Stripped of their leave to remain in the UK, they can nonetheless not be removed from the jurisdiction
The Court of Appeal in the UK has handed down guidance on what have been called “limbo” cases: ones where a migrant cannot be removed from the UK because, for example, conditions in their country of origin prevent it but where they are also precluded from working, receiving benefits, or renting property in the UK because they do not have valid leave.
In RA (Iraq) v The Secretary of State for the Home Department [2019] EWCA Civ 850 the appellant was an Iraqi national who entered the UK when he was 16. He was granted discretionary leave to remain until he was 18 but in 2007 was sentenced to three years in a young offenders’ institution for robbery. The the appellant argued that since he could not be returned to Iraq, termination of his leave would put him in a permanent state of limbo.
It was also argued on his behalf that the cumulative impact of these factors breached his rights under Article 8 of the European Convention on Human Rights (“Article 8 “) but this argument was ultimately rejected by the court.
There has never been a domestic case in which such a “limbo” argument has succeeded; these are mainly awarded in the European Court of Human Rights. The court therefore took the opportunity to set out a four-stage test to be applied when considering “limbo” arguments:
- Instances where someone still has leave but is likely to lose this status (termed “prospective limbo”) will be seen as a weaker argument than those cases where a person is in “actual limbo” that is, where persons have no leave to remain or against whom a deportation order has already been made. This is because with prospective limbo cases, the person will not have suffered any day-to-day impact on their family or private life.
- A person must not be capable of being removed or deported from the jurisdiction immediately or in the foreseeable future and there must be no reason for anticipating a change in this situation.
- A retrospective and prospective analysis of a person’s status, family circumstances, seriousness of the offence and the prospects of removal or deportation taking place is needed.
- Finally, a balancing exercise must be conducted between the public interest in maintaining an effective system of immigration control and a person’s Article 8 rights.
In delivering their judgment, the court referred to the earlier case of R (Hamzeh and others) v SSHD [2014] EWCA Civ 956, where Simler J had noted the following:
“There is no policy or practice whereby persons whose removal from the UK cannot be enforced, should, for this reason alone, be granted leave to remain. It is not difficult to see why this should be the case. A policy entitling a person to leave to remain merely because no current enforced removal is possible, 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. Moreover, in the same way as immigration law and policy may change, so too the practical situation in relation to enforcing removal may change or fluctuate over time so that any current difficulties cannot be regarded as perpetual.”
It has been suggested that the decision does not consider the practical realities of refusing leave and may merely pass the responsibility of dealing with the effect from one government authority to another.
