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AM (Belarus), R. (On the Application Of) v Secretary of State for the Home Department
Factual and Procedural Background
The Respondent, a citizen of Belarus, entered the United Kingdom in 1998 and was refused asylum. He has multiple criminal convictions, including a sentence of 3½ years’ imprisonment for violent offences, and therefore meets the statutory definition of a “foreign criminal.” Repeated efforts by the Appellant (the Secretary of State) to deport the Respondent have failed because the Respondent persistently lied about, or refused to verify, his identity to the Belarussian authorities. As a result, since 2003 he has remained in the UK without leave to remain (“LTR”) but on immigration bail—labelled by the Court as a state of “limbo.”
Between 1999 and 2020 the Respondent launched multiple asylum claims, judicial reviews and human-rights challenges, all rejected save for one aspect: in 2021 the Upper Tribunal held that continuing to withhold LTR violated his right to private life under Article 8 ECHR. The Court of Appeal upheld that ruling. The Appellant appealed to the Supreme Court (per Judge Sales, delivering a unanimous judgment) which is the opinion summarised here.
Legal Issues Presented
- Whether a foreign criminal who deliberately obstructs his own removal can invoke Article 8 ECHR to compel the grant of leave to remain.
- Whether the Upper Tribunal misapplied the statutory public-interest framework in ss 117A-117C Nationality, Immigration and Asylum Act 2002.
- Whether reliance on RA (Iraq) introduced legal error into the Article 8 proportionality analysis.
- Whether paragraph 276ADE of the Immigration Rules lawfully reduced the weight of the public interest in the Respondent’s deportation.
Arguments of the Parties
Appellant's Arguments
- European jurisprudence (e.g. Dragan, Gillberg) shows Article 8 is unavailable where the claimant creates the complained-of situation.
- The Upper Tribunal erred by treating public-interest factors as “residual” once removal became unlikely.
- The Tribunal wrongly treated 20-years’ residence in para 276ADE as an “important yardstick” despite the Respondent’s failure to meet suitability criteria.
Respondent's Arguments
- An indefinite, self-perpetuating limbo violates his private-life rights; LTR with a right to work is the only proportionate remedy.
- The Tribunal correctly followed RA (Iraq), found “very compelling circumstances,” and struck a fair balance.
- The Gillberg exclusionary principle is inapplicable to immigration limbo cases.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| NA (Pakistan) [2016] EWCA Civ 662 | Reads “very compelling circumstances” test into s 117C(3) NIAA 2002 for medium-term offenders | Followed as governing interpretation of s 117C; Respondent failed to establish such circumstances |
| R (Munir) [2012] UKSC 32 | Confirms residual discretion to grant LTR outside the Rules | Cited to show discretion exists but is constrained by Article 8 proportionality |
| Ali [2016] UKSC 60 | Explains positive- vs negative-obligation analysis under Article 8 | Framework for proportionality adopted |
| R (Khadir) [2005] UKHL 39 | Person may be on bail without LTR if still “liable to detention” | Basis for legality of limbo status |
| RA (Iraq) [2019] EWCA Civ 850 | Four-stage guidance for limbo cases | Guidance rejected as too rigid; contributed to Tribunal’s error |
| R (Hamzeh) [2013] EWHC 4113 (Admin) | Granting LTR merely because removal is difficult would incentivise obstruction | Approved and applied |
| Jeunesse v Netherlands (2014) 60 EHRR 17 | States’ margin of appreciation in immigration/private-life cases | Used to define proportionality framework |
| Huang [2007] UKHL 11 | Four-stage proportionality test | Adopted as analytical structure |
| Aguilar Quila [2011] UKSC 45 | Same proportionality steps reinforced | See above |
| Mendizabal v France (2010) 50 EHRR 50 | Uncertain immigration status can itself engage Article 8 | Confirmed Respondent’s Article 8 engagement |
| Hoti v Croatia (2018) | Positive obligations possible in limbo situations | Cited for threshold engagement |
| Gül v Switzerland (1996) 22 EHRR 93 | State’s right to control entry/residence | Public-interest baseline |
| Rees v UK (1987) 9 EHRR 56 | Legitimate aims relevant to both positive & negative obligations | Analytical support |
| MA v Denmark (2021) GC | Wide margin of appreciation in immigration/ economic well-being | Reinforces deference to Parliament |
| Pormes v Netherlands (2020) | Private life created during precarious stay usually attracts little weight | Applied via s 117B(4)-(5) |
