R (on the application of AM (Belarus)) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Sales,Lord Lloyd-Jones,Lord Hamblen,Lord Stephens,Lady Simler |
| Judgment Date | 24 April 2024 |
| Neutral Citation | [2024] UKSC 13 |
| Court | Supreme Court |
[2024] UKSC 13
Lord Lloyd-Jones
Lord Sales
Lord Hamblen
Lord Stephens
Lady Simler
Appellant
Rory Dunlop KC
Tom Tabori
(Instructed by Government Legal Department (Immigration))
Respondent
Richard Drabble KC
Mikhil Karnik
(Instructed by Paragon Law (Nottingham))
Heard on 6 and 7 December 2023
Lord Sales ( with whom Lord Lloyd-Jones, Lord Hamblen, Lord Stephens and Lady Simler agree):
The respondent, AM, has been convicted of various offences in the United Kingdom and qualifies as a foreign criminal for the purposes of the Nationality, Immigration and Asylum Act 2002 (“the NIAA 2002”). The appellant Secretary of State wishes to deport him to Belarus, which is his state of nationality. However, AM has not been cooperative in relation to this and has successfully managed to thwart the Secretary of State's efforts to remove him. The result has been that AM has continued to be present in the United Kingdom, but without any grant to him of leave to remain (“LTR”).
As convenient shorthand I will refer to this as AM's “limbo” status. He is present in the United Kingdom without LTR to entitle him to be here, but is able to reside in the community because he has been granted immigration bail under paragraph 1(5)(a) of Schedule 10 to the Immigration Act 2016 (“the IA 2016”). So far as is relevant, that provision stipulates:
“A person may be granted and remain on immigration bail even if the person can no longer be detained, if –
(a) the person is liable to detention under a provision mentioned in sub-paragraph (1) …”
AM is within the scope of paragraph 1(5)(a) because he is “liable to detention” under paragraph 16(2) of Schedule 2 to the Immigration Act 1971 (“the IA 1971”), which is one of the provisions mentioned in subparagraph 1(1) of Schedule 10 to the IA 2016. Paragraph 16(2) of Schedule 2 to the IA 1971 provides that “if there are reasonable grounds for suspecting that a person is someone in respect of whom [removal directions] may be given …, that person may be detained under the authority of an immigration officer pending— (a) a decision whether or not to give such directions; (b) his removal in pursuance of such directions.” AM is such a person.
This appeal is concerned with AM's rights under article 8 of the European Convention on Human Rights (“article 8” and “the Convention”, respectively). Article 8 is given effect in domestic law as one of the Convention rights under the Human Rights Act 1998 (“the HRA”). Under section 6(1) of the HRA the Secretary of State is required to act in a manner that is compatible with the Convention rights, including article 8.
Article 8, headed “Right to respect for private and family life”, provides:
“(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Incidents of AM's limbo status are that (1) he has no permission to work in the United Kingdom (as some, but not all, persons with LTR would have); (2) he does not have full access to the services of the NHS (as a person with LTR would have), but is only entitled to receive emergency NHS treatment; (3) unlike a person with LTR, he is disqualified from entering into a tenancy agreement and from opening a bank account; (4) he receives only very limited social welfare benefits at the same level as any failed asylum seeker awaiting removal from the United Kingdom receives by way of what is called “short-term” support from the National Asylum Support Service (“NASS”), comprising a payment card for food, clothing and toiletries at a subsistence level and accommodation provided by NASS. The availability of these welfare benefits and access to emergency NHS treatment mean that AM is protected against destitution and from violation of his rights under article 3 of the Convention (protection against inhumane treatment). However, AM contends that, in order to comply with his right to respect for his private life under article 8, the Secretary of State is obliged to issue him with LTR for so long as his removal to Belarus is not possible, with permission to seek employment. He says that this would enable him to obtain work lawfully and be a productive member of society while also having access to better healthcare services and welfare benefits.
AM is a citizen of Belarus. He arrived in the United Kingdom in 1998, aged 21, and claimed asylum.
On 16 April 1999 AM was convicted of actual bodily harm and false imprisonment and was sentenced to imprisonment for 3 years and 6 months and recommended for deportation.
AM was interviewed for his asylum claim in 2000. The Secretary of State refused that claim in December 2000. AM appealed to an adjudicator (Mr Jordan) in accordance with the system then in place. In January 2001 his appeal was dismissed. The adjudicator made adverse credibility findings in respect of AM and found that he was of no interest to the authorities in Belarus and would not be at risk if returned there. In March 2001 AM's appeal against the adjudicator's decision was dismissed.
On 29 June 2001 AM was removed to Belarus. However, when examined upon arrival, AM provided false information which led the Belarussian authorities to believe that he was not, in fact, a citizen of Belarus. The result was that he was refused entry and was returned to the United Kingdom.
AM was held in immigration detention pending further efforts to remove him to Belarus. While in detention, AM made efforts to harm himself and attempted suicide.
For reasons which are not clear due to the passage of time, AM was permitted to bring a second appeal to an adjudicator (Mr Edwards) against the refusal of his asylum claim by the Secretary of State. The adjudicator issued his decision in June 2002. The adjudicator made his own adverse credibility findings in respect of AM as regards AM having admitted lying to immigration officials in Belarus by telling them that he was not a citizen of Belarus and also lying to immigration officials in the United Kingdom. The adjudicator found that AM is a citizen of Belarus and that he had no genuine fear of persecution there.
The Secretary of State continued to make efforts to gather information about AM's origins which would persuade the Belarussian authorities that he is a citizen of Belarus, so that he could be removed there. However, the impasse with the Belarussian authorities created by AM was not overcome. In February 2003 the Secretary of State arranged for AM to attend the Belarussian embassy to apply to travel to Belarus. The embassy informed the Secretary of State that AM had denied being a citizen of Belarus. The Belarussian authorities did not accept that AM was a citizen of Belarus and again refused him entry.
In view of the period AM had spent in immigration detention and the practical impediments to his removal, in December 2003 the Secretary of State released him from immigration detention on bail (or temporary admission, as it was called at that time), without LTR.
AM made a further claim for asylum, which was again refused by the Secretary of State in 2004. AM's attempt to challenge that decision in judicial review proceedings was dismissed.
On 1 May 2008 AM was convicted of possession of a false identity document and sentenced to 10 months' imprisonment. When due for release in August 2008, AM was again placed in immigration detention with a view to his removal from the United Kingdom. The Secretary of State made further efforts to obtain information which would persuade the Belarussian authorities that AM is a national of Belarus. However, problems remained which prevented AM's removal to Belarus and he was again granted bail in September 2009.
On 15 September 2010 AM filed an application for judicial review of the Secretary of State's failure to provide him with LTR or permission to work in the United Kingdom. AM was granted permission to apply for judicial review. However, upon the Secretary of State agreeing to reconsider the question whether AM should be granted asylum, the judicial review proceedings were stayed.
In September 2011, after reconsidering AM's case as a fresh claim for asylum, the Secretary of State again refused that claim. AM appealed to the First-tier Tribunal (“the FTT”).
In March 2012 the FTT dismissed the appeal, finding that Belarus's refusal to admit AM was due to AM's failure to provide accurate information about himself and his links to Belarus to enable the Belarussian authorities to trace him and confirm his nationality, rather than because of his being identified as a political opponent of the Belarussian authorities. The FTT made its own adverse credibility findings in respect of AM. In the proceedings in the FTT, AM agreed that he was a citizen of Belarus. The FTT found that if AM told the truth to the Belarussian authorities and provided them with accurate information, he would be accepted to be a citizen of Belarus and would be admitted.
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