R3 v Secretary of State for the Home Department
[2023] EWCA Civ 169
R (on the application of AM (Belarus)) v Secretary of State for the Home Department
24 April 2024
[2024] UKSC 13
Supreme Court
A man was supposed to be deported but stopped it himself. He sued saying his rights were violated because he couldn't work or get full benefits. The court said he created his own problem, and it was fair to keep him in a limited-benefits situation, even if it was tough on him, to discourage others from doing the same.
Key Facts
- •AM, a Belarusian citizen, has been convicted of various offences in the UK and is a foreign criminal under the Nationality, Immigration and Asylum Act 2002.
- •The Secretary of State seeks to deport AM to Belarus, but AM has consistently obstructed this.
- •AM has been in 'limbo' status for over 20 years, residing in the UK without leave to remain but on immigration bail.
- •AM's limbo status entails limited access to work, NHS services, and social welfare benefits.
- •AM argues that his article 8 rights (right to respect for private and family life) require the Secretary of State to grant him leave to remain.
- •AM's history includes multiple asylum applications, convictions, and attempts to harm himself.
Legal Principles
Article 8 of the European Convention on Human Rights (right to respect for private and family life), as given effect in UK law by the Human Rights Act 1998.
European Convention on Human Rights, Human Rights Act 1998
Proportionality test for interference with fundamental rights: (i) importance of the aim; (ii) rational connection between means and aim; (iii) less intrusive measures; (iv) fair balance between individual and community interests.
Huang v Secretary of State for the Home Department [2007] UKHL 11; R (Aguilar Quila) v Secretary of State for the Home Department [2011] UKSC 45
Sections 117A-117C of the Nationality, Immigration and Asylum Act 2002, concerning the public interest in deportation of foreign criminals.
Nationality, Immigration and Asylum Act 2002
Immigration Rules (paragraphs 276ADE, 276BE, Appendix FM, section S-LTR), setting out criteria for granting leave to remain.
Immigration Rules
The Gillberg principle: Article 8 cannot be relied upon to complain about foreseeable consequences of one's own actions.
Gillberg v Sweden, GC, judgment of 3 April 2012
Outcomes
The Supreme Court allowed the Secretary of State's appeal.
The Upper Tribunal erred in its proportionality assessment by insufficiently weighing AM's deliberate actions in obstructing his deportation, misinterpreting the public interest in maintaining effective immigration controls, and misapplying the Immigration Rules. The Court found that maintaining AM in limbo status was a proportionate measure, balancing his rights with the public interest in immigration control and resource allocation.
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