| R (SC) [2021] UKSC 26 | No Article 8 right to minimum standard of living; wide margin in welfare policy | Supports limited support on NASS rather than full LTR benefits |
| Petrovic v Austria (1998) 33 EHRR 14 | Welfare benefits generally outside Article 8 | Same point as above |
| Chapman v UK (2001) 33 EHRR 399 | No Article 8 duty on state to provide a home | Cited re welfare scope |
| Carson v UK (2010) 51 EHRR 13 | Deference in socio-economic policy | See welfare analysis |
| R (RJM) [2008] UKHL 63 | Court should defer on resource allocation | Applied to welfare aspects |
| R (A) v CICA [2021] UKSC 27 | Deference in social-policy judgments | Same context |
| Dragan v Germany (2004) | Article 8 claim fails where applicants engineered statelessness | Used by Appellant; distinguished by Court |
| Gillberg v Sweden (2012) GC | “Gillberg principle”: cannot rely on consequences of own wrongdoing | Ultimately rejected as a bar but behaviour still weighed heavily |
| Denisov v Ukraine (2018) GC | Foregrounds Gillberg extension to misconduct cases | Considered; not exclusionary here |
| Bingöllü v Turkey (2021) | Illustrates Denisov extension | Not determinative |
| Evers v Germany (2020) | Contact ban as foreseeable consequence of misconduct | Cited in Gillberg analysis |
| Dudgeon v UK (1982) 4 EHRR 149 | Criminal law may itself violate Article 8 when it punishes protected conduct | Used to distinguish Gillberg scenario |
| R (Limbuela) [2005] UKHL 66 | Threshold for Article 3 in welfare context | Not reached on facts; basic NASS support sufficient |
| Ramadan v Malta (2017) 65 EHRR 32 | Revocation of citizenship; no Article 8 right to particular status | Supports Secretary of State’s position |
| Shevanova v Latvia (2007) GC | Applicant’s fraudulent conduct relevant in Article 8 balancing | Cited as analogous |
| Abdullah [2013] EWCA Civ 42 | Limbo self-induced; Article 8 claim unarguable | Endorsed |
| Antonio [2022] EWCA Civ 809 | Applicant “author of his own misfortune” undermines Article 8 claim | Cited as domestic support |
| OH (Serbia) [2008] EWCA Civ 694 | Public interest in deporting foreign criminals | Affirms strength of public interest |
| Rhuppiah [2018] UKSC 58 | Meaning of “precarious” and weight of private life | Applied to give little weight to Respondent’s private life |
Court's Reasoning and Analysis
1. Engagement of Article 8. The Court accepted that long-term limbo engages the right to private life, but emphasised that Article 8 does not guarantee welfare, work, or a particular immigration status.
2. Rejection of a Gillberg Bar. The Court declined to treat the “Gillberg exclusionary principle” as an absolute bar to the Respondent’s claim. Nonetheless, deliberate obstruction of removal is “a highly material factor” in the proportionality balance.
3. Statutory Framework. Applying ss 117A-117C NIAA 2002, the Respondent—being a medium-term foreign criminal—falls within s 117C(3); deportation is in the public interest unless “very compelling circumstances” exist. None were found.
4. Errors in the Upper Tribunal. The Tribunal:
- Followed RA (Iraq), leading it to classify the public interest as “residual” once removal became unlikely.
- Treated para 276ADE’s 20-year residence rule as diminishing the public interest, overlooking that the Respondent failed multiple suitability criteria.
- Gave insufficient weight to the Respondent’s persistent dishonesty and to deterrence and public-confidence rationales.
5. Correct Proportionality Exercise. The Court re-balanced:
- Individual side: Minimal private life, basic NASS support prevents destitution, healthcare available for emergencies.
- Public-interest side: Strong statutory imperative to deport foreign criminals; systemic need to deter obstruction; fiscal and labour-market considerations; Respondent wholly responsible for ongoing presence.
Given those factors, maintaining limbo status (with bail, but without LTR) is a proportionate interference and within the State’s margin of appreciation.
Holding and Implications
HELD: The appeal is ALLOWED; refusal to grant leave to remain does NOT violate Article 8.
Direct consequence: the Respondent remains on immigration bail without the right to work or access full welfare benefits. Broader implications: (i) tribunals should stop applying the four-stage RA (Iraq) guidance; (ii) deliberate obstruction of removal carries heavy weight against an Article 8 claim; (iii) paragraph 276ADE’s 20-year rule does not dilute the statutory public interest in deporting foreign criminals.
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