Miah v Secretary of State for the Home Department [2012] EWCA Civ 261

Mr Miah, a Bangladeshi citizen, applied for indefinite leave to remain as a Tier 2 Migrant but fell two months short of the required five-year residence period. The Court of Appeal rejected the 'Near-Miss' argument that near-compliance with Immigration Rules should diminish the weight given to immigration control in Article 8 assessments.

Facts

Mr Miah, a Bangladeshi citizen, entered the UK on 23 September 2005 with a work permit valid until 26 July 2010. On 23 July 2010, he applied for further leave to remain as a Tier 2 (General) Migrant. The Secretary of State refused his application on 1 September 2010. Mr Miah was approximately two months short of the five-year continuous residence requirement under paragraph 134 of the Immigration Rules. He appealed, relying on the Immigration Rules and Article 8 Convention rights, along with his wife and child as dependants.

Issues

The Near-Miss Argument

The central issue was whether the ‘Near-Miss’ principle applies to Immigration Rules assessments under Article 8. The appellants argued that where an applicant nearly satisfies the requirements of the Immigration Rules, the weight given to maintaining immigration control should be diminished when assessing proportionality under Article 8.

Judgment

The Court of Appeal dismissed the appeal regarding the Near-Miss argument. Lord Justice Stanley Burnton delivered the leading judgment, with which Lord Justice Lewison and Lord Justice Maurice Kay agreed.

Rejection of the Near-Miss Principle

The Court held that there is no Near-Miss principle applicable to Immigration Rules. Stanley Burnton LJ distinguished the Near-Miss argument from 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.”

The Court relied heavily on Lord Bingham’s observations in Huang [2007] UKHL 11:

“rules, to be administratively workable, [require] that a line be drawn somewhere”

“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”

Following Mongoto and Rudi

The Court followed the earlier decisions in Mongoto [2005] EWCA Civ 751 and Rudi [2007] EWCA Civ 1326, which had rejected the Near-Miss argument. Stanley Burnton LJ cited Carnwath LJ’s statement 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.”

Departure from Pankina

The Court declined to follow obiter comments in Pankina [2010] EWCA Civ 719 suggesting the Near-Miss principle might apply, noting that Mongoto and Rudi had not been cited in that case.

Stanley Burnton LJ stated:

“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.”

Implications

This decision confirms that the degree of non-compliance with Immigration Rules is irrelevant to Article 8 proportionality assessments. While the strength of an Article 8 claim must be assessed, the requirements of immigration control are not weakened by how close an applicant comes to satisfying the Rules. This maintains the integrity and predictability of the immigration system and prevents the creation of an uncertain ‘penumbra’ around bright-line rules.

Verdict: Appeal dismissed in relation to the Near-Miss argument. The Court held there is no Near-Miss principle applicable to the Immigration Rules, and the requirements of immigration control are not weakened by the degree of non-compliance with the Rules.

Source: Miah v Secretary of State for the Home Department [2012] EWCA Civ 261