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

The word “current” in the Immigration Rules ordinarily means existing and unexpired leave. Where the Rules have that clear meaning, there is no ambiguity permitting recourse to guidance or other extraneous material as an aid to construction. Guidance may assist only where a genuine ambiguity exists, particularly where the Secretary of State has made a public assurance supporting a more favourable interpretation. A one-day delay in applying for further leave did not engage the de minimis principle or preserve an applicant’s established presence under the Rules.

The claimant, a Bangladeshi national, challenged the refusal of his application for further leave to remain as a Tier 4 (General) Student. His previous leave expired on 30 January 2012 and he applied on 31 January 2012. The Secretary of State concluded that he lacked an established presence under paragraph 14 of Appendix C to the Immigration Rules and therefore had to satisfy the higher maintenance-funds requirement.

Permission was granted on the construction and de minimis grounds. A further ground concerning residual discretion was refused. The central issues were whether “current” leave could include the applicant’s most recent expired leave, having regard to published guidance, and whether the one-day delay was legally immaterial.

1. Construction of “current”. The natural and ordinary meaning of “current” in paragraph 14 of Appendix C is existing or present leave. It contrasts with leave previously granted but expired. The requirement that the applicant “has” the relevant leave reinforces that construction.
2. Use of extraneous material. The authorities recognise a gateway of genuine ambiguity before guidance may be used in construing the Immigration Rules. Adedoyin v Secretary of State for the Home Department and Pokhriyal v Secretary of State for the Home Department did not displace the general approach in Mahad v Entry Clearance Officer. They concerned ambiguity of a different kind. Since “current” was unambiguous, the relevant guidance could not assist the claimant. In any event, the guidance could not alter the ordinary meaning of the Rules.
3. The reasoning in R (Behary) v Secretary of State for the Home Department was accepted. “Current” could not mean “most recent” so as to include expired leave. The claimant’s concession that current and most recent leave were synonymous reinforced the conclusion.
4. De minimis. The court accepted the approach in Behary that the one-day delay did not avoid the consequence of the Rules. The court also noted the Supreme Court’s rejection in Patel of a formalised “near miss” or sliding-scale principle. The distinction between that principle and de minimis made no practical difference here.
5. The judicial review claim was dismissed.