The Court of Appeal has handed down guidance on “limbo” cases in RA (Iraq) v The Secretary of State for the Home Department [2019] EWCA Civ 850. These are cases where a migrant cannot be removed from the UK because, for example, conditions in their country of origin prevent it — but where they are also precluded from working, receiving benefits, renting property etc because they don’t have valid leave.

The argument put forward here was that the cumulative impact of these factors breached Article 8 of the European Convention on Human Rights, an argument ultimately rejected by the court.

The appellant RA was an Iraqi national who entered the UK when he was 16 and granted discretionary leave until he was 18. In 2007, he was sentenced to three years in a young offenders’ institution for robbery, having attacked an 81-year-old woman and attempted to rob her of £18,000. RA argued that since he could not be returned to Iraq, termination of his leave would him in a permanent state of limbo.

Interestingly, the court acknowledged there had never been a domestic case in which a “limbo” argument had succeeded. The only known example was in the European Court of Human Rights. The court therefore took the opportunity to set out a four-stage test in considering “limbo” arguments:

1. “Prospective limbo” i.e where someone still has leave whether because of section 3C or otherwise, is likely to be a weaker argument than those individuals who are in “actual limbo” i.e. those who have no leave to remain or against whom a deportation order has been made (thus cancelling their leave). That is because in prospective limbo cases, the person will not have suffered any day-to-day impact on their family or private life;
2. A person must not be capable of being removed/deported either immediately or in the foreseeable future and there must be no reason for anticipating change in the situation;
3. A retrospective and prospective analysis is needed of, for example, a person’s status, family circumstances, seriousness of the offence and the prospects of removal or deportation taking place;
4. Finally, a balancing exercise must be conducted between the public interest in maintaining an effective system of immigration control and a person’s Article 8 rights.  

The court ended with an apt quote from the Court of Appeal in a previous case:

There is no policy or practice whereby persons whose removal from the UK cannot be enforced, should… be granted leave to remain. It is not difficult to see why this should be the case. A policy entitling a person to leave to remain merely because no current enforced removal is possible, would undermine UK immigration law and policy, and would create perverse incentives to obstruct removal, rewarding those who fail to comply with their obligations as compared to those who ensure such compliance. Moreover, in the same way as immigration law and policy may change, so too the practical situation in relation to enforcing removal may change or fluctuate over time so that any current difficulties cannot be regarded as perpetual.

It isn’t hard to see why limbo arguments are not well-received by the judiciary. They basically entail saying that a person who may have committed egregious offences should be granted leave to remain where they can’t be removed/deported. Whilst that is a perfectly good point, it doesn’t appear to me that the reality of refusing leave was explored by the judges.

Suppose the appellant in this case did not have a partner and was a sole parent. Had he ended up on the streets, the local authority would absolutely have a duty to house him and his child. In a sense, it is just a government department shirking responsibility until another arm of the state is forced to do something about it.

Would it not perhaps be more appropriate for someone in that situation to be given time-limited leave to remain which, for example, may not be ultimately eligible for ILR but would at least allow the person to provide for their family? That would prevent the family members becoming a burden on the public purse. I cannot see why we resort to draconian measures to try to force people to return to countries they have just sought refuge from.