Secretary of State for the Home Department v Ngoc Bao Chau Le

The de minimis principle does not qualify compliance with the Immigration Rules. Once the applicable rule has been properly construed, compliance is a binary question: the applicant either meets its requirements or does not.

In particular, a minor shortfall under a bright-line rule cannot be treated as compliance. Invoking de minimis in that setting is, in substance, an impermissible revival of the rejected “near miss” or “sliding scale” approach. Marginal non-compliance may be relevant to proportionality in a distinct Article 8 case, but cannot itself establish compliance with the Rules.

The Secretary of State refused the respondent’s application for further leave to remain as a Tier 4 (General) Student. The respondent had to maintain a bank balance of at least £2,040 for 28 consecutive days. Her statements showed £2,028.32 at the relevant point.

The First-tier Tribunal allowed her appeal. It treated the shortfall as so slight that the maintenance requirement should be regarded as met under the de minimis principle.

The Secretary of State appealed to the Upper Tribunal. The central issue was whether a minimal failure to meet a mandatory maintenance requirement in the Immigration Rules could be treated as compliance.

1. The Secretary of State’s appeal was allowed. The First-tier Tribunal had erred in treating a small shortfall in the required maintenance funds as compliance with the Immigration Rules. Its decision was set aside.

2. The proper approach is first to construe the relevant Immigration Rule, applying Mahad v Entry Clearance Officer [2009] UKSC 16. The tribunal must then decide whether the facts found satisfy that rule. In the case of a mandatory bright-line requirement, this is a binary question. There is no intermediate category of substantial or near compliance.

3. The de minimis principle has no role in deciding whether an applicant has complied with the Immigration Rules. Treating a trivial breach as compliance is conceptually and practically indistinguishable from the rejected “near miss” or “sliding scale” principle. Bright-line rules promote consistency, certainty and equal treatment.

4. The court distinguished the separate proportionality exercise under Article 8 ECHR. A marginal failure under the Rules may form part of the factual assessment in a genuine Article 8 claim, but it cannot provide merit to a human-rights claim which otherwise lacks it. Nor can it alter the answer to whether the Rules themselves have been met.

5. The respondent’s application did not meet the mandatory maintenance requirement. The decision was re-made by dismissing her appeal, subject to any written representations within 21 days.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was allowed. The First-tier Tribunal’s decision was set aside and the respondent’s immigration appeal was re-made by dismissal.

• First-tier Tribunal: Allowed the respondent’s appeal against refusal of leave as a Tier 4 (General) Student, applying the de minimis principle. No citation was stated.