R (on the application of AM (Belarus)) (Respondent) v Secretary of State for the Home Department (Appellant) [2024] UKSC 13

Summary

The case of R (Belarus) v Secretary of State concerns a Belarusian national (“AM”) who arrived in the UK via a lorry in 1998, seeking asylum on the grounds of political oppression. His application was rejected, and he was deported back to Belarus in 2001. Upon arrival, he lied about his details, including that he was not a Belarusian citizen, which inevitably caused his refusal of entry and return to the UK. He further lied to the UK authorities with different details which initiated the prolonged process of his applications to remain in the UK. In the following years, AM received more rejections and multiple criminal convictions whilst his case progressed to the Supreme Court, which ultimately dismissed his appeal in 2024; 26 years after AM originally arrived in the UK.

The Facts

AM entered UK on a lorry on the 8^th of January 1998, seeking on the grounds of political opposition. Four days later, he used a false identity and forged documentation claiming employment. On the 12^th of December 2000, his asylum claim was denied which led to his initial deportation back to Belarus on the 29^th June 2001. Belarus does report large numbers of political prisoners, through the Viasna Human Rights Centre, and is subject to heavy criticism for human rights violations, along with the persecution of non-governmental organisations, independent journalists, national minorities, and opposition politicians. However, the adjudicator found that AM was not of any interest to the Belarusian authorities and therefore he did not qualify for political asylum.

Upon arrival in Belarus, AM lied about who he was, namely stating he was not a Belarusian citizen. Because of this deception, the Belarusian authorities refused his re-entry and returned him to the UK the following day. Upon re-arrival in the UK, he further lied to British Authorities by providing them with different details than the ones he had provided when he had first arrived in the UK in January. The key difference was a new name and that he had left Belarus in 1986, prior to the break-up of the Soviet Union, meaning he would not have been recognised as a citizen of Belarus. Ultimately, AM’s second asylum claim was refused, which AM appealed.

AM did admit that the second claim was false, in February 2002. In October 2022, The British Embassy discovered that none of the schools in Belarus that AM claimed to have attended had records of him, and in November they further notified the Secretary of State that the ID AM had initially provided regarding employment, was false. Following these discoveries, AM attended the Belarusian Embassy with a travel application form, photographs and biometric information, as per the Secretary of State’s demands. At this point, the Belarusian Embassy informed the Secretary of State of AM’s former denials of being a Belarusian citizen and fake details.

After the complicated history of AM refusal and inconsistencies, it was clear that returning him to Belarus was proving difficult. He was therefore released from Immigration detention on temporary admission in December 2003. AM attempted further submissions, which were ultimately denied, along with permission to appeal with judicial review.

Between his temporary admission in December 2003 and filing a claim for judicial review (for failure to provide leave to remain or permission to work) AM was convicted of numerous criminal offences, including drug offences, communication offences, and the possession of false documents and instruments. This led to AM’s detention under immigration powers following the expiration of his sentence in August 2008, although he was later released on immigration bail in September 2009.

On the 15^th of September 2010, AM filed a claim for judicial review for continuous failure to provide him with leave to remain or permission to work. This application was granted on the 17^th of May 2011, with the Secretary of State agreeing to reconsider AM’s submissions for a new asylum application resulting in his judicial review being stayed. The Secretary of State refused the further application to which AM appealed to the First-Tier Tribunal. The case was heard by the First-Tier Tribunal (“FTT”), which found that Belarus’s refusal to re-admit AM was due to his own false claims about his nationality and not due to his alleged political opposition. Therefore, on March 30^th, 2012 the FTT Judge dismissed AM’s appeal. Following the FTT dismissal, AM was granted permission to apply to the Upper Tier Tribunal.

