.

In this sort of case the tension between the right to develop relations with the outside world and the public interest in immigration control then falls to be resolved through an assessment of proportionality. A material factor in that balance can be economic interests, on one hand minimisation of the cost of provision of welfare benefits and the protection of the employment market [115].

However economic interests need not necessarily work in the SSHD’s favour, especially where someone has an offer of genuine employment in an area where the labour market is in shortage, the health and care sectors are obvious examples.

Where judicial findings have been made that a person is thwarting his removal and remains intent to do so that becomes highly material in assessing proportionality [87]. And where a deportation order remains extant, and where they have not developed any substantial family or private life, then the right to develop relationships protected by article 8 will not be enough to compel the SSHD to grant leave to remain, even where there is no real prospect of removal.

However where a person’s position of limbo arises out of circumstances beyond their control and/or someone is destitute, or has real prospects of gainful employment or has developed private and/or family life roots, as the question remains one of proportionality the outcome is not inevitable. And even where a person’s limbo status is entirely out of their own making there is no rule of law that prohibits a proportionality assessment.

Mikhil Karnik of our Immigration and Asylum Team acted for AM, he is instructed by Karen Halliwell at Paragon Law and was led by Richard Drabble KC of Landmark Chambers

Judgement

https://www.supremecourt.uk/cases/docs/uksc-2022-0113-judgment.pdf

Press summary

https://www.supremecourt.uk/cases/docs/uksc-2022-0113-press-summary.pdf

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