Wednesday 4 – Thursday 5 May 2022

Before Lord Justice Moylan
Lady Justice Nicola Davies
Lord Justice Dingemans

The SSHD appeals the Order of Lane J. of 27 January 2021 by which he allowed AM’s judicial review claim on Ground 1 and made a declaration that continuing to refuse to grant the Appellant leave to remain in the UK is a disproportionate interference with his Article 8 rights.

AM claims to be a national of Belarus and to be at risk due to his political opinion. AM has made a number of unsuccessful Asylum claims. He was not found to be credible. The SSHD attempted to return AM to Belarus but he was refused entry. The Belarusian authorities refused to issue travel documents. AM has admitted giving false information in previous asylum claims and to the Belarusian authorities. AM has a number of convictions including for violence. He applied for leave to remain as a stateless person on 09 February 2017, which application was refused on 27 November 2019.

By the date of the UT hearing, the Appellant had been subject to temporary admission/bail/immigration detention for 7360 days excluding periods of imprisonment. This amounts to a period of over 20 years, which was said by his representatives to be the longest use of such powers by the Respondent by a substantial margin.

As he has no right to work, the Appellant has been destitute, including periods of street homelessness. There is some medical evidence that the Appellant’s physical and mental health would be adversely affected if he were not given any legal status but that he could reform if granted leave.

The UT found that it was not impossible to remove the Appellant in a Khadir sense. The UT applied the four stage test in RA (Iraq) and found (1) that the Appellant was in actual limbo, (2) the prospects of removal are remote, (3) the Appellant has spent a very long period in Limbo but has committed serious criminal offences, and (4) the public interest is not extinguished but a grant of leave is unlikely to encourage others to follow his example. Although the Appellant could not meet the suitability requirements of paragraph 276ADE, he is entitled to point to his 20 years continuous life in the UK as representing a material Article 8 private life factor. The possibility of self improvement if granted leave and the Appellant’s health were taken into account. AM has had at best precarious status and, though he can speak English, the Appellant is not financially independent. The UT concluded (at paragraph 148) that the public interest is weakened to the point where it is capable of being outweighed by the Appellant’s Article 8 case.

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