A timeline of subsequent events is as follows:

• On 19 January 2016, the Secretary of State submitted another travel document application to the Belarusian authorities on behalf of AM, during this process, AM continued to be maintained on temporary admission.
• On 9 February 2017, AM applied for leave to remain in the UK as a stateless person. However, this application was refused five months later due to his history of misinformation. It was further concluded that AM had intentionally concealed his true identity in an effort to remain in the UK and that he was not stateless.
• On 19 July 2017, a member of the Statelessness Determination Team at the Home Office wrote to AM’s solicitors urging his representatives to seek assistance on his behalf, noting that AM had conveyed that he was at “immediate risk of committing suicide/seriously self-harming or attempting suicide.”
• On 30 November 2017, AM was convicted of possessing a knife in a public place and was sentenced to 16 weeks of imprisonment, which was suspended for 12 months.
• Subsequently, on 7 December 2017, AM faced further accusations involving two counts of possession of a knife in a public place.
• On 8 March 2018, AM was assaulted, following an alleged kidnapping and he was also reported to be experiencing psychotic symptoms, noted to be a result of the delays in the Home Office of reaching a decision on his case.
• On 9 May 2018, the Home Office wrote to AM’s solicitors, informing them that AM had been diagnosed with psychotic symptoms, including hallucinations and depression. The letter noted that AM had made several suicide attempts while held in detention. Enclosed with the letter was a Home Office decision refusing AM’s application for leave to remain.
• On 13 July 2018, AM applied to reinstate the judicial review proceedings, which had been previously stayed. AM also sought to add a second ground challenging the refusal to grant him leave to remain as a stateless person. Both applications were granted on 31 July 2018, and the claim was transferred to the Upper Tribunal Immigration and Asylum Chamber (“UTIAC”), with the ground relating to statelessness to be considered.
• On 11 September 2018, AM was sentenced to an accumulated sentence of 42 weeks’ imprisonment, for two counts of possession of an offensive weapon from 7 December 2017 and the 16-week suspended sentence imposed on 30 November 2017.
• On 27 November 2019, AM’s application for leave to remain as a stateless person was refused by the Secretary of State. The refusal was based on the conclusion that AM had provided no substantive proof that the name he used was his real name. It was suggested that if AM’s name was genuine, the Belarusian authorities would have been able to trace records of his schooling, work, or healthcare, even if his birth was not registered in Belarus. The Secretary of State determined that AM had been dishonest about his identity and therefore concluded that AM was not stateless. It was further found that AM had “adopted a wilful strategy of lies, obfuscation, and deceit to confuse and obstruct endeavours to confirm” his identity. Additionally, AM failed on suitability grounds due to his conviction on 11 September 2018 and his overall conduct, including his criminal record, character, and associations.
• In June 2020, it was noted that AM was being treated for drug misuse, and had sustained a head injury and left frontal bone osteoma (a benign bone-forming tumour) following an assault in 2018. AM had experienced attacks suggestive of generalised seizures following the assault, which were considered strongly indicative of epileptic seizures. These conditions were indicative of AM’s behaviour and life in the UK, along with presenting evidence as to his state of mind and health.

Upper Tribunal (Immigration and Asylum Chamber)

On February 11, 2021, the Upper Tribunal Immigration and Asylum Chamber (UTIAC) determined that deporting AM to Belarus was highly unlikely. As a result, the continued refusal to grant him leave to remain and permission to work in the UK was found to violate his rights under Article 8 of the European Convention on Human Rights (ECHR). The Tribunal ruled that AM was not stateless, as Belarus’ refusal to accept him was due to his own dishonesty. The UTIAC concluded that AM could not be removed from the UK without infringing on his Article 8 rights but recognized the Secretary of State’s authority to keep AM under immigration bail conditions, given the low chance of his removal due to his lack of cooperation with Belarusian authorities. The UTIAC further concluded that there was no common law right for AM to remain in the UK and denying him leave to stay was not irrational.

The Tribunal noted that AM had been in a state of “actual limbo” for over two decades, with minimal private life connections in the UK and a criminal history. Although AM had committed serious offences and was unlikely to become a “model member of society,” medical evidence suggested the potential for self-improvement. While AM did not meet the suitability criteria for leave to remain, his extensive residence in the UK was a significant factor in his favour. The UTIAC found that the low likelihood of removal and the lack of undermining effect on deterrence principles outweighed the public interest in immigration control, concluding that refusing AM’s application interfered with his Article 8 rights. The Tribunal also rejected AM’s claim of statelessness, attributing Belarus’ refusal to recognise him as a citizen to his failure to verify his identity.

