R (on the Application of AM) v Secretary of State for the Home Department (Legal “Limbo”)
| Jurisdiction | UK Non-devolved |
| Judge | Lane J,Rimington UTJ |
| Judgment Date | 11 February 2021 |
| Neutral Citation | [2021] UKUT 62 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2021] UKUT 62 (IAC)
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Lane J (President) and Rimington UTJ
Mr M Karnik instructed by Paragon Law Solicitors, for the Applicant;
Mr R Fortt instructed by the Government Legal Department, for the Secretary of State.
AB (Sierra Leone) v Secretary of State for the Home Department 7 July 2017 (Case No: C5 2015 3121) Court of Appeal (Civil Division) (unreported)
AM (Belarus) v Secretary of State for the Home Department [2014] EWCA Civ 1506
AS (Guinea) v Secretary of State for the Home Department [2018] EWCA Civ 2234; [2019] Imm AR 341; [2019] INLR 157
Aristimuho Mendizabal v France 2006 ECHR 51431/99; (2010) 50 EHRR 50
BM (Iran) v Secretary of State for the Home Department [2015] EWCA Civ 491
Bossadi (paragraph 276ADE; suitability; ties) [2015] UKUT 42 (IAC); [2015] Imm AR 566
Devaseelan (Second Appeals — ECHR — Extra-Territorial Effect) Sri Lanka * [2002] UKIAT 702; [2003] Imm AR 1
HA (Iraq) v Secretary of State for the Home Department; RA (Iraq) v Secretary of State for the Home Department[2020] EWCA Civ 1176; [2021] 1 WLR 1327; [2020] INLR 639
NA (Pakistan) v Secretary of State for the Home Department; Secretary of State for the Home Department v KJ (Angola), WM (Afghanistan) and MY (Kenya)[2016] EWCA Civ 662; [2017] 1 WLR 207; [2017] Imm AR 1; [2016] INLR 587
R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704; [1984] All ER 983; [1983] Imm AR 198
R v Secretary of State for the Home Department ex parte Khadir [2005] UKHL 39; [2006] 1 AC 207; [2005] 3 WLR 1; [2005] 4 All ER 114; [2005] INLR 538
R (on the application of Abdulla) v Secretary of State for the Home Department 22 March 2016 (JR/6393/2013) UTIAC (unreported)
R (on the application of MS, AR and FW) v Secretary of State for the Home Department [2009] EWCA Civ 1310; [2010] INLR 489
R (on the application of Nhamo) v Secretary of State for the Home Department [2012] EWHC 422 (Admin)
RA (Iraq) v Secretary of State for the Home Department [2019] EWCA Civ 850; [2019] 4 WLR 132; [2019] Imm AR 1212; [2019] INLR 763
S and Others v Secretary of State for the Home Department [2006] EWCA Civ 1157; [2006] INLR 575
SH (Iran) and NA (Iran) v Secretary of State for the Home Department; AN (Iran),
SJ (Iran) and BA (Iran) v Secretary of State for the Home Department; BA (Ethiopia) v Secretary of State for the Home Department[2014] EWCA Civ 1469; [2015] INLR 272; [2015] Imm AR 352
Van Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97; [1996] 2 WLR 863; [1996] 4 All ER 256
European Convention on Human Rights, Artiele 8
Immigration Act 1971, section 11(1); paragraphs 8–10A, 12–14, 16 & 21 of Schedule 2
Immigration Act 2016, paragraph 1(5) of Schedule 10
Immigration Rules HC 395 (as amended), paragraphs 276ADE, 322(5), 360–360E, 399A & 401–403; sections S-LTR 1.1 to S-LTR 2.2. & S-LTR.3.1. to S-LTR.4.5. of Appendix FM
Nationality, Immigration and Asylum Act 2002, sections 67 & 117A-C
United Nations Convention relating to the Status of Stateless Persons 1954, Article 1(1)
Human rights — Article 8 of the ECHR — private life — proportionality — very exceptional circumstances — four-stage analysis in RA (Iraq)[2019] EWCA Civ 850 applied — legal “limbo” — procedure and process — removal — immigration bail — Khadir[2005] UKHL 39 applied—“impossibility” of removal
The Applicant, a citizen of Belarus, entered the United Kingdom in January 1998 at the age of 21. He applied for asylum on the grounds that he was a sympathiser of the Belarusian Popular Front and had been detained on several occasions and beaten. The application was refused, and his appeal was dismissed in December 2000. In 1999, he was sentenced to three and a half years' imprisonment for actual bodily harm and unlawful imprisonment. He was deported to Belarus in January 2001. He was refused entry on arrival and returned by the authorities to the United Kingdom the following day. He made a fresh asylum application on an admittedly false basis, giving a different name, and claiming that he had left Belarus in 1986. In June 2002, an Adjudicator dismissed the Applicant's second appeal, concluding that there was no evidence to show that the Applicant had any fear of persecution in Belarus. The Adjudicator noted that the Applicant had admitted lying to immigration officials, both in Belarus and in the United Kingdom.
