The Secretary of State for the Home Department v BN

In a private-life claim under Article 8, proportionality requires a genuine balance of all relevant factors. It cannot be confined to an applicant’s ability to maintain herself and an asserted misunderstanding of detailed evidential requirements.

The public interest in immigration control retains weight where a non-discretionary rule sets substantive evidential requirements. A person with temporary student leave who seeks to switch into employment has no legitimate expectation of remaining unless she satisfies the Immigration Rules. The inconvenience of leaving, possible loss of employment, and consequences flowing from failure to meet the Rules will not ordinarily make refusal disproportionate.

A Kenyan national applied for leave as a Tier 1 (Post-Study Work) migrant. The Secretary of State refused the application because she had not shown that she held the required £800 for the three months immediately before applying.

An Immigration Judge found that she failed under paragraph 245Z of HC 395, but allowed her appeal on Article 8 grounds. The judge considered the rule’s inflexible operation, her educational record, employment, self-maintenance and the consequences of having to leave the United Kingdom.

On reconsideration, which became an appeal to the Upper Tribunal, the Secretary of State challenged the Article 8 reasoning. The central issue was whether refusal was a disproportionate interference with the claimant’s private life.

1. Appeal allowed. The Immigration Judge materially erred in allowing the claimant’s appeal under Article 8. The Upper Tribunal remade the decision and dismissed the claimant’s appeal.

2. The only disputed Article 8 issue was proportionality. The Immigration Judge’s conclusion that allowing applicants who could maintain themselves but misunderstood evidential requirements would not damage immigration control gave insufficient weight to the public interest. A proper balance required consideration of all relevant factors, not only self-maintenance and misunderstanding of the Rules and Policy Guidance.

3. The transitional provisions gave potential applicants time to adjust to the new financial requirements. Once those provisions had expired, ignorance of the requirements was no excuse. The judge’s general treatment of misunderstanding as decisive therefore misrepresented the scheme.

4. The judge also erred by treating the claimant’s prospective loss of permanent full-time employment, and inconvenience to her employer, as material in her favour. Her student leave was subject to employment restrictions. She had no entitlement or legitimate expectation to remain in permanent employment unless she met the Immigration Rules.

5. Similarly, the consequences of becoming an overstayer after an unsuccessful application did not distinguish her from other unsuccessful applicants. Article 8 required regard to her knowledge that her immigration position was temporary and precarious.

6. R (on the application of Forrester) v SSHD [2008] EWHC 2307 (Admin) concerned a defective payment rather than failure to provide evidence of compliance with substantive requirements. Its observations did not establish that non-discretionary Immigration Rules lacked public-interest weight. OA (Nigeria) [2008] EWCA Civ 82 was fact-sensitive and concerned disruption to ongoing studies, not a post-study switch to employment.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was allowed. The Immigration Judge’s Article 8 decision was set aside for material error of law, and the claimant’s appeal was dismissed on remaking.
• Immigration Judge: Allowed the claimant’s appeal on human-rights grounds, notwithstanding her failure to satisfy paragraph 245Z of HC 395.