by Natasha Carver, Research Associate, Cardiff School of Law and Politics

It is held so frequently that undocumented migrants live ‘in limbo’ that the Migration and Home Affairs Committee of the European Commission contains a definition of the term in its glossary. As with many everyday phrases, the legal definition is far more restrictive and limited than that analysed, deconstructed and sub-divided by academics. In law, merely waiting for a decision, whether that takes twelve months or twelve years, is not to be understood as being ‘in limbo’. Instead the term is reserved for those against whom a deportation order has been made, but have not yet been deported.

In the recent case of RA (Iraq) [2019] EWCA Civ 850, Lord Justice Haddon-Cave observed that the “precise considerations relevant to a ‘limbo’ argument” had not yet received attention in this jurisdiction. Proceeding to rectify this, Haddon-Cave LJ drew a distinction between “prospective limbo”, when a decision to deport has been made but no deportation order issued, and “actual limbo”, when a deportation order has been issued but not carried out. He based this distinction on the deportee’s ability to enjoy Article 8 rights: those in “prospective limbo” can work, maintain family relationships and their private life; whilst those in “actual limbo” will be denied access to work or benefits, and therefore be hindered in their ability to maintain family life. It was accepted that the appellant in the case, RA, was an Iraqi national born in Kuwait, who had applied for asylum in the UK at the age of 16 in November 2003. Buoyed by the apparent success of the first few months of the Iraq War, and PM Tony Blair’s promise to reduce the number of asylum seekers, Iraqi asylum claims (as it was for RA) at that time were typically refused and (limited) discretionary leave granted. In 2007 RA was given a three-year sentence for the robbery of an elderly lady; his outstanding application for further leave was subsequently refused and he was issued with a notice of intention to deport. Delay in court procedures meant that RA established a family life in the UK and, given the gradual acceptance that the Iraq War was less successful than initially thought, case law found that there was a general risk on return to Iraq. RA remained in the UK on the basis of having an outstanding appeal (or several of them, under s.3C of the Immigration Act 1971) for the next twelve years.

RA argued that the continued temporality of his leave had left him in a state of permanent temporariness, which amounted to a criminalisation of his presence in the UK and limited his ability to fully participate in society and enjoy family life. As he was undocumented his situation looked set to continue indefinitely. The Court, however, found that his situation amounted to prospective limbo and as such he was deemed able to enjoy Article 8 rights and therefore his appeal fell to be dismissed.

The argument presented in the judgement is revealing. If having leave under s.3C of the Immigration Act 1971 leaves one in prospective rather than actual limbo because of the ability to enjoy Article 8 rights, how then would the court define the position of the majority of asylum-seekers, who have temporary admission but are not permitted to work, cannot claim mainstream benefits, and face limits on forming and maintaining familial relationships? Indeed, Haddon-Cave LJ went on to acknowledge that in withholding benefits and opportunities from “those who are here illegally, [p]arliament must be taken to have intended that the lack of such benefits and opportunities will form a disincentive to coming or remaining here illegally.” In other words, the curtailing of the right to private and family life for asylum seekers is a deliberate political strategy, and indeed this is something which was openly acknowledged by Theresa May when she was Home Secretary and launched the ‘hostile environment’ campaign. Although it does not seem likely that this is what was intended, it follows from the definition in RA that asylum seekers must be considered to be in actual limbo.

Subjecting people to permanent temporariness – whether one defines it as actual or prospective limbo – is a form of “inclusive exclusion” (Agamben, 1998:12): asylum-seekers or deportees in this position become hominess sacri, “included as the objects of sovereign power but excluded from being its subjects” (Gregory, 2004:62–3). This, as Arendt (1951) has argued, is not an unfortunate by‐product of the nation-state system, but the very means by which the national order of things is upheld and reproduced: such ex/inclusion maintains outsiders in temporal and spatial uncertainty and in so doing gives meaning to the category of full inclusion. Such “torsions of time and space” are the means through which colonialism “is made over, reinscribed, and rehabilitated in our present” (Gregory, 2004:251).

The normative principle that each and every body belongs to a designated nation-state is embedded in the 1951 Refugee Convention. The immigration regimes of powerful nation-states determine which bodies have the right to leave their designated place and for how long. Those who take such matters into their own hands, and thus become geographically ‘out-of-place’ (Said 1999), are consequently put in their place (humbled, subjugated) through being denied access to ‘real’ or ‘living’ time. Although judges and politicians may insist that a state of legal limbo is restricted to those who are subject to a deportation order yet cannot be removed (named by Nick Nason as the “irremovables”), migrants on all types of immigration visas, including EU citizens in the UK following the Brexit vote, can and do feel that their lives have been ‘placed on hold’ and are subject to the whims of a capricious regime.

Paradoxically, the court’s decision to dismiss this appeal will have meant that RA’s appeal rights are exhausted and thus his s.3C leave ended, and with it his right to work and ability to financially support his two British children. He should now therefore fall within the category of actual limbo.

For further detailed discussion of the coloniality of power in the Refugee Convention, see Carver (2019) ‘The Silent Backdrop: Colonial Anxiety at the Border’ in the Journal of Historical Sociology. With thanks to Colin Yeo and Marie-Christine Allaire Rousse.