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Cite as: [2012] WLR(D) 68, [2012] 3 WLR 492, [2012] EWCA Civ 261, [2012] Imm AR 702, [2013] QB 35

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		Neutral Citation Number: [2012] EWCA Civ 261
		Case No: C5/2011/1221

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Designated Immigration Judge J F W Phillips

Royal Courts of Justice
Strand, London, WC2A 2LL

07/03/2012

B e f o r e :

LORD JUSTICE MAURICE KAY
LORD JUSTICE STANLEY BURNTON
and
LORD JUSTICE LEWISON
____________________

Between:

	MD ARGU MIAH KUKILA BIBI SULTAN MADE SALMAN	Appellants
	- and -
	SECRETARY OF STATE FOR THE HOME DEPARTMENT	Respondent

____________________

Zane Malik and Shahadoth Karim (instructed by Messrs Malik Law Chambers) for the Appellants
Jonathan Swift QC and Joanne Clement (instructed by the Treasury Solicitor) for the Respondent
Hearing dates : 14th and 15th February 2012
____________________

HTML VERSION OF JUDGMENT
____________________

Lord Justice Stanley Burnton :

Introduction

This is the appeal of Md Argu Miah, his wife and child against the dismissal of their appeal by the Upper Tribunal (Immigration and Asylum Chamber) (Designated Immigration Judge Phillips) against the determination of the First Tier Tribunal dismissing their appeal against the decision of the Secretary of State refusing his application for further leave to remain in this country as a Tier 2 (General) Migrant and under Article 8 (and his wife's and child's applications as his dependants).

Permission to appeal was given primarily so that the Court could consider the so-called Near-Miss argument, which has been raised in a number of 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 diminished for the purpose of the assessment as to whether his removal form this country should be permitted under Article 8(2).

The facts

Mr Miah is a citizen of Bangladesh, as are his wife and child. On 26 July 2005 he was granted an entry clearance as a work permit holder for five years, until 26 July 2010. He arrived in the United Kingdom on 23 September 2005. On 23 July 2010 he applied for further leave to remain as a Tier 2 (General) Migrant. On the expiry of his leave to enter the UK, his leave to remain in this country was continued by section 3C of the Immigration Act 1971, pending the determination of his application. The Secretary of State refused the application on 1 September 2010. Her decision letter included a notice served under section 120 of the Nationality, Immigration and Asylum Act 2002. On 14 September 2010 the appellants filed a notice of appeal to the First Tier Tribunal (Immigration and Asylum Chamber) and made a one-stop statement under section 120 relying on paragraph 134 of the Immigration Rules and the family's Article 8 Convention rights.

By its determination dated 1 December 2010 the First Tier Tribunal dismissed the appeal in so far as the appellants relied on paragraph 134 and Article 8. The appellants appealed to the Upper Tribunal. Designated Immigration Judge J F W Phillips dismissed the appeal, holding that Mr Miah did not meet the requirements of paragraphs 128 and 134 of the Immigration Rules because he had not held a work permit for the requisite 5 years, and that there had been no error of law in the consideration of the Article 8 claim by the First Tier Tribunal.

The grounds of appeal

There are two grounds of appeal, although the first may conveniently be subdivided into two. The first is that the Upper Tribunal erred in its decision in relation to the requirement of a work permit. The second is that it erred in upholding the First Tier Tribunal's decision on Article 8 because it failed to apply the Near-Miss principle.

The first ground of appeal may be subdivided into two. First, is the straightforward contention that a person whose leave to remain as a work permit holder is continued by section 3C of the 1971 Act after the expiration of his work permit continues to have leave "as a work permit holder" for the purposes of paragraph 134, and so may be entitled to indefinite leave to remain under that paragraph even though for part of the requisite period of 5 years he had no extant work permit. Secondly, it is submitted that since the system of granting work permits is outside the Immigration Rules, it is unlawful, and reliance is placed on the judgments of this Court in Pankina [2010] EWCA Civ 719 [2011] QB 376, that of the Administrative Court in JCWI [2010] EWHC 3524 (Admin) and that of this Court in Alvi [2011] EWCA Civ 681. This second aspect of the first ground was not raised before either the First Tier Tribunal or the Upper Tribunal.

Because the Supreme Court is to hear appeals from the decisions in Munir [2011] EWCA Civ 814 and Alvi in April, the Court decided to stay this appeal in relation to the first ground pending the judgments of the Supreme Court in those cases, and we heard no argument on it.

The second ground is the so-called Near-Miss argument, on which we heard argument and on which this is my judgment.

