Court of Appeal gives guidance in ‘limbo’ cases

Chris McKendry, a partner in our immigration department, represented the Appellant in the important Court of Appeal case of RA(Iraq) [2019] EWCA Civ 850.He summarises the key findings of the Court below;The Court of Appeal gave guidance on the correct approach to considering whether the situation of an individual who cannot be removed from the UK (and is therefore ‘in limbo’) would give rise to a disproportionate interference with their protected ECHR article 8 rights. We represented RA, the appellant in this case. The SSHD made a decision to deport RA in 2008, whilst he held valid leave to remain in the UK. RA appealed, and by the time the Court of Appeal came to hear his appeal he had been in the appeals process for over 10 years. Whilst the appeals process was ongoing, RA held leave to remain, and as a consequence was able to work in the UK. By the time the Court of Appeal considered his appeal RA was working, and providing for his family.During the appeals process the Upper Tribunal had, in 2013, concluded that RA’s Article 8 rights would not be breached by his removal from the UK. It was subsequently accepted that he was ‘unreturnable’ to Iraq. RA’s case before the Court of Appeal was, put simply, that refusal to grant him leave to remain (and therefore place him in ‘limbo’) would amount to a disproportionate interference with his article 8 rights, as he would lose the right to work, and provide for his family. His presence in the UK would be criminalised and he would encounter difficulties renting accommodation, obtaining a driving licence, accessing secondary healthcare and so on. The Court of Appeal did not agree that the effect of dismissing RA’s appeal would place him in a ‘limbo’ situation to the extent that it would be a disproportionate interference with his Article 8 rights. The court went on to set out guidance on what it considered to be the correct approach in these cases, in 4 stages:

       
1. There is a distinction between prospective 'limbo' and actual 'limbo’. Prospective limbo was characterised as a situation where an individual still held leave to remain in the UK (because of section 3C or otherwise). This was distinguished from ‘actual’ limbo, in which an individual would have no leave to remain in the UK. It was suggested that those in ‘prospective limbo’ would have a weaker argument than those in ‘actual’ limbo;
       
2. The individual must not be capable of removal from the UK now or in the foreseeable future, and there should be no reason for anticipating that such a situation will change in the foreseeable future;
       
3. A comprehensive fact specific analysis must be undertaken in respect of the individual’s circumstances, including their immigration history, family circumstances, offending history, time since conviction and any issues regarding their co-operation with the removal process;
       
4. A balancing exercise must then be undertaken between the public interest in maintaining an effective system of immigration control (including the removal of foreign criminals) and the individual’s protected rights.

The court acknowledged there had never been a domestic case in which a “limbo” argument had succeeded. Going by the guidance given by the court, this situation looks set to continue for the foreseeable future.Counsel instructed in this appeal was David Chirico of 1 Pump Court.Chris McKendry can be contacted at c.mckendry@wilsonllp.co.uk