ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Designated Immigration Judge J F W Phillips
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE STANLEY BURNTON
LORD JUSTICE LEWISON
| MD ARGU MIAH
SULTAN MADE SALMAN
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Jonathan Swift QC and Joanne Clement (instructed by the Treasury Solicitor) for the Respondent
Hearing dates : 14th and 15th February 2012
Crown Copyright ©
Lord Justice Stanley Burnton :
The grounds of appeal
Near-Miss: the parties' submissions
"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."
"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. …."
"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.
"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'."
"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  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)"
"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, …"
"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  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."
Lord Justice Lewison:
Lord Justice Maurice Kay