Near-Miss: the parties' submissions

As the above chronology demonstrates, when he made his application to the Secretary of State in July 2010 Mr Miah was only some two months short of continuous residence for the 5-year period required by paragraph 134. Mr Malik put it clearly and succinctly in his skeleton argument:

"It is uncontroversial that Immigration Rules evidence and express the Secretary of State's immigration policy. Thus, an individual's right under Article 8(1) falls to be balanced against the requirements of Rules. 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."

Put this way it is not a Near-Miss argument. Rather, there is a sliding scale, with the weight to be given to the Immigration Rules increasing with the degree of non-compliance. However, in oral argument the submission was rather that the weight to be given to non-compliance with the Rules diminishes where the applicant is "nearly" or "almost" compliant.

For the Secretary of State, Mr Swift QC submitted that the Rules are, as they say, rules, and the public interest in maintaining immigration control requires that the Rules be complied with. An assessment of the degree of non-compliance with the Rules plays no part in the assessment required by Article 8.

Discussion

I first of all point out that the "Near-Miss" principle contended for is not the same as the de minimis principle. If a departure from a rule is truly de minimis, the rule is considered to have been complied with. The starting point for the Near-Miss argument is that the rule has not been complied with. In the present case, the failure to satisfy the requirement of 5 years' lawful residence as a work permit holder, by a period of some 2 months, was not de minimis.

Mr Swift relied on what was said by Lord Bingham, giving the opinion of the Appellate Committee of the House of Lords, in Huang [2007] UKHL 11 [2007] 2 AC 167, in particular at paragraphs 6 and 16:

"6. In this country, successive administrations over the years have endeavoured, in Immigration Rules and administrative directions revised and updated from time to time, to identify those to whom, on grounds such as kinship and family relationship and dependence, leave to enter or remain should be granted. Such rules, to be administratively workable, require that a line be drawn somewhere. Thus, for example, rule 317, relevant to the claim of Mrs Huang, makes provision for the admission of a parent, grandparent, or other dependent relative of any person present and settled in the United Kingdom if (among other grounds) she is a mother or grandmother who is a widow aged 65 years or over. Mrs Huang does not qualify under this head since she was not, when the decision was made, aged 65 or over and she is not a widow. Such a rule, which does not lack a rational basis, is not to be stigmatised as arbitrary or objectionable. But an applicant's failure to qualify under the Rules is for present purposes the point at which to begin, not end, consideration of the claim under article 8. The terms of the Rules are relevant to that consideration, but they are not determinative."

…

"16. The authority will wish to consider and weigh all that tells in favour of the refusal of leave which is challenged, with particular reference to justification under article 8(2). There will, in almost any case, be certain general considerations to bear in mind: the general administrative desirability of applying known rules if a system of immigration control is to be workable, predictable, consistent and fair as between one applicant and another; the damage to good administration and effective control if a system is perceived by applicants internationally to be unduly porous, unpredictable or perfunctory; the need to discourage non-nationals admitted to the country temporarily from believing that they can commit serious crimes and yet be allowed to remain; the need to discourage fraud, deception and deliberate breaches of the law; and so on. … The giving of weight to factors such as these is not, in our opinion, aptly described as deference: it is performance of the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice. That is how any rational judicial decision-maker is likely to proceed. …."

I readily concede that the Appellate Committee did not have before it a "Near-Miss" argument. Nonetheless, Lord Bingham's reference in paragraph 6 to "rules, to be administratively workable, [requiring] that a line be drawn somewhere" and in paragraph 16 to "the general administrative desirability of applying known rules if a system of immigration control is to be workable, predictable, consistent and fair as between one applicant and another; the damage to good administration and effective control if a system is perceived by applicants internationally to be unduly porous, unpredictable or perfunctory" to be helpful and generally inconsistent with a "Near-Miss" principle.

The Near-Miss argument was considered by this Court in Mongoto [2005] EWCA Civ 751. Laws LJ said, in a judgment with which the other members of the Court agreed:

"23. It is convenient, next, to address a further distinct argument first raised in Mr Husain's supplementary skeleton argument, dated 5th April 2005, dealing with the Huang case. This argument is based on a Home Office policy announcement made in 2004, described by Mr Husain as 'the family concession'. The reference in fact goes back to an announcement of October 2003 by the Secretary of State to the effect that, exceptionally, families satisfying a certain specified criteria would be granted indefinite leave to remain outside the Immigration Rules. The essential criteria were that the applicant in the case had applied for asylum before 2nd October 2000, and that he had at least one dependant aged under 18, other than a spouse, in the United Kingdom on either 2nd October 2000 or 24th October 2003.