On the 21^st of July 2020, the UTIAC granted AM permission to amend his grounds of challenge in the judicial review proceedings against the November 2019 decision. Evidence before the UTIAC indicated that AM suffered from various diseases, had abused drugs, and experienced low mood and hallucinations, exacerbated by the prolonged delay in resolving his case and his lack of status. AM’s solicitors argued that the UTIAC’s approach was inconsistent with European Court of Human Rights (ECtHR) caselaw, contending that the case involved a positive obligation under Article 8, not just an interference with AM’s rights. However, the court determined that the primary issue was whether AM’s rights had been infringed, rather than the nature of the obligations. The court found that AM’s inability to work due to immigration bail likely interfered with his private life under Article 8, especially considering the medical evidence.

AM’s counsel further argued that the UTIAC erred by focusing too narrowly on his life rather than considering the broader impact of granting leave to other illegal immigrants. The court emphasized that illegal work cannot justify a claim due to its negative impact on the rule of law, tax contributions, and immigration bail conditions. Finally, AM argued that the UTIAC improperly applied the “near miss principle,” but the Tribunal clarified that AM did not meet the requirements and was not treated as a near miss case. The UTIAC acknowledged that 20 years of residence in the UK is a significant factor and noted that previous applicants with time spent incarcerated could use both facts as material evidence in their decisions.

Judgment of the UTIAC

AM’s claim for judicial review was heard on November 11, 2020, with the decision and reasons being read on February 11, 2021.

The judges determined that the Secretary of State retained the authority to keep AM under immigration bail conditions, as there remained a prospect, regardless of how remote, of AM’s removal. This possibility was dependent on AM cooperating with Belarusian authorities, which could facilitate his removal. Consequently, the judges found no basis for a common law right to leave to remain, dismissing the argument that it would be irrational not to grant such leave. Therefore, AM’s only potential success in his claim rested on Article 8 of the ECHR.

The judges recognized that AM had been in “actual limbo” for over two decades, noting the “remote” prospects of removal, which would require AM to alter his entrenched stance. They acknowledged that AM had no family life in the UK and only minimal private life connections through friendships. His serious criminal offences, including violence, further complicated his case, though the extensive time he had spent in the UK was noted as significant. While the judges expressed scepticism that AM, if granted leave, would become a “model member of society” given his criminal history, they placed some weight on medical evidence indicating his “capacity for self-improvement” and found a modest reason to believe that AM might begin to turn his life around if granted leave.

The judges concluded that AM did not satisfy Exception 1 in section 17C(5) of the Immigration and Asylum Act 2002, as he had never been lawfully resident in the UK and was not socially or culturally integrated. Moreover, they held that a “dispassionate” member of the British public would not perceive AM as having achieved a better life in the UK, and thus granting him leave would not encourage others to follow his example.

Ultimately, the judges found that the combination of the remoteness of removal and the lack of material damage to the principle of deterrence weakened the public interest in immigration control to the point where it was outweighed by the very compelling circumstances of AM’s case under Article 8 of the ECHR. As a result, AM’s claim under Article 8 succeeded, and the UTIAC declared that continuing to refuse him leave to remain would constitute a disproportionate interference with his rights. However, AM’s claim for statelessness was rejected, as the judges found that Belarus’s refusal to recognize him as a citizen was due to his persistent dishonesty regarding his identity.

Legal Issues

Central to this case is the Secretary of State’s repeated refusal to grant AM leave to remain in the UK or permission to work, despite the remote possibility of deporting him to Belarus. This refusal raised questions about whether it violated AM’s rights under Article 8 of the European Convention on Human Rights (ECHR), which protects the right to respect for private and family life.

