Five Supreme Court justices today unanimously allowed the home secretary’s appeal over a claim for leave to remain by an asylum seeker currently in 'limbo status'.

The government appealed to the Supreme Court after the Court of Appeal dismissed its appeal to an Upper Tribunal ruling that refusal to grant the individual, identified as AM, leave to remain violated his rights under article 8 (respect for private and family life) of the European Convention of Human Rights.

AM, a Belarussian national, arrived in the UK in 1998 and claimed asylum, which was refused in 2000. He was removed to Belarus but refused entry after lying about his identity and returned to the UK. Since then he has been convicted of ‘various offences’ and despite sentences of imprisonment ‘has successfully managed to thwart the secretary of state’s efforts to remove him’.

AM argues that the government ‘is obliged to issue him with leave to remain for so long as his removal to Belarus is not possible, with permission to seek employment’.

In AM v Secretary of State for the Home Department, Lord Sales, with whom Lord Lloyd-Jones, Lord Hamblen, Lord Stephens and Lady Simler agreed, found that the Upper Tribunal ‘failed to give any significant, let alone proper weight, to the deliberate actions of AM in contributing to the situation in which he had limbo status’.

The judgment continued: ‘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.'

When an individual brings detrimental consequences on themself, or contribute 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'.

‘That will be so all the more where the individual, by their action, has deliberately and deceitfully sought to undermine or circumvent some clearly identified and strong public interest, as AM has done in this case.’

Lord Sales added that granting AM leave to remain would create an incentive for others 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'.

Allowing the secretary of state's appeal and dismissing AM’s claim under article 8 to be granted leave to remain, the judge said that ‘even if AM had not been a foreign criminal, the factors pointing in favour of his removal would have been overwhelming’. He said the government was ‘plainly entitled’ to decide that AM should be removed.

‘Allocating limbo status to AM, with the benefits associated with that’ rather than leave to remain 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,’ he said.

‘The position arrived at in relation to AM 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.’


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