Supreme Court finds no basis to grant limited visa under the 20-year residence because of criminal convictions and confusion over the applicant’s nationality

In AM (Belarus) v Secretary of State for the Home Department [2024] UKSC 13, in a judgment delivered by Lord Sales, the Supreme Court has held that a man living in the United Kingdom for twenty six years with no immigration status was not entitled to status on human rights or other grounds because it was his own fault. He had repeatedly been found by the Home Office and judges to be a national of Belarus but when removed there in 2001 had claimed to the Belarussian authorities not to be a citizen. They refused to accept him and he was therefore returned to the UK. Since then he had continued to obstruct efforts to redocument him as Belarussian and remove him there.

Normally a person with twenty years of illegal residence can apply for legal status under the immigration rules. This was not open to AM, though, because he had committed several criminal offences in the UK and was therefore excluded from succeeding by the suitability criteria that apply to that route since in order to get a visa under the 20-year residency route, the applicant must have a clean criminal check history. He was therefore left relying on human rights grounds.

In the meantime, AM could not legally work, rent accommodation, access anything other than emergency NHS care, open a bank account or claim benefits other than destitution-level asylum support. He had developed very serious mental health and addiction issues and committed further offences. One was a false identity offence, perhaps rather unsurprisingly in the circumstances. This was described with considerable, arguably insulting, understatement by the Supreme Court as not “an especially enviable life”.

The Upper Tribunal held that AM was entitled to leave to remain on human grounds, his being a genuinely exceptional case. His example was hardly likely to inspire others to emulate him, given how miserable his existence in the UK had become. The Home Office appealed but the Court of Appeal agreed with the Upper Tribunal.

The proper approach is for a court firstly:

to examine what are the effects upon the individual associated with the type of limbo in which they are placed and then to assess if they are serious enough to qualify as an interference with the right to respect for private life (or family life, as the case may be) or as a matter potentially engaging the positive obligation of the state under article 8

If so, the court should then assess proportionality following the normal four-stage approach:

(i) is the aim sufficiently important to justify interference with a fundamental right?

(ii) is there a rational connection between the means chosen and the aim in view?

(iii) was there a less intrusive measure which could have been used without compromising the achievement of that aim?

(iv) has a fair balance been struck between the rights of the individual and the general interest of the community, including the rights of others?

As a result, the outcome comes as no surprise: maintaining AM in limbo status is found to be a proportionate response:

Allocating limbo status to AM, with the benefits associated with that, rather than granting him leave to remain 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. 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.

Illegal Migration Act aficionados will be taking note of the approach here to grants of status on human rights grounds. This is because the Illegal Migration Act forbids the government from granting immigration status to any person who has arrived illegally since 7 March 2023. So far, that is some 73,000 individuals. The only exception is where omitting to grant status would breach their human rights.

On the approach of the Supreme Court in AM, a person who arrived after 7 March 2023 who actively resists removal to Rwanda or any other third country could presumably never be granted status because they will never have a human right to such status. Due to Rwanda’s limited capacity to accept people, this is only ever likely to affect a very small subset of the 73,000 people current prohibited from status but the implications are still concerning.