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

Section 55 of the Borders, Citizenship and Immigration Act 2009 applies broadly to immigration functions. Where the decision-maker knows, or ought to know, that a decision may affect children in the United Kingdom, their best interests must be a primary consideration unless cogent reasons justify a different approach. The duty is not necessarily triggered where an application relies solely on the Immigration Rules and does not raise the children’s interests. The de minimis principle does not turn a late present application into an in-time application where immigration rules require a bright-line date. Harshness may instead be addressed through residual discretion outside the Rules.

The claimant, a Mauritian national, sought judicial review of refusals of further leave to remain as a Tier 4 student and related refusals concerning her family. Her application was posted one day after her previous leave expired. The Secretary of State therefore treated her as lacking an established presence under Appendix C of the Immigration Rules and required the higher maintenance funds, which she could not demonstrate.

The claim also challenged the Secretary of State’s later supplementary decision concerning the welfare of the claimant’s two children. The issues were whether section 55 of the Borders, Citizenship and Immigration Act 2009 was engaged, whether the claimant qualified for the reduced maintenance requirement, and whether discretion should have been exercised outside the Rules.

1. Section 55 of the Borders, Citizenship and Immigration Act 2009 applies to any immigration function, including a non-appealable refusal of leave. It arises where the Secretary of State knows, or ought to know, that the decision may affect children in the United Kingdom. Mere knowledge that an applicant has children does not necessarily trigger the duty where their interests have not been relied upon as a basis for remaining.
2. Where engaged, the children’s best interests must be treated as a primary consideration unless cogent reasons justify a different approach. The duty operates independently of Article 8. The March 2012 decisions were lawful because the applications relied solely on the Immigration Rules. The later supplementary decision lawfully assessed the children’s ages, residence, nationality, education, language, family relationships and likely adaptation to Mauritius.
3. The application date was 30 November 2011, the date of posting under paragraph 34G of the Immigration Rules. The de minimis principle may apply when assessing historic residence, but it did not convert this late present application into an in-time application. Immigration application dates require a bright-line rule.
4. In paragraph 14 of Appendix C, current leave means existing or present leave, not expired leave previously held. The claimant therefore lacked an established presence and could not satisfy the lower maintenance requirement or paragraph 245ZX(d).
5. The Secretary of State lawfully considered the one-day delay, the asserted illness and the post-office closure. Her refusal to exercise discretion outside the Rules was not irrational or perverse. The judicial review claim was dismissed.

This was a first-instance judicial review in the Administrative Court. No prior appellate decision in the same proceedings is stated.