No “near miss” principle in immigration cases, despite Article 8

The Court of Appeal has ruled that there is no “near miss” principle in the application of the Immigration Rules. People who miss the five years’ continuous residence requirement – even if by two weeks – will not have met the rules. There is no exception.

Mr Miah’s application for further leave to remain as a Tier 2 (General) migrant was refused by the Home Secretary. As was his application under Article 8 (right to private and family life) of the European Convention on Human Rights, and the application of his wife and child to be his dependents. His appeal to the First Tier Tribunal was unsuccessful, as was his appeal to the Upper Tribunal.

Permission to go to the Court of Appeal was granted so that the “Near Miss” argument could be considered. Lord Justice Stanley Burnton explained the argument:

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 question then is: should there be laxity in the application of the immigration rules when they are not adhered to by a small margin and there is a valid Article 8 claim?

Facts

In July 2005 Mr Miah, a citizen of Bangladesh, was granted entry clearance as a work permit holder until July 2010. He arrived in Britain in 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 Immigration Act 1971.

He lost both of his tribunal appeals: as he had arrived in Britain in September 2005 he was two months short of the five years’ continuous residence.

Court of Appeal

The argument for Mr Miah was that, “the more the applicant effects substantial compliance with the Rules, the less it can be said that immigration policy requires his removal.” As Burnton LJ said, this is not a “near miss” argument but a sliding scale argument.

The Home Secretary’s argument was that rules are rules and public interest requires them to be complied with.

It was made clear by the court that this was not the de minimis rule: if a departure from a rule is so small as to be insignificant it will not be a breach of the rule. Rather, this is about non compliance with the Rules.

Lord Bingham’s dicta from Huang was quoted with approval: “rules, to be administratively workable, require a line to be drawn somewhere.” His dicta about the damage that is done to a system by porous rules was also quoted.

And that is the heart of this issue. It is about the rule of law. Making exceptions for people is an unfair administration of justice. Why should someone who misses the rules by three weeks not be allowed to remain, but someone who missed by two get leave to remain? If the rules require five years then a strict application must be adhered to in order that people are treated equitably.

The argument made on behalf of Mr Miah is an aberration of legal positivism. The law is arbitrary be definition: it draws lines. The more exceptions we make for people the less we obey the rule of law, which Richard Epstein describes as, “the free and fair application of general principles without bias or exception.”

If I do not fulfil the terms of a contract I am in breach – maybe only by a small margin (which would reduce damages) but breach none the less. If I do not meet the five year requirements I cannot get leave to remain. As Carnworth LJ said in Rudi:

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.

The conclusion of the court was that “a rule is a rule”. If we do not like the rules we must follow Bentham – obey immediately, protest ceaselessly.

This guest post by Henry Oliver first appeared on the Mulberry Finch blog and is reproduced here with permission and thanks

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