The Secretary of State for the Home Department made extensive investigations with the Belarus and British Embassies to verify the Applicant's conflicting claims regarding his nationality and life in Belarus. In November 2003, a report concluded that removal within a reasonable time was not a realistic prospect and continued detention was therefore likely to be deemed unlawful. The Applicant was released in December 2003 having been detained for 1080 days. Thereafter, the Applicant made a fresh claim, the refusal of which was unsuccessfully challenged by judicial review proceedings in 2004.
In May 2008, the Applicant was sentenced to ten months' imprisonment for possession of a false instrument. In January 2009, the Belarus Embassy confirmed that there were no records of the Applicant and that he could not be considered a citizen of Belarus. In September 2011, the Secretary of State reconsidered the application for asylum but again refused it. In March 2012, the First-tier Tribunal dismissed the Applicant's appeal, finding that the refusal of the Belarus authorities to recognise the Applicant as a citizen or issue him with a travel document was not based on his political opposition but because he had failed to provide accurate information to enable the Belarus authorities to find any record of him. The Applicant's appeals to the Upper Tribunal and Court of Appeal were unsuccessful. Further enquiries at the Belarus Embassy in 2015 and 2016 produced no positive result. In September 2018, the Applicant was sentenced to 42 weeks' imprisonment for possession of an offensive weapon.
The Applicant suffered from hepatitis C and psoriasis. According to a medical report dated June 2020, he was being treated for drugs misuse and had started having attacks suggestive of generalised seizures following a head injury sustained in an assault while in detention. Except for the periods when the Applicant had been detained or imprisoned or was working illegally, he had been destitute, relying on charity and friends for support and accommodation.
In February 2017, the Applicant applied for leave to remain in the United Kingdom as a stateless person. The Secretary of State refused the application in November 2019, concluding that the Applicant had adopted a wilful strategy of lies, obfuscation and deceit to confuse and obstruct endeavours to confirm his identity. It was not accepted that the Applicant was inadmissible to Belarus.
In 2018, the Applicant was granted permission to apply for judicial review of the Secretary of State's continuing failure to grant him leave to enter or remain in the United Kingdom, as opposed to maintaining his status of immigration bail (formerly, temporary admission) (“ground one”). In July 2020, the Applicant was given permission to amend the grounds of challenge in order to challenge the decision of November 2019 in which the Secretary of State refused the application based upon alleged statelessness (“ground two”).
Held, granting the application in part:
(1) Pursuant to paragraph 1(5)(a) of Schedule 10 to the Immigration Act 2016 (“the 2016 Act”) and paragraph 16 of Schedule 2 to the Immigration Act 1971 (“the 1971 Act”), the relevant touchstone for whether an individual might be subject to immigration bail was that he or she was “liable to detention” pending removal. The practical consequences of being subject to immigration bail, without leave, were significant. They included severe restrictions on the person's ability to work and disqualification from access to all but emergency NHS treatment. Immigration bail was not time-limited but could last as long as there was “some prospect” of removal: R v Secretary of State for the Home Department ex parte Khadir[2005] UKHL 39 applied. That limit was not, however, easily reached. The Secretary of State's ability to subject a person to immigration bail only ended where there was “simply no possibility” of the individual being removed: R (on the application of MS, AR and FW) v Secretary of State for the Home Department[2009] EWCA Civ 1310 applied. There was an objective endpoint to the liability of an individual to detention and, thus, to immigration bail. Ultimately, the identification of that endpoint was for the courts to determine (paras 66 – 94).
(2) There was a crucial difference between, on the one hand, an individual escaping “limbo” by demonstrating that he or she was no longer “liable to detention”, by reason of the impossibility of removal in Khadir terms; and, on the other hand, the ability of that individual to succeed on the basis that, although that jurisdictional endpoint might not have been reached, he or she must be released from “limbo” because the Secretary of State's continuation of that state of affairs, though lawful on the face of the 1971 Act, would constitute a disproportionate interference with the individual's Article 8 ECHR rights: MS considered. Applying the four-stage analysis of Haddon Cave LJ in RA (Iraq) v Secretary of State for the Home Department[2019] EWCA Civ 850, an individual who was subject to immigration bail might still succeed in a human rights challenge, based on ending his state of legal “limbo” in the United Kingdom, where the case was of a truly exceptional nature. In order to satisfy stage two of the RA (Iraq) analysis, namely that the prospects of affecting deportation were remote, the applicant must...
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