Solaja, R (On the Application Of) v Secretary of State for the Home Department

Discretion to grant leave outside the Immigration Rules is exceptional and highly fact-sensitive. It need not be considered in every case involving failure to meet a points-based requirement. It should, however, be considered where unusual circumstances may have caused or materially contributed to the failure, including administrative delay, retention of money paid to the Secretary of State, an honest mistake, a good immigration history and serious resulting prejudice. A fresh application following rejection as invalid is ordinarily a new application, so the relevant maintenance period may be assessed by reference to that application. Where discretion is engaged, the Secretary of State must address the relevant human-rights considerations, including Article 8 and section 55 of the 2009 Act, with the weight to be given to them left to the decision-maker.

The claimant applied for further leave to remain under the Tier 1 points-based system. His first application was rejected as invalid because he paid reduced fees which, owing to obsolete guidance concerning the Highly Skilled Migrant Programme, he honestly believed were applicable. The Secretary of State retained £750 of the payment for several weeks before rejecting the application and returning the money.

The claimant then submitted a fresh application with the correct fees. It was refused because his bank balance fell below the required maintenance threshold during the relevant 90-day period. The issues were whether the second application should be treated as a continuation of the first and, alternatively, whether the Secretary of State was required to consider discretion to grant leave outside the Rules.

1. Fresh application point. The first application had been rejected in its entirety for non-payment of the correct fees. The second application was therefore not a variation or continuation of the first. The Secretary of State was entitled to assess the maintenance requirement by reference to the later application and its relevant 90-day period.
2. Discretion outside the Rules. The question was highly fact-sensitive. Discretion to relax clear threshold requirements should be considered only rarely, but it is not confined to cases in which the applicant has fully complied with the Rules. Here, the combination of circumstances required consideration: the claimant’s genuine and understandable fee mistake, the Secretary of State’s delay in rejecting the first application, the associated delay in returning the £750, the claimant’s otherwise adequate funds, his excellent immigration history, and the disproportionate consequences for his family and future immigration position.
3. The Secretary of State’s retention of the £750 materially caused the later shortfall. If the money had been returned promptly, or the rejection communicated earlier, the claimant would probably have satisfied the maintenance requirement. The guidance and the observations in Basnet [2012] UKUT 00113 (IAC) reinforced the importance of prompt validation and communication, although those observations were not binding rules of law.
4. Where discretion falls to be considered, the Secretary of State must at least turn her mind to Article 8 and section 55 of the 2009 Act, although the weight and outcome remain matters for her.
5. The claim was upheld. The decision was quashed and remitted to the Secretary of State for reconsideration. The claimant was awarded 60 per cent of his costs, subject to detailed assessment if not agreed.

Not stated in the judgment.