Abdelghani, R (on the application of) v Secretary of State for the Home Department

A person granted discretionary leave outside the Immigration Rules because requiring entry clearance would disproportionately interfere with family-life rights does not thereby qualify for settlement under the spouse provisions. The Rules must be construed according to their clear language and cannot be extended to treat non-compliance as compliance. However, a blanket application of a six-year settlement policy may be unlawful where the applicant met all substantive spouse requirements and the only reason for granting discretionary leave was the accepted Article 8 obstacle to obtaining entry clearance abroad. The policy must remain flexible and may require individual relaxation. A policy governing residual discretion is not necessarily a rule requiring Parliamentary scrutiny under section 3(2) of the Immigration Act 1971.

The claimant, an Egyptian national, lived in the United Kingdom with his British wife, who had serious physical and mental health problems and depended on him as her main carer. He lacked spouse entry clearance and was granted successive periods of discretionary leave outside the Immigration Rules because requiring him to obtain clearance from Egypt would have interfered disproportionately with his Article 8 rights.

He sought indefinite leave to remain, arguing that he satisfied the substantive spouse requirements, that the procedural entry-clearance requirement should be treated as waived or was irrational, and that the discretionary-leave policy was a rule requiring Parliamentary scrutiny under section 3(2) of the Immigration Act 1971. The central issues were the construction and rationality of paragraph 287 of HC 395 and the legal status of the policy.

1. Construction of the Rules. Paragraph 287(a)(i)(a) plainly required an extension of stay granted in accordance with paragraphs 281 to 286 of HC 395. That included the procedural requirement in paragraph 281(b)(vi) for valid spouse entry clearance. Paragraph 2 of the Rules did not justify reading words into paragraph 287. A person granted discretionary leave outside the Rules could not qualify for settlement under the two-year spouse route.
2. Irrationality. The distinction between persons who complied with the Immigration Rules and persons who did not was rational in general terms. Paragraph 287 was not irrational merely because it did not cater for persons admitted outside the Rules, including for Article 8 reasons. The claimant’s construction and irrationality arguments therefore failed.
3. Article 8 and the six-year policy. The judge considered that, where an applicant met all substantive spouse requirements and the sole obstacle was an entry-clearance requirement which the Secretary of State had accepted should not be enforced for Article 8 reasons, routine application of the six-year discretionary-leave period would probably be unlawful. It could amount to irrational and unjustified unequal treatment. The Secretary of State retained a discretion to relax the policy, although the point was not finally determined because the claimant disavowed a challenge based on the policy’s application.
4. Section 3(2). Whether a measure is a rule depends on its function and practical application, not its label. Section 3(2) concerns measures creating a yardstick by which applications for leave are evaluated. It does not extend to guidance promoting consistency in the exercise of a residual, case-by-case discretion. The discretionary-leave guidance therefore did not require Parliamentary scrutiny under section 3(2).
5. The judicial review claim was dismissed. The challenged decisions reached the correct conclusion that paragraph 287 did not apply, and the remaining grounds failed.