The Secretary of State for the Home Department v R AM
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dingemans,Lady Justice Nicola Davies,Lord Justice Moylan |
| Judgment Date | 10 June 2022 |
| Neutral Citation | [2022] EWCA Civ 780 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2021-000493 formerly C2/2021/0485 |
[2022] EWCA Civ 780
Lord Justice Moylan
Lady Justice Nicola Davies
and
Lord Justice Dingemans
Case No: CA-2021-000493 formerly C2/2021/0485
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
The Hon. Mr Justice Lane President and
Upper Tribunal Judge Rimington
JR/5220/2018
Royal Courts of Justice
Strand, London, WC2A 2LL
Rory Dunlop QC and Tom Tabori (instructed by Government Legal Department) for the Appellant
Amanda Weston QC and Mikhil Karnik (instructed by Paragon Law) for the Respondent
Hearing dates: 4 & 5 May 2022
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email and released to The National Archives. The date and time for hand-down is deemed to be 10.45 hrs on 10 June 2022.
Introduction and issues on the appeal
This appeal raises issues about the circumstances in which an individual, who is in a state referred to in the authorities of “limbo”, may be entitled to some form of status pending their removal. Previous decisions have described “limbo” as being a state where an individual has no leave to remain in the United Kingdom, but there is no current prospect of that individual being deported from the UK.
This is an appeal by the Secretary of State against the order of Mr Justice Lane, President of the Upper Tribunal (Immigration and Asylum Chamber) (“the UTIAC”) and Upper Tribunal Judge Rimington (“the judges”) dated 11 February 2021. The UTIAC declared that the Secretary of State's refusal to grant leave to remain to AM infringed AM's rights under article 8 of the European Convention on Human Rights and Fundamental Freedoms (“ECHR”). Domestic effect has been given to the ECHR by the Human Rights Act 1998 (“ HRA 1998”).
The Secretary of State raises four grounds of appeal. These are: first that the UTIAC's declaration that the refusal to grant leave was a disproportionate interference with AM's article 8 ECHR rights was inconsistent with case law from the European Court of Human Rights (“ECtHR”); secondly that when considering the effect of a grant on immigration control, the UTIAC wrongly focused on the benefits to AM of his time in the UK, rather than the impact of a grant in this case on other recalcitrant illegal entrants; thirdly the UTIAC wrongly applied a ‘near miss principle’ by taking into account, as a material factor in his favour, the fact that AM ‘nearly’ met the requirements of paragraph 276ADE of the Immigration Rules because he had spent twenty years in the UK, and the UTIAC was wrong to treat this as an ‘important yardstick’; and fourthly the UTIAC failed to give due weight to the Secretary of State's assessment of the consequences, to other cases, of granting leave to remain in this case.
AM resists the appeal and says that the UTIAC applied the relevant law properly. There was no legal error by UTIAC and the Secretary of State is simply expressing a disagreement with UTIAC's assessment, which is not a proper basis for an appeal. AM originally sought to rely on a respondent's notice to affirm the judges' order on other grounds, but in the final event the grounds set out in the respondent's notice were not pursued. The respective positions of AM and the Secretary of State became more refined in the course of submissions.
I am very grateful to Mr Rory Dunlop QC and Ms Amanda Weston QC, and their respective legal teams, for the helpful written and oral submissions in this case. I set out below the relevant legal framework within which the issues arise. This legal framework was common ground between the parties.
Immigration detention and leave to remain
Previous decisions have described “limbo” as being a state where the individual has no leave to remain in the United Kingdom, but there is no current prospect of the individual being deported from the UK because there is no realistic prospect of removal within a reasonable time. As there is no current prospect of removing the individual from the UK the Secretary of State for the Home Department (“the Secretary of State”) is not entitled to detain the individual in immigration detention. This is because the power to detain in immigration detention is so that persons can be removed and if there is no current prospect of removal the power of detention cannot be exercised, see generally R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704.
If the individual has no leave to remain, but cannot be detained pending his removal, he has a status which used to be known as “temporary admission” under paragraphs 16(2) and 21 of Schedule 2 of the Immigration Act 1971. The fact that the person could not be kept in detention raised the question whether the Secretary of State had power to grant only temporary admission, rather than leave to remain.
