A rule is a rule

Miah & Ors v Secretary of State for the Home Department [2012] EWCA Civ 261 (07 March 2012)

This is an important case. The Court of Appeal (Maurice Kay, Stanley Burnton and Lewison LJJ) unanimously decided that there was no “near-miss” principle in immigration. The Court (Stanley Burnton LJ delivering the leading judgment) explained that non-compliance with an immigration rule was a bright line question requiring a “yes” or “no” answer without the need for a balancing exercise in individual cases: the Court also explained at [23] that in Pankina [2010] EWCA Civ 719,  Sedley LJ (as he then was) “erred in thinking” that like the Convention rights to a family and private life, “the immigration rules had to be assessed in the same way.”

The Facts

Mr Miah, who was granted a five-year work permit on 26 July 2005, and his wife and child (“the appellants”) were Bangladeshis who entered the UK on 23 September 2005. A Tier 2 (General) application – which was refused on 1 September 2010 – was made in the nick of time on 23 July 2010. In dismissing the appeals under the rules and pursuant to the appellants right to a private and family life, both the First tier Tribunal and the Upper Tribunal decided that there hadn’t been an error of law.

The Question/Argument

The question under consideration was whether 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 from this country should be permitted under Article 8(2)?

Grounds of Appeal

The two grounds of appeal were that the UT erred:

(1)  In its decision in relation to the requirement of a work permit because

  • The system of granting work permits was unlawful as it was outside the immigration rules. In arguing this point the appellants relied on Pankina, JCWI [2010] EWHC 3524 (Admin) and Alvi [2011] EWCA Civ 681. These arguments were not raised before either tier of the Tribunal and the Court of Appeal did not hear argument on this ground because of upcoming hearings in the Supreme Court in Alvi and Munir [2011] EWCA Civ 814.

(2) Because it failed to apply the near miss principle in considering the appellants’ Article 8 rights.

The Court of Appeal only heard submissions on the so-called “near miss” argument.

Stanley Burnton LJ

His Lordship, at [9]–[10], pointed out that the appellants’ written case differed from their oral submissions because in the former they accepted that the argument they made related to “a sliding scale” rather than a scenario where a “nearly” compliant applicant was to be given precedence over the exact requirements of the rules. This made it logical that the degree of non-compliance with the rules played no part in the assessment required by Article 8. Moreover, at [12], the Court distinguished the de minimis principle from the near miss principle.

The late Lord Bingham’s observations at [16] and [6] in Huang [2007] UKHL 11 were recalled to articulate the thought that “if immigration control is to be workable, predictable, consistent and fair as between one applicant and another … a line” needed to “be drawn somewhere.”

Stanley Burnton LJ sharply observed that a near miss argument was bound to fail because in both Mongoto [2005] EWCA Civ 751 – where Laws LJ at [25] called it “spurious” – and Rudi [2007] EWCA Civ 1326 – where Carnwath LJ at [28] considered it “trite law … based on a misconception” – the Court of Appeal was unequivocal in dismissing the idea in totality.

Zane Malik tried to turn all this around by relying on Sedley LJ’s obiter comments at [45]–[47] – whether Article 8 has any application to the SSHD’s application of her immigration policy – in Pankina. With Pankina hanging in the balance in the Supreme Court, Stanley Burnton LJ’s extreme deconstruction of case law couldn’t have arrived at a more fatal moment. He made clear that neither Pankina nor the case of MB (Article 8 – near miss) Pakistan [2010] UKUT 282 (IAC) made any mention of Mongoto and Rudi whose ratios he preferred to follow over what was said obiter in Pankina.

Stanley Burnton LJ made it clear at [23] that:

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.

Similarly, at [24] the Stanley Burnton LJ also said that he could see no distinction between those rules in respect of which “a miss is as good as a mile” and those where a near miss “may be regarded as close to a bull’s eye”. Likewise under [17] of Pankina, the work permit regime contained in paragraphs 128 and 134 of the immigration rules have “a status akin to the law” because they “are made by an established legislative route” under section 3(2) of the Immigration Act 1971. Furthermore, Pankina at [46] – “if the Home Secretary wishes the rules to be blackletter law, she needs to achieve this by an established legislative route” – must be read in a way which relates to those practices of the SSHD in administering the 1971 Act “that have not been incorporated” in the rules.

Therefore, at [25] the Court concluded that:

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.

The appeal was dismissed in relation to the near miss argument as no such principle was applicable to the immigration rules with the result that Mr Miah’s two month shortfall for the five year period set out in paragraph 134 of the rules was far from bull’s eye.

About Asad Khan

Advocate High Courts of Pakistan
This entry was posted in Bangladesh, Court of Appeal, ECHR, Pankina, PBS, Tier 2 and tagged , , , , . Bookmark the permalink.

One Response to A rule is a rule

  1. mkp says:

    http://www.freemovement.org.uk/2012/03/14/near-miss-for-near-miss/

    Please see this Freemovement post which clarifies that Zane Malik didn’t use the term “near-miss” but has been used by the courts by their own volition – in South Asia “suo moto”

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