Binaura, R (on the application of) v Secretary of State for the Home Department

A mandatory Immigration Rule may require refusal of an application by an overstayer without infringing the non-fettering principle. The Secretary of State may retain a meaningful residual discretion to grant leave outside the Rules. Where guidance provides an exception for exceptional circumstances, the applicant must submit evidence of those circumstances with the application. Article 8 compatibility is assessed in the context of the immigration control regime as a whole.

The claimant challenged refusal of her application for further leave to remain as the dependent spouse of a Tier 4 migrant. She had overstayed for 183 days, whereas paragraph 319 C (j) of the Immigration Rules disregarded only 28 days of overstaying. She alleged that the Secretary of State had a discretion to relax the Rule, had failed to follow published guidance, had acted unfairly, and had applied a rule incompatible with Article 8. The issues concerned the mandatory nature of the Rule, the procedural requirement to provide evidence of exceptional circumstances, and the adequacy of the wider immigration regime in accommodating Convention rights.

1. The claim was dismissed. Paragraph 319 C (j) was mandatory. The claimant did not satisfy it because she had overstayed by more than 28 days. The Secretary of State therefore had no discretion under the Rule simply to relax the requirement.
2. The Rule did not offend the non-fettering principle. Immigration Rules were made under sections 1(4) and 3(2) of the Immigration Act 1971 and were not merely policy governing an otherwise unfettered discretion. The Secretary of State also retained a meaningful residual discretion to grant leave outside the Rules.
3. The published guidance provided a limited route for avoiding automatic refusal where exceptional circumstances had prevented an application within 28 days. The applicant had to submit evidence of those circumstances with the application. The claimant had submitted no such evidence, so the duty to consider exceptional circumstances did not arise.
4. The decision-making process was not unfair. The claimant could have raised her individual circumstances through the guidance or an application for discretionary leave outside the Rules.
5. Applying R(Ali and Bibi) v Secretary of State for the Home Department [2015] UKSC 68, paragraph 319 C (j) was capable of being operated compatibly with Article 8. The immigration control regime as a whole accommodated Convention rights.

First-instance judicial review. No prior appellate decision in the same proceedings is stated.