A Belarusian foreign criminal deliberately thwarted his deportation by lying to Belarusian authorities, creating prolonged ‘limbo’ status in the UK without leave to remain. The Supreme Court held that refusing leave to remain did not violate Article 8 ECHR, overturning lower courts and clarifying the proportionality framework for self-induced immigration limbo cases.
Background
The respondent, AM, a citizen of Belarus, arrived in the United Kingdom in 1998 and claimed asylum. He was convicted of actual bodily harm and false imprisonment in 1999 and sentenced to three years and six months’ imprisonment, with a recommendation for deportation. His asylum claims were repeatedly refused, with multiple tribunals making adverse credibility findings against him. When removed to Belarus in 2001, AM provided false information to the Belarusian authorities, leading them to refuse him entry on the basis they could not confirm his nationality. He was returned to the UK.
Over more than two decades, AM adopted a sustained strategy of dishonesty and non-cooperation, repeatedly lying to both UK and Belarusian officials, thwarting all attempts to effect his removal. He committed further criminal offences, including possession of a false identity document (2008) and possession of an offensive weapon (2018). He was released on immigration bail without leave to remain (LTR), placing him in what the court termed a ‘limbo’ status: present in the UK without permission to work, without full NHS access, unable to enter tenancy agreements or open bank accounts, and receiving only minimal subsistence-level support from the National Asylum Support Service (NASS).
AM challenged the Secretary of State’s refusal to grant him LTR, arguing that his Article 8 ECHR right to respect for private life required the grant of LTR with permission to work. The Upper Tribunal, applying the four-stage guidance from RA (Iraq) v Secretary of State for the Home Department [2019] EWCA Civ 850, found in AM’s favour, concluding that ‘very compelling circumstances’ existed such that the public interest was outweighed. The Court of Appeal dismissed the Secretary of State’s appeal. The Secretary of State appealed to the Supreme Court.
The Issue(s)
Principal Issues
The Supreme Court addressed three grounds of appeal:
- Whether the so-called ‘Gillberg principle’ — that Article 8 cannot be relied upon to complain of foreseeable consequences of one’s own actions — precluded AM from invoking Article 8 at all; and, if not, whether his deliberate obstruction was a highly material factor in the proportionality analysis.
- Whether the Upper Tribunal erred by treating the 20-year continuous residence requirement in paragraph 276ADE(1)(iii) of the Immigration Rules as an ‘important yardstick’ in the proportionality assessment, when AM did not meet the suitability requirements.
- Whether the Upper Tribunal erred in its assessment of the public interest by focusing on the benefits AM had derived from being in the UK rather than considering how granting LTR to someone who had deliberately obstructed removal would undermine immigration controls.
The Court’s Reasoning
Rejection of the RA (Iraq) Guidance
Lord Sales, delivering the sole substantive judgment with which all other Justices agreed, critically assessed the four-stage framework set out by Haddon-Cave LJ in RA (Iraq). He found this guidance to be an unhelpful gloss on the standard Article 8 analysis, unduly rigid, and capable of distorting the proper proportionality assessment:
“The guidance in RA (Iraq) represents a gloss on the usual approach to be adopted for analysis under article 8. In my view, although following the guidance will often result in a tribunal or court arriving at the right conclusion, this layering of guidance on top of the usual approach to be adopted under article 8 is unhelpful. It is unduly rigid and is capable of distracting from the proper analysis which is required. Indeed, as appears from the discussion below, following it seems to have contributed to the Upper Tribunal falling into error in this case. Tribunals and courts should not try to follow that guidance in future.”
The Gillberg Principle
The Secretary of State argued that the Gillberg principle — that Article 8 cannot be invoked to complain of foreseeable consequences of one’s own deliberate actions — should preclude AM from raising any Article 8 complaint. Lord Sales rejected this as an overarching exclusionary principle in the immigration context:
“In my view, the judgment in Gillberg 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.”
