The Court of Appeal has today handed down judgment in BM (Iran) v. Secretary of State for the Home Department  EWCA Civ 491. The case concerned the scope of Article 8 in cases where a person cannot be returned to their country of origin because of a policy of non-removal. The Appellant was a national of Iran with no right to remain in the UK. However, at the time his application for leave was dismissed, there was a policy preventing enforced escorted returns to Iran. Although he accepted that he had no right to remain under Article 8 as matters stood, he claimed that the Tribunal had erred in not considering whether the inability to enforce a removal meant that Article 8 would be breached because he was left in limbo in the UK. The case would have involved recognising a positive obligation of prospective entitlement to protection under Article 8.
The Court of Appeal (Richards and Sharp LJJ) dismissed the appeal. It held that conventional principles required the Article 8 argument to be determined on the basis of the facts as found at the time of the appeal hearing. At that stage, it was clear that the Appellant had no right to remain. He could not improve his position by relying prospectively on the inability of the UK to remove him. The only obstacle to removal was the inability to enforce an escorted return. The Appellant could return voluntarily. In those circumstances, he could not rely on Article 8 to improve his position.
David Blundell represented the Secretary of State.