When does refusal to grant Leave to Remain to an individual, who can’t be removed to their country of nationality, violate Art. 8 of ECHR? UK SC answers

Leave to Remain Art. 8 European Convention on Human Rights UK SC

Supreme Court of United Kingdom: While deliberating over the instant appeal by the Home Department wherein the issue was that under what circumstances will a refusal by the Home Secretary to grant leave to remain (“LTR”) to an individual, who cannot be removed to their country of nationality, violate that individual’s right to respect for private and family life under Art. 8 of the European Convention on Human Rights (Convention); the Bench of Lord Lloyd-Jones, Lord Sales*, Lord Hamblen, Lord Stephens, Lady Simler, JJ., unanimously allowed the appeal holding that that AM’s (respondent) own conduct in thwarting the attempts by the Home Secretary to remove him to Belarus is a highly material factor for the purposes of the relevant proportionality analysis under Art. 8 of ECHR.

It was further held that the Gillberg principle as laid down by the European Court of Human Rights, does not apply in the instant case, to the respondent. The Gillberg principle states that Art. 8 of the Convention has no application in circumstances where the repercussions for the applicant, of which he complained of, were all foreseeable consequences of his commission of the offence for which he was convicted of.

Background: AM (the respondent) is a citizen of Belarus. He arrived in the United Kingdom in 1998, aged 21, and claimed asylum. His asylum claim was refused in December 2000 and, following unsuccessful appeals, he was removed to Belarus on 29-06-2001. However, when examined upon arrival, the respondent provided false information which led the Belarussian authorities to believe that he was not a citizen of Belarus. As a result, he was refused entry in Belarus and was returned to the UK.

The respondent had been convicted of various offences in the UK and qualifies as a foreign criminal for the purposes of the Nationality, Immigration and Asylum Act 2002 (“the NIAA 2002”). Therefore, Secretary of State (appellant) sought to deport him to Belarus, which is his state of nationality. However, the respondent had not been cooperative in relation to this and had successfully managed to thwart the Secretary of State’s efforts to remove him.

Consequently, the respondent continued his presence in the UK, but without any grant of the Leave to Remain (“LTR”). However, he was able to reside in the community because he had been granted immigration bail under paragraph 1(5)(a) of Schedule 10 to the Immigration Act 2016 (“the IA 2016”).

In the meanwhile, the respondent’s physical and mental health began to deteriorate. He filed several applications challenging the refusal to grant the LTR. In 2021, the Upper Tribunal held that as the likelihood of removing the respondent to Belarus was remote, continuing this refusal would be a violation of his right under Art. 8 of the European Convention on Human Rights. The Court of Appeal upheld the decision of the Upper Tribunal, aggrieved by which the Home Department preferred the instant appeal to the Supreme Court.

Court’s Assessment: Perusing the matter, the Court noted that in cases concerning settled migrants, namely persons who have been granted a right of residence in the host country, withdrawal of right under Art. 8(1) of the Convention may constitute an interference with the right to respect for private life within the meaning of article 8; if there is an interference, it must be justified under article 8(2) as being “in accordance with the law”, as pursuing one or more of the legitimate aims set out in article 8(2), and as being “necessary in a democratic society”, which is to say justified by a pressing social need and proportionate to the legitimate aim pursued.

The Court noted that in the case of a person who is not a settled migrant, but an alien seeking admission to a host country, which includes a person who has been unlawfully resident in the host country for many years, the question is whether the state has a positive obligation to grant the necessary permission to reside in order to afford the requisite respect for their private life.

The Court pointed out that foreign criminals who are residing in the UK unlawfully, like the respondent in the instant case, who resist their deportation on the basis of Art. 8, are in substance asserting that their right to respect for their private life imposes a positive obligation on the United Kingdom to permit them to continue to reside here, and are in that respect in a similar position to the non-settled migrants. The Court thus noted that the instant case is about what support the respondent is entitled to be provided with, while he is in the United Kingdom without LTR.

Via-a-vis application of Gillberg principle, the Court noted that it is specific to the particular circumstances of the case and does not lay down an overarching principle 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.

Considering whether respondent’s right to respect for his private life under Art. 8(1) is engaged to the extent that interference with it is required to be justified under article 8(2) or that it may potentially give rise to a positive obligation of protection, the Court pointed out that respondent’s right under Art. 8(1) of the ECHR is engaged to the extent that he had been subjected to an extended period of limbo status without a grant of LTR, even though that situation has been brought about by his actions. However, the allocation of limbo status to the respondent was in accordance with the law under article 8(2), it was also a proportionate means of achieving a legitimate aim.

The Court further pointed out that the allocation of limbo status to the respondent was in accordance with the law. Furthermore, the Court noted that under NIAA 2002 respondent is an illegal immigrant who is also a foreign criminal for the purposes of this legislative regime. The Court pointed out that even if the respondent had not been a foreign criminal, the factors pointing in favour of his removal would have been overwhelming. “He is an illegal immigrant with no family life and minimal private life to which little weight is to be attached. The Secretary of State was plainly entitled to decide that he should be removed, and that decision involved no violation of article 8 (…) The public interest in AM’s (respondent) deportation is very strong”.

The Court further pointed out that the respondent has succeeded in completely undermining public interest by his deliberate and fraudulent actions. These actions have been effective in thwarting his deportation. By doing so, he has forced the Secretary of State to arrange for him to remain in the UK and thereby has imposed obligations on the State to provide for his needs out of public funds, at least to the extent of protecting him from destitution and from being subjected to inhumane conditions.

Referring to several European Court of Justice authorities, the Supreme Court pointed out that the State has a margin of appreciation in deciding how immigrants should be treated in relation to according respect for their private and family lives. The Court opined that, in the circumstances of the instant case, the Secretary of State was clearly entitled to decide that the respondent should not be granted LTR. Allocating him limbo status, along 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 Court held that the position arrived at in relation to the respondent, 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.

[R v. Secretary of State for the Home Department, [2024] 2 WLR 1075, decided on 24-04-2024]

*Judgment authored by Lord Justice Sales

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