Miah & Ors v Secretary of State for the Home Department

There is no near-miss principle applicable to the Immigration Rules. In an Article 8 proportionality assessment, the decision-maker must assess the strength of the applicant’s private and family life. However, the public interest in immigration control is not reduced because the applicant almost, but does not, meet a rule’s requirements.

Bright-line rules promote a workable, predictable and fair system. A truly de minimis departure may amount to compliance, but a failure to comply cannot otherwise be converted into a presumption of favourable treatment under Article 8.

The appellants challenged the refusal of further leave to remain for the first appellant as a Tier 2 (General) Migrant, and for his wife and child as dependants. The First-tier Tribunal dismissed their appeals under the Immigration Rules and Article 8. The Upper Tribunal dismissed their further appeal.

Before the Court of Appeal, the work-permit ground was stayed pending Supreme Court appeals in other cases. The Court heard the Article 8 ground. The first appellant was about two months short of the five years’ residence required by paragraph 134 of the Immigration Rules. The central issue was whether that near compliance reduced the weight to be given to immigration control in the Article 8 proportionality assessment.

1. The appeal was dismissed on the near-miss ground. The first appellant’s two-month shortfall was not de minimis. The court distinguished a true de minimis departure, which may mean that a rule has been complied with, from an admitted failure to comply with a rule.

2. The court followed Mongoto v Home Secretary [2005] EWCA Civ 751 and Rudi [2007] EWCA Civ 1326. Those decisions established, as necessary grounds of their decisions, that the law recognises no near-miss presumption. A policy or rule does not create a penumbra under which persons just outside its terms receive analogous treatment.

3. The court declined to follow and disapproved the contrary observations in Pankina [2010] EWCA Civ 719, [2011] QB 376, concerning marginal non-compliance with a financial criterion. Those observations were obiter. Article 8 requires an assessment of the extent and quality of private and family life, but non-compliance with a bright-line rule may admit only a yes-or-no answer. It does not follow that the degree of non-compliance must also be assessed.

4. The court held that the considerations stated in Huang [2007] UKHL 11, [2007] 2 AC 167, supported this conclusion. Immigration rules must draw lines if immigration control is to be administratively workable, predictable, consistent and fair. Treating near compliance as sufficient would undermine those functions.

5. The court added that conduct, including dishonesty where relevant, may affect the Article 8 balance. That qualification did not assist the appellants. The work-permit ground remained stayed.

• Court of Appeal (Civil Division) — dismissed the Article 8 near-miss ground; the separate work-permit ground was stayed pending Supreme Court appeals.
• Upper Tribunal (Immigration and Asylum Chamber) — dismissed the appellants’ appeal from the First-tier Tribunal.
• First-tier Tribunal (Immigration and Asylum Chamber) — dismissed the appeals against refusal of further leave to remain under the Immigration Rules and Article 8.