Afzal v Secretary of State for the Home Department

Where an applicant does not satisfy the Immigration Rules, the Secretary of State may nevertheless grant leave outside the Rules under a published policy requiring particularly compelling circumstances. The absence of a near-miss principle means that substantial compliance with the Rules does not, by itself, require favourable discretion or make refusal irrational. Relevant community detriment may be considered, but its weight is for the decision-maker. Section 55 of the Borders, Citizenship and Immigration Act 2009 can apply where the Secretary of State considers discretionary leave, including where affected children have no family relationship with the applicant. A failure to consider children’s welfare will not require quashing where the court is satisfied that the outcome would inevitably have been the same.

The claimant, a Pakistani national, had overstayed and applied for leave to remain as a Tier 2 Minister of Religion. He satisfied most substantive requirements but did not meet the relevant previous-leave requirement in paragraph 245HD of the Immigration Rules. The Secretary of State refused leave under the Rules and later declined to grant leave outside the Rules, having considered the claimant’s work as an Imam and teacher and the possible disruption to the Islamic Centre.

The claimant challenged that decision on the grounds that the discretion had been unlawfully exercised and that the Secretary of State had failed to comply with section 55 of the Borders, Citizenship and Immigration Act 2009. The central issues were whether substantial compliance created a relevant near-miss consideration and whether the welfare of children taught by the claimant had to be considered.

1. Claim dismissed. The discretion to grant leave outside the Immigration Rules was lawfully exercised. The Secretary of State was entitled to adopt a policy that such grants should be rare and reserved for particularly compelling circumstances.

2. The decision letter did not impose an additional test by referring to whether return would be unduly unreasonable. The effect of removal was a relevant circumstance in assessing whether particularly compelling reasons existed. The Secretary of State had considered the claimant’s community role and was entitled to decide that disruption to the Centre and its worshippers related principally to the employer and did not provide a sufficiently compelling reason.

3. The Secretary of State was entitled to conclude that paragraph 320 of the Immigration Rules did not make return unreasonable or compelling. Even if paragraph 320 had not been expressly considered, its effect could not itself constitute a compelling reason for granting leave outside the Rules.

4. The Court of Appeal’s decision in Miah and others v Secretary of State for the Home Department [2012] EWCA Civ 261 was binding. It resolved the conflict concerning the so-called near-miss principle by following Mongoto and Rudi, rather than the approach associated with Pankina and MB (Article 8-Near Miss) Pakistan. There is no general near-miss principle requiring substantial compliance with the Rules to receive special weight. The extent of compliance may be relevant in an appropriate case, but its omission here did not make the decision unlawful.

5. Section 55 of the Borders, Citizenship and Immigration Act 2009 applied to the exercise of discretion concerning leave to remain. It required consideration of the need to safeguard and promote the welfare of children taught by the claimant, despite the absence of a family relationship. The decision-maker had not undertaken that consideration. Nevertheless, on the limited evidence, the court was satisfied that proper consideration would have produced the same conclusion. The decision was therefore not quashed.