The Secretary of State for the Home Department v KG (India)

A requirement under the Points Based Scheme that an applicant’s salary be at or above a specified minimum is a bright-line rule. Any shortfall means that the requirement has not been met and the relevant points cannot be awarded.

The de minimis principle cannot convert a failure to satisfy such a rule into compliance. In this context it would merely reproduce the rejected near-miss principle. Strict application promotes the certainty, consistency, fairness and administrative workability of immigration control. Whether de minimis can apply to another immigration rule depends on the construction and context of that rule, rather than upon a general principle.

The respondent applied for leave to remain as a Tier 2 (General) Migrant. Her certificate of sponsorship recorded an annual salary which, when adjusted from a 39-hour to the prescribed 37.5-hour week, was £22.15 below the minimum specified by the Immigration Rules HC 395.

The First-tier Tribunal rejected her contention that the recorded hours were mistaken but allowed her appeal because the shortfall was de minimis. The Upper Tribunal upheld that decision, regarding the shortfall as utterly trivial and distinct from a near miss.

The Secretary of State appealed. The central issue was whether the de minimis principle could treat a salary below the bright-line threshold as satisfying the Points Based Scheme.

1. Appeal allowed. The respondent’s prospective salary was below the minimum prescribed for the relevant occupation. She therefore did not have the appropriate salary and could not receive the necessary points under the Points Based Scheme. The Secretary of State was entitled to refuse leave and direct her removal.

2. The relevant provisions of the Immigration Rules HC 395 established a precise, bright-line requirement. The question whether the salary was at or above the specified rate admitted only a yes or no answer. The rule’s plain meaning permitted no implication that a sum below the threshold was sufficient. The First-tier Tribunal and Upper Tribunal had therefore erred by treating the shortfall as compliance.

3. The de minimis principle could not be used to circumvent that requirement. For this bright-line rule, de minimis was the rejected near-miss principle under another name. Allowing caseworkers or judges to excuse individual shortfalls would undermine the certainty, consistency, fairness and workability required by the Points Based Scheme. The size of one applicant’s shortfall was not decisive because the systemic consequences of widespread non-compliance also mattered.

4. The court applied the administrative considerations identified in Huang [2007] UKHL 11 and the rejection of a near-miss doctrine in Miah [2012] EWCA Civ. 261. Miah’s reference to a truly de minimis departure did not mean that an applicant who fell just short of a bright-line Points Based Scheme requirement had nevertheless complied.

5. Whether de minimis has room to operate under an immigration rule cannot be decided in the abstract. The observation in MD (Jamaica) [2010] EWCA Civ. 213 about a one-day delay concerned a different rule and stated no broad principle. Behary [2013] EWHC 3575 (Admin) illustrated that the construction, administrative importance and context of the particular requirement must be examined.

Tomlinson LJ and Sir James Munby P agreed with Sharp LJ.

1. Court of Appeal (Civil Division): Allowed the Secretary of State’s appeal and held that the respondent had not satisfied the appropriate-salary requirement of the Immigration Rules HC 395.
2. Upper Tribunal (Immigration and Asylum Chamber): Found no error of law in the First-tier Tribunal’s decision and upheld the application of de minimis to the salary shortfall.
3. First-tier Tribunal: Rejected the respondent’s factual case concerning her contracted hours but allowed her appeal because the salary shortfall was considered de minimis.