Limbo immigration status – when a migrant cannot be deported but has no Indefinite Leave to Remain

The court of appeal has described the Immigration position of one migrant appealing to the court as in “limbo”. Limbo is defined in the English dictionary as a “region between heaven and hell” or alternatively described as an “indeterminate place or state”. The court of appeal did not say what aspects of the limbo Immigration status amounted to heaven and hell but a reading of the law report by top London immigration solicitors makes it easy to guess.

The court case of RA (Iraq) v The Secretary of State for the Home Department [2019] EWCA Civ 850 (17 May 2019) is important to the best London immigration solicitors as the court has given guidance on “limbo” Immigration cases.

Limbo Immigration cases are situations where a migrant cannot be deported from the UK even though they do not have valid leave to remain in the UK. The impact of being in a legal Immigration limbo means that although a migrant cannot be removed from the UK they cannot work, receive benefits, rent a property or do any of the other normal day-to-day things that everyone takes for granted unless they have been fallen foul of the hostile environment Immigration policy. Unable to return to the country of origin but unable to secure Indefinite Leave to Remain or any other valid leave, migrants and the courts rightly view the migrant as being in Immigration “limbo”.

OTS Solicitors specialise in all aspects of personal and business immigration law and have particular expertise in:

• Indefinite Leave to Remain applications;

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• Asylum and humanitarian protection claims;

• Applications for Administrative Review and judicial review;

• Certification challenges including Asylum and Human Rights claims where no appeal right has been given;

• Challenges to unlawful detention and to the Detained Fast Track procedures;

• Detention and Immigration bail applications;

• Deportation cases;

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The latest case of limbo Immigration status is reported as RA (Iraq) v The Secretary of State for the Home Department [2019] EWCA Civ 850 (17 May 2019).

The best London immigration solicitors advise that the background to the case is important as it shows how the appellant, RA, entered into his “prospective limbo” Immigration status.

The appellant, RA, is a 31-year-old Iraqi national. RA has been in intermittent litigation over his Immigration status since 2009 with four tribunal cases and two earlier court of appeal hearings. In May 2019 the court of appeal determined the third appeal, this appeal relating to RA’s “limbo” status.

RA arrived in the UK when he was age sixteen. He received discretionary leave until he was eighteen after his Asylum claim was refused. In 2007, he was convicted of the robbery of an 81-year-old woman, the vicious assault resulting in a sentence of three years in a young offender institution.

In 2008, the Home Office made the decision to deport RA from the UK on the ground that his continued presence in the UK was not conducive to the public good and refused his application for further leave to remain. The tribunal refused appeals against the deportation decision but as a result of delays in the decision making process RA’s case was reconsidered on Article 8 Human Rights grounds and to consider the issues relating to general risk on return to Iraq.

Further appeals were refused and when the tribunal rejected the limbo argument, the third appeal was submitted to the court of appeal and RA applied to revoke the deportation order. This application was made because of the court of appeal's judgment in AA (Iraq) v SSHD [2016] EWCA Civ 944 in which the Court amended the previous country guidance on Iraq contained in AA (Iraq) v SSHD [2015] UKUT 544 (IAC).

By the time of the third appeal to the court of appeal, RA was a family man, the father of two UK born children and although not living with the children and their mother, he was having regular contact with the children. The best London immigration solicitors report that the Home Office did not dispute the genuineness and closeness of his relationship with his children. Importantly, RA was working as a hotel manager and paying child support for his children. RA was able to work as he had leave to remain pending determination of his appeal and so was classed as being in “prospective limbo”.

The limbo ground of appeal related to the effect upon RA’s Article 8 Human Rights and the future state of limbo in which the Home Office decision would leave him as the Home Office accepted that RA was currently unreturnable to Iraq in line with the country guidance in AA (Iraq) v SSHD.

The leading judge in the RA appeal case said that there are four stages to the analysis of the limbo Immigration status argument, namely:

The court said that the term “limbo” is a convenient shorthand for describing the position of a migrant whom the Home Office want to deport or remove from the UK, but there is a limited prospect of ever effecting the deportation or removal.

The judge said “limbo” is a term that can be used to cover migrants who may be either:

• Someone in respect of whom a decision to deport has been taken, but no deportation order has been made. In this scenario (in the case of RA) the migrant may have leave to remain pending appeal and therefore the issue is one of “prospective limbo” with the migrant having suffered little impact on their private or family life because they have been free to work and to enjoy family life; or

• Someone in respect of whom a deportation order has been made but who has not yet been deported. If a deportation order has been made, the migrant will normally have no leave to remain, and therefore be unable to work, claim benefits or receive more than basic GP care under the NHS. This was described by the judge as actual limbo.

In order to raise a “limbo” argument, namely, whether the public interest justifies making or upholding a decision to deport, the following must be demonstrated:

• It must be apparent that the migrant is not capable of being actually deported immediately, or in the foreseeable future; and

• It must be apparent that there are no further or remaining steps that can currently be taken in the foreseeable future to facilitate deportation; and

• There must be no reason for anticipating change in the deportation situation and so the prospects of removal are remote.

If those criteria are not satisfied, a limbo challenge to a lawful decision to deport on Human Rights and right to family or private life grounds is likely to face formidable obstacles.

If the criteria are met, the judge said the court or tribunal should then look at the facts of the individual migrant’s case including a retrospective and prospective analysis involving:

• An assessment of the time already spent by the migrant in the UK;

• The migrant’s status, Immigration history and family circumstances;

• The nature and seriousness of any offences of which the migrant has been convicted;

• The time since the decision or order to deport was made;

• An assessment of the prospects of deportation being achieved;

• Whether the impossibility of achieving deportation is due in part to the conduct of the individual migrant.

The court then has to carry out a balancing exercise between:

• The public interest in maintaining an effective system of Immigration control; and

• The individual migrant's Article 8 and other Convention rights.

The balancing assessment has to look at:

• Whether the migrant remaining or going into a state of limbo will have an impact on the migrant’s Article 8 or other Convention rights and, if so, the extent of that impact; and

• How far that impact on the migrant is proportionate when balanced with the public interest in the decision to make a deportation order, or to uphold one.

“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.”

“I accept that a failure to grant status may amount to an interference with private life, but in my view the circumstances in this case are not such as to show that despite the factors that militate in his favour this is a case where the public interest is outweighed by the particular circumstances that favour the appellant. Accordingly the appeal is dismissed.”

To the best London immigration solicitors the case of RA demonstrates just how difficult and complex Immigration decisions can be. It can be easy to say that there should be enforcement of deportation decisions and orders. However, should criminal offending be put into context with the individual’s age, his background and his subsequent maturity and relationship with his children who have a right to a meaningful parental relationship? These complex issues perhaps go some way to explaining why the case of RA has been back and forth between tribunals and the court of appeal since 2009.

Central London based OTS Solicitors specialise in Immigration law and helping migrants challenge Home Office decisions. The experienced Immigration solicitors have substantial experience in making successful Human Rights claims and in challenging Home Office decisions to refuse visa applications, Indefinite Leave to Remain applications or Asylum claims.

OTS Solicitors are recommended for Immigration law in the law directory, The Legal 500. OTS Solicitors have Law Society accredited solicitors status as trusted specialists in Immigration law.