In a landmark decision, the UK Supreme Court has ruled that individuals who obstruct their own removal from the UK, are not entitled to legal status on human rights grounds. This ruling came in the case of AM (Belarus) v Secretary of State for the Home Department [2024] UKSC 13, delivered by Lord Sales.
AM, a Belarusian national, has lived in the United Kingdom for 26 years without legal immigration status. Over this period, he has consistently impeded attempts by the Home Office to remove him to Belarus. In 2001, AM was deported to Belarus but claimed to the Belarusian authorities that he was not a citizen, resulting in his return to the UK. Since then, he has obstructed efforts to redocument and remove him to Belarus.
Under UK immigration rules, individuals who have resided in the country illegally for 20 years can apply for legal status. However, AM’s criminal record excluded him from this route, leaving him to rely on human rights grounds for his claim. During his 26 years in the UK, AM was unable to legally work, rent accommodation or access anything other than destitution level asylum support.
Supreme Court’s Ruling
The Supreme Court rejected AM’s claim, emphasising that his own actions in preventing his removal were a crucial factor. The court outlined a two-step approach for considering such cases:
1.Examine the Effects: Determine if the individual’s situation qualifies as an interference with their right to respect for private or family life under Article 8 of the European Convention on Human Rights.
2.Assess Proportionality: Apply a four-stage proportionality test:
- Is the aim sufficiently important to justify interference with a fundamental right?
- Is there a rational connection between the means chosen and the aim?
- Was there a less intrusive measure that could have been used?
- Has a fair balance been struck between the individual’s rights and the community’s interests?
In AM’s case, the court acknowledged that while his situation did engage Article 8, his deliberate actions to avoid removal were highly material in the proportionality analysis. The court emphasised that individuals who create their own precarious situation by deceitfully undermining public interest, diminish the state’s responsibility toward them.
Impact of the Ruling
The ruling sets a precedent that individuals who obstruct their removal cannot claim legal status based on a human right. The Supreme Court’s approach indicates that those who actively resist removal will likely not be granted status, reinforcing strict immigration controls, underscoring the balance between individual rights and public interest in immigration cases.
Contact us today for more information at 0208 995 3556 or info@descartessolicitors.co.uk.
By Jenny Comani
06.08.2024