Kaur v Secretary of State for the Home Department

Under the points-based immigration system, a mandatory requirement in the Immigration Rules must be met as stated. A near miss does not create a discretion to overlook non-compliance. The Secretary of State has a general residual discretion to grant leave outside the Rules, but is not ordinarily legally obliged to consider it unless the applicant asks for that relief or the circumstances are so striking that public law irrationality would arise. A tribunal may allow an appeal only within the statutory grounds. A refusal complying with the Rules is not unlawful, and refusal to depart from the Rules is not an exercise of discretion for the statutory appeal jurisdiction.

The applicant applied for further leave to remain as a Tier 4 (General) Student. The required funds had been in her account for 27 days rather than the consecutive 28-day period required by paragraph 245ZX and Appendix C of the Immigration Rules. The Secretary of State refused the application.

The First-tier Tribunal allowed the appeal to the extent of remitting the matter to the Secretary of State to exercise discretion. The Upper Tribunal found an error of law, set aside that decision, dismissed the appeal under the Rules and rejected the Article 8 claim. The central issues were whether the First-tier Tribunal had jurisdiction to remit the case and whether the Upper Tribunal had properly identified and corrected an error of law.

1. Permission refused. The Court of Appeal held that the First-tier Tribunal had erred in law. The application did not meet the mandatory financial requirements of paragraph 245ZX of the Immigration Rules because the funds had been held for 27, not 28, consecutive days. The Rules required refusal, reflecting the need for certainty, consistency and predictability in points-based decision-making.
2. The Secretary of State had not been asked to grant leave outside the Rules. There was no legal obligation, on these facts, to exercise or consider a residual discretion. Such an obligation arises where an applicant expressly requests consideration and relies on material supporting it; exceptionally, circumstances may be so striking that public law irrationality requires consideration or clarification. This was not such a case.
3. The First-tier Tribunal could not allow the appeal under section 86(3)(a) of the Nationality, Immigration and Asylum Act 2002, because the decision accorded with the law and the applicable Rules. Nor could it rely on section 86(3)(b): no discretion had been exercised in making the decision, and section 86(6) provides that refusal to depart from the Rules is not an exercise of discretion for that purpose. The proper course was dismissal under section 86(5).
4. The First-tier Tribunal’s reasoning was ambiguous, but the Secretary of State’s grounds sufficiently raised the relevant point of law. The Upper Tribunal therefore had jurisdiction under sections 11 and 12 of the Tribunals, Courts and Enforcement Act 2007 to identify the error, set aside the decision and remake it. Its decision was unimpeachable. The application for permission to appeal to the Court of Appeal was refused.

• Court of Appeal (Civil Division): permission to appeal refused.
• Upper Tribunal (Immigration and Asylum Chamber): found an error of law, set aside the First-tier Tribunal’s decision, remade the decision, dismissed the appeals under the Immigration Rules and rejected the Article 8 claim.
• First-tier Tribunal: allowed the appeals to the extent of remitting the matters to the Secretary of State to exercise discretion.