Secretary of State for the Home Department v MM & Anor

Compliance with the Immigration Rules depends on the requirements and temporal conditions which the particular Rule expressly imposes. Section 85(4) permits relevant later evidence, but it does not displace a Rule requiring a state of affairs at determination.

A Confirmation of Acceptance for Studies must be issued before the Tier 4 application if paragraph 116(a) of Appendix A requires it to have been issued within six months before the application.

In an Article 8 proportionality assessment, an alleged near-miss cannot introduce qualifications absent from the Rules or reduce the public interest in consistent immigration control. It may assist only an independently strong private or family life claim.

The Secretary of State appealed against Immigration Judge Duff’s decision allowing the respondents’ appeals from refusals to vary their leave. The first respondent had applied as a Tier 4 student and the second respondent’s case depended upon hers.

The proposed college’s Tier 4 sponsor licence was withdrawn after the application. The Immigration Judge treated the relevant date as the application date and found that the first respondent should have received the required points. The respondents also relied on later guidance, a later course with a different provider, and Article 8.

The Upper Tribunal had to decide whether the first respondent met the Tier 4 Rules and whether removal was a disproportionate interference with private life.

1. The Secretary of State’s appeal was allowed. The Immigration Judge had made a material error of law. His determination was set aside and the respondents’ appeals against refusal of variation of leave were dismissed.

2. Secretary of State for the Home Department v Pankina and Others [2010] EWCA Civ 718 did not establish a general rule that compliance with the Immigration Rules is assessed at the application date. Its concern was the impermissible imposition, through unlaid guidance, of requirements outside the Rules. Here, paragraph 116(e) of Appendix A expressly required the sponsoring institution still to hold its licence when the application was determined.

3. Section 85(4) of the Nationality, Immigration and Asylum Act 2002 allowed relevant later evidence but could not negate that express temporal requirement. The college did not hold the requisite licence at determination. The later email about a different course was not a fresh Tier 4 application.

4. Even if it were treated as such an application, the later Confirmation of Acceptance for Studies could not satisfy paragraph 116(a). It was issued after, rather than no more than six months before, the application.

5. Article 8 was engaged, but removal was proportionate. A near-miss argument must not rewrite the Rules by treating factors outside them, such as the student’s lack of responsibility for a sponsor’s loss of licence, as reducing the public interest in effective and predictable immigration control. The respondents had no independently strong private or family life case, and the first respondent had not made a valid application for the later course.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the Secretary of State’s appeal, set aside the Immigration Judge’s determination for material error of law, and substituted dismissal of the respondents’ appeals.
• First-tier Tribunal: Immigration Judge Duff had allowed the respondents’ appeals against the refusals to vary leave.