In AM (Belarus) v Secretary of State for the Home Department [2024] UKSC 13, in a judgment delivered by Lord Sales, the Supreme Court has held that a man living in the United Kingdom for twenty six years with no immigration status was not entitled to status on human rights or other grounds because it was his own fault. He had repeatedly been found by the Home Office and judges to be a national of Belarus but when removed there in 2001 had claimed to the Belarussian authorities not to be a citizen. They refused to accept him and he was therefore returned to the UK. Since then he had continued to obstruct efforts to redocument him as Belarussian and remove him there.

Normally a person with twenty years of illegal residence can apply for legal status under the immigration rules. This was not open to AM, though, because he had committed several criminal offences and was therefore excluded from succeeding by the suitability criteria that apply to that route. He was therefore left relying on human rights grounds.

In the meantime, AM could not legally work, rent accommodation, access anything other than emergency NHS care, open a bank account or claim benefits other than destitution-level asylum support. He had developed very serious mental health and addiction issues and committed further offences. One was a false identity offence, perhaps rather unsurprisingly in the circumstances. This was described with considerable, arguably insulting, understatement by the Supreme Court as not “an especially enviable life”.

The Upper Tribunal held that AM was entitled to leave to remain on human grounds, his being a genuinely exceptional case. His example was hardly likely to inspire others to emulate him, given how miserable his existence in the UK had become. The Home Office appealed but the Court of Appeal agreed with the Upper Tribunal.

Allowing the Home Office appeal, the Supreme Court disapproved guidance from the Court of Appeal on limbo cases from the earlier case of RA (Iraq) v Secretary of State the Home Department [2019] EWCA Civ 850.

The proper approach is for a court firstly:

to examine what are the effects upon the individual associated with the type of limbo in which they are placed and then to assess if they are serious enough to qualify as an interference with the right to respect for private life (or family life, as the case may be) or as a matter potentially engaging the positive obligation of the state under article 8

Para 65

If so, the court should then assess proportionality following the normal four-stage approach:

(i) is the aim sufficiently important to justify interference with a fundamental right?

(ii) is there a rational connection between the means chosen and the aim in view?

(iii) was there a less intrusive measure which could have been used without compromising the achievement of that aim?

(iv) has a fair balance been struck between the rights of the individual and the general interest of the community, including the rights of others?

The Supreme Court rejected the Home Office submission 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, referred to as the Gillberg principle after the Strasbourg case of Gillberg v Sweden (App no. 41723/06). However, the Supreme Court nevertheless accepted that in this case AM’s own conduct in thwarting his removal to Belarus was a ‘highly material factor for the purposes of the relevant proportionality analysis under article 8’:

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.

Para 87

The Upper Tribunal had failed to give any significant weight to this factor and had therefore erred in law. The Court of Appeal had failed to correct the error and the Supreme Court therefore took the task of determining proportionality upon itself.

The Upper Tribunal further erred in attaching too little weight to the public interest in AM’s removal. Comments by Simler J in the earlier case of Hamzeh are quoted by the Supreme Court with approval. If leave to remain were granted to an illegal immigrant because no enforced removal is possible this:

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.

Para 98

The need to maintain public confidence in the operation of immigration control had also been overlooked and the tribunal had attached too much weight to the fact of 20 years of residence because they had misunderstood the significance and role of the 20 year ‘rule’. A grant of status on that basis is conditional on other criteria also being met, which were not in this case.

Moving on to re-decide the case for itself, the Supreme Court accepts that AM’s situation engages article 8 of the European Convention on Human Rights. The proportionality question is then reframed:

The question then is whether the United Kingdom, which has been forced by AM to act as his involuntary and unwilling host in this way in violation of its own very strong public interest, is subject to a greater obligation under article 8 to make further provision for him out of public funds and to allow him access
to the employment market, so that he can compete for jobs with citizens and lawful immigrants.

Para 114

As well as reciting standard far-right talking points, it looks an awful lot like the Supreme Court is buying into the ‘lump of labour’ fallacy here. And doing so on its own account rather than simply saying the Secretary of State was not irrational in so stating.

Put like that, the outcome comes as no surprise: maintaining AM in limbo status is found to be a proportionate response:

Allocating 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 of maintaining effective immigration controls and focusing state benefits and other resources on citizens and lawful immigrants. The position arrived at in relation to AM struck a fair balance between his individual rights and interests and the general interest of the community which fell within the margin of appreciation to be accorded to the United Kingdom and to the Secretary of State as its representative.

Para 117

So, it looks like AM will stay in a permanent limbo, maintained forevermore at public expense rather than being permitted to stand on his own feet, get a job and contribute to growing the economy and society of which he is part.

Comment

Lord Sales may be living up to his promise as the United Kingdom’s answer to the United States’ Justice Scalia.

Illegal Migration Act aficionados will be taking note of the approach here to grants of status on human rights grounds. This is because the Illegal Migration Act forbids the government from granting immigration status to any person who has arrived illegally since 7 March 2023. So far, that is some 73,000 individuals. The only exception is where omitting to grant status would breach their human rights.

There is no human right to be granted status, though, other than in the very narrow circumstances the court canvasses here in relation to Mendizabal v France (2010) 50 EHRR 50:

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, experiencing uncertainty and significant disruption to their life over a long period.

Para 52

On the approach of the Supreme Court in AM, a person who arrived after 7 March 2023 who actively resists removal to Rwanda or any other third country could presumably never be granted status because they will never have a human right to such status. Due to Rwanda’s limited capacity to accept people, this is only ever likely to affect a very small subset of the 73,000 people current prohibited from status but the implications are still concerning.