24. In this case, as I have said, the appellant applied for asylum on 30th December 2002. The policy did not apply to him and Mr Husain does not contend otherwise. He says, however, that the appellant may derive what he calls 'analogical support' from the policy for his claim that his removal would be disproportionate to the legitimate aim of immigration control.

25. I have to say that in my judgment this is a spurious argument. The Secretary of State is entitled, and this must be elementary, to elaborate a limited policy to assist particular categories of would-be entrants, provided, of course, that the policy is rational and otherwise lawful, as the family concession plainly was. It would be quite wrong for the courts to build expectations approaching enforceable rights on the back of such a policy for the benefit of persons to whom, in terms, the policy did not apply and, it is assumed, was not intended to be applied. For the courts to take such a course would or might offer a wholly illegitimate discouragement to the adoption of humane, but exceptional, policy positions by the Secretary of State. I would reject this part of the appellant's case out of hand.

The argument was again considered by this Court in Rudi [2007] EWCA Civ 1326. It was summarised by Carnwath LJ, with whose judgment the other members of the Court agreed, as follows:

"When assessing proportionality under Article 8, the decision-maker wrongly failed to take into account the extent to which the claimant fell within "the spirit or rationale" of the Concession, even if not 'within its precise letter'."

Carnwath LJ addressed the argument in paragraphs 28 to 32 of his judgment. It is sufficient to cite paragraphs 28, 29 and 32:

"28. This argument is, in my view, based on a misconception. The Secretary of State is of course entitled to have a policy. The promulgation of the policy normally creates a legitimate expectation that it will be applied to those falling within its scope unless there is good reason for making an exception. So much is trite law. It is also trite law that the existence of the policy does not excuse the decision-maker from due consideration of cases falling outside it. However, the law knows no "near-miss" principle. There is no presumption that those falling just outside the policy should be treated as though they were within it, or given special consideration for that reason.

29. Authority to that effect, if it is needed, is to be found in Mongoto v Home Secretary [2005] EWCA Civ 751. …. (paras 24-5).

…

32. In conclusion on this point, I agree respectfully with Ouseley J's summary:

'… I accept that there may be cases in which the rationale for a policy may inform the judge of the significance of a particular point; there may be lacunae, but that is very different from treating a policy as the basis for extension by analogy or comparison… There is not a near-miss penumbra around every policy providing scope for its extension in practice to that which it did not cover…' (para 79)"

Mr Malik relied on what Sedley LJ said in Pankina. One of the questions for the court in that case was question 2(c), whether Article 8 has any application to the Secretary of State's application of her immigration policy. Sedley LJ, in a judgment with which the other members of the Court agreed, said:

"45. There appears to me, in this situation, to be no escape from the proposition that in exercising her powers, whether within or outside the rules of practice for the time being in force, the Home Secretary must have regard and give effect to applicants' Convention rights. This will mean in most cases evaluating the extent and quality of their family and private life in the United Kingdom and the implications, both for them and for the United Kingdom, of truncating their careers here.

46. That in turn will require consideration of the significance of the criteria by which their eligibility has been gauged and found wanting. It is one thing to expect an applicant to have the necessary academic and linguistic qualifications: here a miss is likely to be as good as a mile. It is another for an applicant to fall marginally or momentarily short of a financial criterion which in itself has no meaning: its significance is as a rough and ready measure of the applicant's ability to continue to live without reliance on public funds. Having £800 in the bank, whether for three continuous months or simply at the date of application, is no doubt some indication of this; but people who are able to meet the test may fall on hard times after obtaining indefinite leave to remain, and others who fail it would, if allowed to remain, never become a charge on public funds. The Home Office has to exercise some common sense about this if it is not to make decisions which disproportionately deny respect to the private and family lives of graduates who by definition have been settled here for some years and are otherwise eligible for Tier 1 entry. If the Home Secretary wishes the rules to be blackletter law, she needs to achieve this by an established legislative route.

47. So long as the rules are what the Immigration Act 1971 says they are, they must in my judgment be operated in conformity with s.6 of the Human Rights Act. This means that I would answer question 2(c) affirmatively, …"

Sedley LJ, presiding in the Upper Tribunal (Immigration and Asylum Chamber) in MB (Article 8 – near miss) Pakistan [2010] UKUT 282 (IAC), returned to the Near-Miss argument again a short time after the judgment in Pankina.

"4. There is before this Tribunal a witness statement containing a paragraph referring to the appellant's personal circumstances. It was not before the Immigration Judge and there was therefore no evidential basis upon which to proceed with any Article 8 claim. The passage before us might or might not found an Article 8 case but that does not arise unless and until it is established that there was an error of law in the way the Immigration Judge at first instance handled the matter.