In R(Khadir) v Secretary of State for the Home Department [2005] UKHL 39; [2006] 1 AC 207 the House of Lords held that it was lawful to restrict a person to temporary admission, even though the prospect of removing that person was remote. This was notwithstanding the fact that the individual on temporary admission would be subject to a regime which had been sanctioned by Parliament and was described as harsh, see paragraph 34 of R(Khadir). It was common ground that such a person had no right to work in the UK, might be directed to live in accommodation by the Secretary of State, would have no right to benefits but would be provided with vouchers for food, and would have access only to basic care by a GP under the National Health System, see paragraph 63 of RA(Iraq) v Secretary of State the Home Department [2019] EWCA Civ 850; [2019] 4 WLR 132. In this case the evidence showed that AM survived on short term support provided by the National Asylum Support Service (“NASS”), living in NASS provided accommodation, as directed by the Secretary of State, and receiving £35.39 per week on a payment card for food, clothing and toiletries, see paragraphs 48 and 73 of the UTIAC.
Temporary admission under schedule 2 of the Immigration Act 1971 has now been replaced, by what is known as “immigration bail” pursuant to paragraph 1(2) of Schedule 10 to the Immigration Act 2016, see generally R(Kaitey) v Secretary of State for the Home Department [2021] EWCA Civ 1875. In R(Kaitey) it was estimated that there may be more than 90,000 people on immigration bail. One of the reasons for the large number is because there are persons such as AM who have been refused leave to remain but who cannot, either for practical or legal reasons, be removed. Another reason for the large number is because of the length of time it takes for the Secretary of State to make decisions on cases involving victims of trafficking and asylum, which was the subject of comment in paragraph 91 of EOG v Secretary of State for the Home Department [2022] EWCA Civ 307.
In R(Khadir) at paragraph 4 it was recognised by Baroness Hale that there may come a time when the prospects of a person ever leaving voluntarily or being removed were so remote that it would be irrational to deny that person “the status which would enable him to make a proper contribution to the community here”. This was described in the submissions before us as a common law right to leave to remain for those in limbo.
The issue was revisited in R(MS, AR and FW) v Secretary of State for the Home Department [2009] EWCA Civ 1310; [2010] INLR 489. (This has been referred to as either R(MS) or as R(AR) in various reports, so I will refer to it as R(MS, AR and FW) in an effort to avoid confusion). In R(MS, AR and FW) the Court of Appeal confirmed that an individual could be restricted to temporary admission so long as there remained some prospect of removal. It was confirmed that once the prospect of removal had disappeared it would be irrational to deny that individual some status of leave to remain. In R(MS, AR and FW) at paragraph 24 the Court left open the question whether keeping an individual on temporary admission for excessively long periods might infringe their rights under article 8 of the ECHR. Having set out the relevant legal test for the common law right to leave to remain for those in limbo, the Court adjourned the appeals of MS and FW to determine whether there was some prospect of removal. It is apparent from the Editor's Note on the report that MS was subsequently granted indefinite leave to remain.
The question left open in R(MS, AR and FW) was answered in, among other cases, RA(Iraq). In RA(Iraq) there was a review of domestic authorities and two judgments of the ECtHR. At paragraph 63 the Court identified a form of prospective limbo, where a deportation order might be made but has not been made, and actual limbo, where a deportation order has been made. In the case of prospective limbo it was noted that under section 3C of the Immigration Act 1971 such a person might be free to work and to enjoy a private and family life. Those persons would have had to have some form of leave to enter in order to be able to take advantage of section 3C of the 1971 Act.
In RA(Iraq) Haddon-Cave LJ suggested four stages of an analysis to determine whether there had been an infringement of article 8 of the ECHR in a case of limbo, and addressed these in paragraphs 63 to 72 of the judgment. Stage 1 was distinguishing between prospective and actual limbo. Prospective limbo was likely to weigh less heavily in the balance. Stage 2 was identifying whether the prospects of removal were remote. Stage 3 was a fact-specific analysis which would typically include a retrospective and prospective analysis. It would involve considering, among other matters, whether the impossibility of achieving...
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