Behary & Anor, R (on the application of) v Secretary of State for the Home Department

An applicant has an established presence for the relevant student immigration requirement only if the specified leave or entry clearance is current when the application is made. Expired leave is not current.

Immigration Rules are construed sensibly and according to their natural meaning. Published guidance cannot alter or supply that meaning unless the Rule contains a genuine ambiguity between materially different meanings. A duty under section 55 of the Borders, Citizenship and Immigration Act 2009 does not require officials to investigate children’s interests where no application or evidence relies on them. Discretion outside the Rules must be considered when sought, or exceptionally where the facts make inaction irrational; a near miss under the Rules does not itself create that duty.

The appellants were former Tier 4 students who each applied for further leave one day after their existing leave had expired. They had sufficient funds only if they had an established presence under Appendix C to the Immigration Rules. The Secretary of State refused their applications because their leave was no longer current.

The Administrative Court rejected the first appellant’s claim in [2013] EWHC 3575 (Admin) and the second appellant’s claim in [2015] EWHC 337 (Admin). The first appeal also raised the welfare and private-life position of her children. The second raised whether discretion outside the Rules should have been considered. The common issue was the meaning of “established presence”.

1. The appeals were dismissed. The word “current” in paragraph 14 of Appendix C required existing relevant leave or entry clearance on the date of application. It could not mean merely recent or latest leave. Each appellant’s expired leave therefore prevented reliance on established presence.

2. The Immigration Rules were to be read according to their natural meaning, rather than by strict statutory-construction rules. There was no genuine ambiguity in paragraph 14. Accordingly, the appellants could not rely on archived departmental guidance to alter its meaning. The court further observed that material captured from departmental websites could relate to an earlier version of the Rules and could not safely be assumed to be current.

3. The first appellant’s children did not provide a basis to impugn the decision. The then-applicable form of paragraph 276ADE(iv) required both seven years’ residence and that it would not be reasonable to expect the child to leave the United Kingdom. The supplementary decision had addressed that question and lawfully concluded that the family could return together to Mauritius.

4. Section 55 of the Borders, Citizenship and Immigration Act 2009 did not require officials, who knew only that children existed, to conduct an artificial and evidence-free inquiry into their welfare. The applications were for student leave and the children’s applications were derivative. No application or material, express or implicit, sought leave based on the children’s interests.

5. The grant of permission in the second appellant’s judicial-review proceedings was properly treated as unrestricted because any ambiguity was resolved in his favour. That did not assist him. Although the Secretary of State has residual discretion to grant leave outside the Rules, there was no duty to consider it where it had not been requested and the facts were not exceptionally striking. A near miss under the Rules did not create such a duty.

• Court of Appeal (Civil Division): dismissed both appeals: [2016] EWCA Civ 702.
• Administrative Court: rejected the first appellant’s judicial-review claim: [2013] EWHC 3575 (Admin).
• Administrative Court: rejected the second appellant’s judicial-review claim: [2015] EWHC 337 (Admin).