No ‘near miss’ in immigration

March 21, 2012

Judgment was recently handed down by the Court of Appeal in the case of Miah v Secretary of State for the Home Department [2012] EWCA Civ 261, which rejects the ‘near miss’ argument raised in a number of recent immigration cases. 

Essentially, the argument is that where an appellant misses satisfying the requirements of the Immigration Rules by a small margin, and contends that his removal from the UK will breach his rights under Article 8, the weight to be given to the maintenance of immigration controls should be reduced for the purpose of the assessment as to whether his removal from this country should be permitted under Article 8(2).

The Case

In July 2005 Mr Miah, a Bangladeshi national, was granted entry clearance as a work permit holder until July 2010, although he did not arrive in Britain until September 2005.  In July 2010 he applied for further leave to remain as a Tier 2 (General) migrant, three days before his work permit expired.  His leave to remain was valid while his application was pending, under section 3C of the Immigration Act 1971. 

However, Mr Miah’s application for further leave to remain was refused by the Home Secretary, on the basis that he was two months short of continuous residence for the 5 year period as required by the Rules.   His applications under Article 8 of the ECHR and the applications of his dependents were also refused.  Mr Miah then lost both his appeals to the First Tier Tribunal and the Upper Tribunal, with the Upper Tribunal finding that he did not meet the requirements of paragraphs 128 and 134 of the Immigration Rules since he had not held a work permit for the requisite 5 years, and that there was no error of law in the consideration of the Article 8 claim by the First Tier Tribunal.

Permission to take the matter to the Court of Appeal was then granted in order to air the ‘near miss’ argument.  

Zane Malik on behalf of Mr Miah wrote in his skeleton argument that ‘there is an inverse relationship between the degree to which there is compliance with the Rules and the immigration policy imperative which demands that unsuccessful applicants be removed: the more the applicant effects substantial compliance with the Rules, the less it can be said that immigration policy requires his removal.’   Burnton LJ called this a sliding scale argument, ‘with the weight to be given to the Immigration Rules increasing with the degree of non-compliance.’  However, in his oral submissions, Mr Malik suggested that rather the weight to be given to non-compliance with the Rules diminishes where the applicant is ‘nearly’ or ‘almost’ compliant.

Mr Swift QC for the Home Secretary argued that it was in the public interest for the Immigration Rules to be complied with and that creating exceptions would only result in greater uncertainty for future applicants in the same predicament.

It was made clear by Burnton LJ that this was not the de minimis rule, which is when a rule is considered to have been complied with because the departure from it is so small as to be insignificant.  Instead, ‘the starting point for the near miss argument is that the rule has not been complied with.’  Therefore, Mr Miah’s failure to satisfy the 5 years’ continuous residence requirement by two months could not be regarded as de minimis.

Burnton LJ proceeded to state ‘a rule is a rule…once an apparently bright-line rule is regarded as subject to a Near-Miss penumbra, and a decision is made in favour of a near-miss applicant on that basis, another applicant will appear claiming to be a near miss to that near miss. There would be a steep slope away from predictable rules, the efficacy and utility of which would be undermined.’  He dismissed the appeal in relation to the near miss argument (although other grounds of the appeal were stayed for hearing at a later date), finding that there is no near miss principle applicable to the Immigration Rules and that the requirements of immigration control are not weakened by the applicant’s degree of non-compliance with the Rules.

Our View

We agree with this judgment, since creating exceptions for certain individuals when they have not met the requirements of the Rules and have no exceptional circumstances as to why they failed to meet them, would be contrary to the rule of law and create uncertainty or unfairness for others in similar situations.  The Government clearly needs a transparent system for maintaining immigration control, and rules which are laid down to enable foreign nationals to enter and work in the UK must be respected.  However, this does not mean that there will always be no flexibility for those who have fallen outside of the requirements of their visa category for good reason.  For example, we frequently deal with indefinite leave to remain (ILR) applicants who have had more absences from the UK than permitted by the 5 years’ continuous residence requirement.  But this does not automatically mean that their ILR application would be refused.  If there are genuine reasons for the absences, such as maintaining a second business abroad or visiting a sick relative, the Border Agency can exercise their discretion in the applicant’s favour, provided the facts are presented in a clear, unambiguous manner.

Furthermore, it was stated in Miah that the extent of the non-compliance with the rules would not always be irrelevant in situations where there is an Article 8 case to be considered. For example, in the case of Chikwamba the appellants did not satisfy the technical requirements of the Immigration Rules, but did satisfy the substantive rules, and this clearly put them in a stronger position than applicants who do not meet the substantive requirements, such as maintenance and language ability requirements.