He noted that AM was not complaining about the consequences of a criminal conviction or breach of an injunction, but about how the state exercised discretionary administrative powers. The Gillberg principle did not operate as a threshold bar. However, Lord Sales accepted the alternative submission that AM’s deliberate obstruction was a highly material factor in the proportionality analysis:
“AM’s own conduct in thwarting the attempts by the Secretary of State to deport him to Belarus is a highly material factor for the purposes of the relevant proportionality analysis under article 8 … To the extent that the individual has brought particular detrimental consequences on himself or herself, or contributed to the situation in which they arise, the state’s responsibility is liable to be diminished and the fair balance between the public interest and the individual interest is likely to be affected as a result.”
The Public Interest and Immigration Controls
Lord Sales found that the Upper Tribunal committed three errors in its assessment of the public interest.
First, following the RA (Iraq) framework, the Upper Tribunal treated the public interest as merely ‘residual’ because removal was unlikely. Lord Sales rejected this:
“The public interest in promoting the effectiveness of immigration controls remained the same as it always was … If LTR were granted to an illegal immigrant because no current enforced removal is possible, that ‘would undermine UK immigration law and policy, and would create perverse incentives to obstruct removal, rewarding those who fail to comply with their obligations as compared to those who ensure such compliance’.”
Second, the Upper Tribunal misanalysed the incentive and public confidence aspects of maintaining immigration controls. Lord Sales emphasised:
“it is obvious that if an illegal immigrant in the position of AM is granted LTR as a result of the success of his efforts to obstruct his removal, others who are supposed to be removed will be incentivised to do their best to obstruct their removal as well, thereby directly undermining the due operation and enforcement of the United Kingdom’s immigration controls.”
Third, the Upper Tribunal erred in treating paragraph 276ADE(1)(iii)’s 20-year residence period as an ‘important yardstick’ for the proportionality analysis. Lord Sales clarified that this provision is a policy statement about when LTR will be granted if other conditions are satisfied, not a measure of the weight of the public interest in immigration enforcement:
“Paragraph 276ADE is a statement of the Secretary of State’s policy regarding the grant of LTR where a number of conditions are fulfilled … Paragraph 276ADE is not a statement regarding the weight to be attached to the public interest in the due enforcement of immigration controls for the purposes of the general application of article 8.”
AM manifestly failed the suitability requirements: he was subject to a deportation order, had serious criminal convictions, had failed to provide information, and had made false representations.
The Court’s Own Proportionality Analysis
Lord Sales proceeded to conduct the Article 8 analysis afresh. He accepted that AM’s right to respect for private life under Article 8(1) was engaged, even though his limbo status was self-induced. However, applying sections 117A–117C of the NIAA 2002, the court found that AM had minimal private life in the UK, established while unlawfully present and in precarious circumstances, to which little weight was to be given. The public interest in his deportation was very strong under section 117C, and there were no ‘very compelling circumstances’ to justify departure from the statutory requirement of deportation. The Secretary of State’s decision to maintain limbo status was a proportionate measure in pursuit of legitimate aims:
“Allocating limbo status to AM, 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.”
Practical Significance
This judgment is of considerable importance in several respects. First, it disapproves the four-stage framework in RA (Iraq), directing that tribunals and courts should no longer follow it, and instead apply a conventional Article 8 proportionality analysis. Second, it clarifies that the so-called Gillberg principle does not operate as a threshold exclusion in immigration cases, but that an individual’s deliberate obstruction of removal is a highly material factor in the proportionality balance. Third, it affirms that the public interest in effective immigration controls does not diminish merely because removal becomes practically impossible — particularly where that impossibility is self-induced. Fourth, it clarifies the proper role of paragraph 276ADE of the Immigration Rules, confirming it is not an independent ‘yardstick’ for measuring the weight of the public interest in Article 8 assessments, but a policy conditional upon satisfaction of suitability requirements. The decision reinforces the strong public interest in preventing perverse incentives that would reward deliberate obstruction of deportation.
Verdict: The Supreme Court unanimously allowed the Secretary of State’s appeal and dismissed AM’s claim under Article 8 ECHR to be granted leave to remain.
Source: R (on the application of AM (Belarus) v Secretary of State for the Home Department [2024] UKSC 13