5. We have considered whether, notwithstanding that it was not on her written agenda, the Immigration Judge ought to have dealt with this as what one could call a Robinson obvious point. It is the case, as Mr Blundell very properly for the Home Office has pointed out to us, that this is a door which at least is arguably opened by what has recently been said by the Court of Appeal in the case of Pankina and Others [2010] EWCA Civ 719 from paragraphs 41 to 47. Because we are not required to determine this question, we do no more than note that it is at least respectably arguable that if an Article 8 case is properly before a fact finding Tribunal or Tribunal of law in this field, one of the matters which may go to proportionality is what is described by Ms Asanovic as a near miss argument. That is to say, if one is considering on the one hand the demands of a firm and fair immigration control policy and on the other the situation of somebody whose family or private life is going to be disrupted in a material way by removal for non-compliance with the Rules. It may well matter what the nature and degree of non-compliance was. We go no further down that road at present because it does not arise materially in this case. This case, in our judgment, goes off on the fact that there was no Article 8 claim adumbrated before the Immigration Judge, nor was any such claim also obviously present as to require to be dealt with whether or not it had been put in the grounds of appeal."

Unfortunately, neither Mongoto nor Rudi was cited to the Court in Pankina, and Sedley LJ did not refer to the judgments in those cases. I would doubt that they were cited in MB (Article 8 – near miss) Pakistan. So we have a conflict of authority.

Given this conflict, I have no difficulty in preferring, and I would follow, the judgments in Mongoto and Rudi, for a number of reasons.

First, in my judgment what was said in Mongoto and Rudi on this issue was in both cases part of the ratio decidendi, necessary for the decision of the Court. That was not the case in Pankina: the answer to the question which I paraphrase as "Is the Secretary of State obliged to take Article 8 into account?" did not require the Court to address the relative weight to be given to the Article 8 considerations or the relative weight to be given to the non-compliance with the Secretary of State's policy or the Immigration Rules. It follows that we are bound to follow what was said in Mongoto and Rudi and to refuse to follow what was said obiter in Pankina.

Secondly, in my view it does not follow from the fact that the extent and quality of an applicant's family and private life in this country must be assessed that the degree of non-compliance with an Immigration Rule similarly falls to be assessed. One is always a matter of degree, requiring assessment; non-compliance with a rule may be a bright line question, admitting of an answer Yes or No. In my respectful judgment, Sedley LJ erred in thinking that both had to be assessed in the same way.

Thirdly, the judgment in Pankina accepts that there are some Rules that do not admit of a Near-Miss argument: those requiring academic and linguistic qualifications. It follows that there would be two classes of Immigration Rules: those to which the Near-Miss principle applies, and those to which it does not. The basis of the distinction is that a financial criterion, to which the principle is said to apply "has in itself no meaning". But if the financial criterion has no meaning, it must be irrational to apply it, and it may be the subject of judicial review. Yet it is clear that it does have meaning: it is a test of the liability of an applicant to become a charge on public funds. I see nothing meaningless or irrational in a rule requiring specified minimum financial means to be shown by an applicant for entry or leave to remain, and therefore I cannot see the basis for the distinction between those rules in respect of which "a miss is as good as a mile" and those in relation to which a near miss may be regarded as close to a bull's eye. Lastly, paragraphs 134 and 128 of the Immigration Rules are part of a code that, as was held in Pankina, has "a status akin to law" (paragraph 17 of Sedley LJ's judgment), and are made by "an established legislative route" under section 3(2) of the Immigration Act 1971. The last sentence of paragraph 46 of the judgment in Pankina must, I think, be read as relating to practices of the Secretary of State in the administration of that Act that have not been incorporated in the Immigration Rules.

Finally, quite apart from authority, I prefer the approach stated in Mongoto and Rudi. A rule is a rule. The considerations to which Lord Bingham referred in Huang require rules to be treated as such. Moreover, 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.

For these reasons, I would dismiss the appeal in relation to the Near-Miss argument. In my judgment, there is no Near-Miss principle applicable to the Immigration Rules. The Secretary of State, and on appeal the Tribunal, must assess the strength of an Article 8 claim, but the requirements of immigration control is not weakened by the degree of non-compliance with the Immigration Rules.

This is not to say that the conduct of an applicant is irrelevant in the assessment of an Article 8 claim. Dishonesty, for example, may itself give rise to the application of immigration policy, in a deportation case, or in the application of paragraph 322 of the Rules. In such cases, the case for an Article 8 claim to outweigh the application of the Rule in question may be particularly weak. That, however, is not a case such as the present, and I need say no more about it.

Lord Justice Lewison:

I agree.

Lord Justice Maurice Kay

I also agree.