Previous cases, such as R (Khadir) v Secretary of State for the Home Department [2005] UKHL 39 highlight that once removal becomes highly unlikely, it may be unjustifiable to deny leave to remain. The RA (Iraq) (Respondent) v Secretary of State for the Home Department (Appellant) [2020] EWCA Civ 1176 case was used to assist in defining actual ‘limbo’ and outlined a four-stage analysis for Article 8 claims. The appeal references Mendizabal v France. 51431/99 and argues that RA (Iraq) provides the appropriate framework for these cases. The Upper Tribunal, Immigration and Asylum Chamber (“UTIAC”) adhered to this guidance, and the appeal therefore questioned whether the tribunal had erred in its application of this.

The crux of AM’s case was the legal issues related to individuals in a state of “limbo,” where there is no immediate prospect of deportation, but they lack formal leave to remain. Therefore, the core question is whether the refusal to grant AM leave to remain while he is in such a state constitutes a disproportionate interference with his Article 8 ECHR rights, as found by the UTIAC.

The Secretary of State’s argument was that the UTIAC’s decision was inconsistent with European Court of Human Rights case law and misapplied established principles. Specifically, the appeal raises concerns about the UTIAC’s focus on AM’s benefits from his prolonged stay in the UK, the improper application of a ‘near miss’ principle, and insufficient consideration of the broader implications of granting leave on immigration policy. AM countered that the UTIAC’s application of the law was correct and that the Secretary of State’s appeal was a disagreement with the findings, as opposed to the process or legality.

One other area considered by The Supreme Court was the ‘temporary admission’ that individuals in limbo were temporarily granted under the Immigration Act 1971, a provision now replaced and known as “immigration bail” under the Immigration Act 2016. Previous case law, such as R (Khadir), affirmed the legality of temporary admission even when removal was unlikely. However, it is noted that it imposed significant restrictions on an individual’s ability to contribute to society. R (on the application of MS, AR & FW) v. Secretary of State for the Home Department [2009] EWCA Civ 1310 further established that once removal prospects become remote, it may be unreasonable to deny an individual some form of legal status.

The appeal thus centred on whether the UTIAC appropriately applied the legal standards established in these precedents and whether it correctly balanced AM’s rights against the public interest in maintaining effective immigration control.

Supreme Court Judgment

The key points discussed in the judgment of The Supreme Court were AM’s ‘limbo status’ and Article 8 rights relating to this, in addition to proportionality and further economic interests.

Limbo Status and Article 8 Rights:
The Supreme Court recognised that AM’s limbo status potentially engages Article 8 of the ECHR, which places an obligation on the state to resolve an individual’s status, even if the situation is of the individual’s making. The Court relied on Mendizabal v France and rejected the previously discussed Gillberg v Sweden 41723/06 principle. It emphasised that an individual’s actions do not negate their right to complain and appeal about the impact on their private life, thereby protecting their rights under Article 8. Ultimately, the Supreme Court did find that AM was not stateless but rather failed to establish his identity convincingly to the Belarusian authorities, partly due to inconsistencies in his claims about his family in Belarus. This undermined his statelessness argument and reinforced the judgment’s focus on his Article 8 rights.

Proportionality and Economic Interests:
When considering AM’s case in conjunction with his entrenched position of statelessness, the Court emphasized the importance of proportionality in balancing the right to develop relationships, as AM had exercised over two decades in the United Kingdom, against the public interest in immigration control. While economic factors play a significant role in this balance, the potential for employment does not always favour the individual. The Secretary of State’s argument, which aligned with AM’s criminal history, was somewhat disregarded. Although AM had few relationships, no family, and few friendships, his lengthy stay in the UK and substantial criminal history were key considerations. The Court noted that factors such as criminal history can negate efforts to integrate into society, thereby affecting the balance that informs the Secretary of State’s decision on employment. The Court considered these factors but emphasized that potential employment and private and family life are not the only factors in the balance.

Conclusion of Judgment:
The Supreme Court concluded that an individual’s limbo status resulting from their own actions, with no substantial private or family life, does not compel the state to grant leave to remain. The Court stressed the importance of a proportionality assessment in each case, noting that the outcome is not predetermined, even if other individuals in similar situations have self-inflicted statuses, as seen in AM’s case on deportation.

