R (on the application of AM (Belarus) v Secretary of State for the Home Department [2024] UKSC 13

AM, a Belarusian national and foreign criminal, deliberately thwarted deportation through lies and non-cooperation. He claimed his 'limbo status' without leave to remain violated Article 8 ECHR. The Supreme Court allowed the Secretary of State's appeal, holding that AM's own conduct in obstructing removal was highly material to the proportionality analysis and no violation of Article 8 arose.

Facts

The respondent AM, a citizen of Belarus, arrived in the United Kingdom in 1998 and claimed asylum. He was convicted of serious criminal offences including actual bodily harm and false imprisonment in 1999, possession of a false identity document in 2008, and possession of an offensive weapon in 2018. He qualified as a ‘foreign criminal’ under the Nationality, Immigration and Asylum Act 2002.

The Secretary of State made a deportation order against AM. However, AM deliberately and persistently thwarted his removal to Belarus by providing false information to Belarusian authorities about his identity, leading them to refuse to accept him as a Belarusian national. As a result, AM remained in the UK with ‘limbo status’ on immigration bail without leave to remain (LTR), receiving only limited welfare support and without permission to work or full NHS access.

AM challenged the Secretary of State’s refusal to grant him LTR, arguing this violated his right to respect for private life under Article 8 ECHR.

Issues

Primary Issue

Whether the Secretary of State’s refusal to grant AM leave to remain, thereby maintaining his limbo status, violated his rights under Article 8 ECHR to respect for his private life.

Secondary Issues

Whether the ‘Gillberg principle’ (that Article 8 cannot be relied upon to complain about foreseeable consequences of one’s own actions) applied to preclude AM from relying on Article 8 at all.

Whether the Upper Tribunal erred in its proportionality analysis by: (1) downgrading the public interest in maintaining effective immigration controls; (2) misapplying paragraph 276ADE of the Immigration Rules; and (3) failing to give proper weight to AM’s deliberate obstruction of his removal.

Judgment

The Supreme Court unanimously allowed the Secretary of State’s appeal. Lord Sales, delivering the judgment with which all other Justices agreed, held that the Upper Tribunal had erred in law in its approach to the Article 8 proportionality analysis.

The Gillberg Principle

The Court rejected the Secretary of State’s argument that the Gillberg exclusionary principle applied to completely preclude AM from relying on Article 8. Lord Sales explained:

“In my view, the Gillberg principle, as slightly extended in Denisov, does not apply in the case of AM so as to prevent him, as a threshold condition, from raising any complaint under article 8. He has not been convicted of any recent criminal offence nor of any equivalent unlawfulness… AM is complaining about how the state, as represented by the Secretary of State, has decided to treat him when exercising discretionary administrative powers in light of the conduct in which he has engaged.”

However, the Court accepted the alternative submission that AM’s conduct was highly material to the proportionality analysis:

“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.”

Errors in the Upper Tribunal’s Analysis

The Court identified three significant errors in the Upper Tribunal’s proportionality analysis:

First, the Upper Tribunal wrongly treated the public interest as merely ‘residual’ because removal was unlikely. Lord Sales stated:

“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’.”

Second, the Upper Tribunal misanalysed the incentive effects:

“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’s 20-year residence provision as an ‘important yardstick’ when AM could not satisfy the suitability requirements in any event.

Guidance on RA (Iraq)

The Court criticised the four-stage approach set out in RA (Iraq) v Secretary of State for the Home Department as unhelpful and capable of distracting from proper Article 8 analysis:

“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… Tribunals and courts should not try to follow that guidance in future.”

The Correct Article 8 Analysis

Applying the correct approach, the Court found that while AM’s Article 8 rights were engaged, the Secretary of State was clearly entitled to refuse LTR. Under sections 117A-117C of the NIAA 2002:

“AM is an illegal immigrant who is also a foreign criminal… The maintenance of effective immigration controls, which is in issue in AM’s case, is in the public interest… Little weight should be given to this private life because it has been established at a time when AM was in the UK unlawfully.”

The Court concluded:

“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.”

Implications

This judgment has significant implications for immigration law and Article 8 jurisprudence:

First, it clarifies that an individual’s deliberate conduct in obstructing their removal is highly material to the Article 8 proportionality analysis, though it does not completely preclude reliance on Article 8.

Second, it disapproves the four-stage guidance in RA (Iraq), directing tribunals to apply conventional Article 8 analysis instead.

Third, it confirms that the public interest in maintaining effective immigration controls is not diminished simply because removal becomes impractical due to the individual’s own obstruction.

Fourth, it emphasises the importance of the statutory framework in sections 117A-117C NIAA 2002 as the prism through which proportionality must be assessed in cases involving foreign criminals.

The case reinforces that those who deliberately frustrate immigration controls cannot expect to be rewarded with leave to remain, even after lengthy periods in limbo status, where such an outcome would undermine immigration policy and create perverse incentives.

Verdict: Appeal allowed. The Secretary of State’s refusal to grant AM leave to remain did not violate his rights under Article 8 ECHR. AM’s claim under Article 8 to be granted leave to remain was dismissed.

Source: R (on the application of AM (Belarus) v Secretary of State for the Home Department [2024] UKSC 13