Commentary

To fully understand AM’s difficulties stemming from not having the right to remain in the UK or permission to work, it is essential to examine the consequences of his limbo status. Without formal permissions, AM lacked access to NHS services beyond emergency treatment, could not enter into tenancy agreements, open bank accounts, or receive extensive social welfare benefits. Although ineligible for most support, he received limited assistance from the National Asylum Support Service (NASS), which provided a payment card for essentials such as food, clothing, and toiletries, along with accommodation. This support prevented potential violations of his rights under Article 3 of the ECHR, which protects against inhumane treatment and is afforded to all eligible asylum seekers. Despite the limited nature of this support, it was nonetheless provided despite the complexities arising from his prolonged stay in the UK and his actions that hindered his return to Belarus. AM’s appeal sought the right to work, better access to healthcare services, and additional welfare benefits, arguing that these would enable him to contribute more effectively to society.

However, AM’s appeal faced challenges due to his criminal convictions, which included offenses such as criminal damage, drug possession, and weapon-related crimes. These convictions raise concerns about the credibility of his claims regarding his desire to be a productive member of society, as his criminal activities do not directly relate to his need for improved living conditions or access to better food. It can be argued that the Secretary of State has at significant cost, safeguarded AM’s rights against inhumane treatment and provided substantial, albeit limited, support despite his criminal history. This support has been significant but constrained, and AM’s criminal convictions and associated costs, including detention, undermine his claim to be a productive and beneficial member of society.

The Secretary of State’s response and the tribunal’s decisions focused on the broader implications of the case. The central issues revolved around AM’s repeated failures to properly apply for asylum in the UK and his dishonesty with both the Belarusian authorities, where he claimed not to be a Belarusian citizen, and the UK concerning his situation. Following these deceptions, AM committed various crimes of differing severity. When the Secretary of State appealed the decisions made by the First Tribunal and the Upper Tribunal, the impact of AM’s case on other immigration matters was a key consideration. From a broader perspective, if individuals seeking asylum in the UK could lie, extend their stay, and then use this to appeal decisions, ultimately being granted leave to remain and the right to work, the integrity of immigration control would be compromised, causing significant damage to the system.

AM’s continuous appeals eventually reached the Supreme Court. The arguments and grounds for these appeals were rooted in his own actions, extending from 1998, when he initially arrived, to 2024, when the Supreme Court delivered its judgment. His concerns about being stateless and in limbo stemmed from his dishonesty with both Belarusian and UK authorities, coupled with his criminal activities, including causing damage, illegal possession of various identities, offensive weapons, and drugs.

The Supreme Court considered whether AM’s rights under Article 8 of the European Convention on Human Rights were infringed. The central question was whether the lack of a reasonable expectation of successful deportation to Belarus meant that denying AM leave to remain violated his rights. It was deemed unrealistic to expect successful deportation due to AM’s repeated interference and attempts to obstruct his return to Belarus. Despite numerous applications and attempts by the Secretary of State to obtain the necessary travel authorization, AM’s actions were the primary obstacle to his deportation. His asylum claim, based on political opposition, was undermined by his initial dishonesty about his Belarusian citizenship and conflicting details, which further complicated and prolonged the matter.

The issue of AM’s criminality was also considered, particularly in relation to Article 8, which addresses interference with rights. Article 117C emphasises that the deportation of foreign criminals is in the public interest, with greater emphasis on deportation proportional to the seriousness of the offence. For foreign criminals sentenced to imprisonment of four years or more, deportation is required unless there are very compelling circumstances beyond the exceptions. In AM’s case, the numerous criminal convictions and the impact of his actions on the UK’s public interest were central to assessing whether his deportation was justified under these criteria.

Lord Sales, gave sole judgment –

“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 leave to remain 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.”

The Supreme Court’s judgment regarding limbo status and interference under Article 8 clarified that even if the individual’s situation results from their actions, the state’s obligation to resolve such a status remains. In AM’s case, his entrenched position was entirely due to his own actions, interfering with his deportation to Belarus and asylum applications. Therefore, the Supreme Court’s case concerning AM, and the Secretary of State sets a valuable precedent for clarifying the position and obligations surrounding immigration applications connected to limbo status.

Written by Lana Wilks