Miah and Others v Secretary of State for the Home Department (No 1)

JurisdictionEngland & Wales
JudgeLord Justice Stanley Burnton,Lord Justice Lewison,Lord Justice Maurice Kay
Judgment Date07 March 2012
Neutral Citation[2012] EWCA Civ 261
Docket NumberCase No: C5/2011/1221
CourtCourt of Appeal (Civil Division)
Date07 March 2012

[2012] EWCA Civ 261




Designated Immigration Judge J F W Phillips

Royal Courts of Justice

Strand, London, WC2A 2LL


Lord Justice Maurice Kay

Lord Justice Stanley Burnton


Lord Justice Lewison

Case No: C5/2011/1221

Md Argu Miah Kukila Bibi Sultan Made Salman
Secretary of State for the Home Department

Zane Malik and Shahadoth Karim (instructed by Messrs Malik Law Chambers) for the Appellants

Jonathan Swift QC and Joanne Clement (instructed by the Treasury Solicitor) for the Respondent

Hearing dates: 14 th and 15 th February 2012

Lord Justice Stanley Burnton



This is the appeal of Md Argu Miah, his wife and child against the dismissal of their appeal by the Upper Tribunal (Immigration and Asylum Chamber) (Designated Immigration Judge Phillips) against the determination of the First Tier Tribunal dismissing their appeal against the decision of the Secretary of State refusing his application for further leave to remain in this country as a Tier 2 (General) Migrant and under Article 8 (and his wife's and child's applications as his dependants).


Permission to appeal was given primarily so that the Court could consider the so-called Near-Miss argument, which has been raised in a number of cases. Essentially, the argument is that where an appellant misses satisfying the requirements of the Immigration Rules by a small margin, and contends that his removal from the UK will breach his rights under Article 8, the weight to be given to the maintenance of immigration controls should be diminished for the purpose of the assessment as to whether his removal form this country should be permitted under Article 8(2).

The facts


Mr Miah is a citizen of Bangladesh, as are his wife and child. On 26 July 2005 he was granted an entry clearance as a work permit holder for five years, until 26 July 2010. He arrived in the United Kingdom on 23 September 2005. On 23 July 2010 he applied for further leave to remain as a Tier 2 (General) Migrant. On the expiry of his leave to enter the UK, his leave to remain in this country was continued by section 3C of the Immigration Act 1971, pending the determination of his application. The Secretary of State refused the application on 1 September 2010. Her decision letter included a notice served under section 120 of the Nationality, Immigration and Asylum Act 2002. On 14 September 2010 the appellants filed a notice of appeal to the First Tier Tribunal (Immigration and Asylum Chamber) and made a one-stop statement under section 120 relying on paragraph 134 of the Immigration Rules and the family's Article 8 Convention rights.


By its determination dated 1 December 2010 the First Tier Tribunal dismissed the appeal in so far as the appellants relied on paragraph 134 and Article 8. The appellants appealed to the Upper Tribunal. Designated Immigration Judge J F W Phillips dismissed the appeal, holding that Mr Miah did not meet the requirements of paragraphs 128 and 134 of the Immigration Rules because he had not held a work permit for the requisite 5 years, and that there had been no error of law in the consideration of the Article 8 claim by the First Tier Tribunal.

The grounds of appeal


There are two grounds of appeal, although the first may conveniently be subdivided into two. The first is that the Upper Tribunal erred in its decision in relation to the requirement of a work permit. The second is that it erred in upholding the First Tier Tribunal's decision on Article 8 because it failed to apply the Near-Miss principle.


The first ground of appeal may be subdivided into two. First, is the straightforward contention that a person whose leave to remain as a work permit holder is continued by section 3C of the 1971 Act after the expiration of his work permit continues to have leave "as a work permit holder" for the purposes of paragraph 134, and so may be entitled to indefinite leave to remain under that paragraph even though for part of the requisite period of 5 years he had no extant work permit. Secondly, it is submitted that since the system of granting work permits is outside the Immigration Rules, it is unlawful, and reliance is placed on the judgments of this Court in Pankina [2010] EWCA Civ 719 [2011] QB 376, that of the Administrative Court in JCWI [2010] EWHC 3524 (Admin) and that of this Court in Alvi [2011] EWCA Civ 681. This second aspect of the first ground was not raised before either the First Tier Tribunal or the Upper Tribunal.


Because the Supreme Court is to hear appeals from the decisions in Munir [2011] EWCA Civ 814 and Alvi in April, the Court decided to stay this appeal in relation to the first ground pending the judgments of the Supreme Court in those cases, and we heard no argument on it.


The second ground is the so-called Near-Miss argument, on which we heard argument and on which this is my judgment.

Near-Miss: the parties' submissions


As the above chronology demonstrates, when he made his application to the Secretary of State in July 2010 Mr Miah was only some two months short of continuous residence for the 5-year period required by paragraph 134. Mr Malik put it clearly and succinctly in his skeleton argument:

"It is uncontroversial that Immigration Rules evidence and express the Secretary of State's immigration policy. Thus, an individual's right under Article 8(1) falls to be balanced against the requirements of Rules. There is an inverse relationship between the degree to which there is compliance with the Rules and the immigration policy imperative which demands that unsuccessful applicants be removed: the more the applicant effects substantial compliance with the Rules, the less it can be said that immigration policy requires his removal."


Put this way it is not a Near-Miss argument. Rather, there is a sliding scale, with the weight to be given to the Immigration Rules increasing with the degree of non-compliance. However, in oral argument the submission was rather that the weight to be given to non-compliance with the Rules diminishes where the applicant is "nearly" or "almost" compliant.


For the Secretary of State, Mr Swift QC submitted that the Rules are, as they say, rules, and the public interest in maintaining immigration control requires that the Rules be complied with. An assessment of the degree of non-compliance with the Rules plays no part in the assessment required by Article 8.



I first of all point out that the "Near-Miss" principle contended for is not the same as the de minimis principle. If a departure from a rule is truly de minimis, the rule is considered to have been complied with. The starting point for the Near-Miss argument is that the rule has not been complied with. In the present case, the failure to satisfy the requirement of 5 years' lawful residence as a work permit holder, by a period of some 2 months, was not de minimis.


Mr Swift relied on what was said by Lord Bingham, giving the opinion of the Appellate Committee of the House of Lords, in Huang [2007] UKHL 11 [2007] 2 AC 167, in particular at paragraphs 6 and 16:

"6. In this country, successive administrations over the years have endeavoured, in Immigration Rules and administrative directions revised and updated from time to time, to identify those to whom, on grounds such as kinship and family relationship and dependence, leave to enter or remain should be granted. Such rules, to be administratively workable, require that a line be drawn somewhere. Thus, for example, rule 317, relevant to the claim of Mrs Huang, makes provision for the admission of a parent, grandparent, or other dependent relative of any person present and settled in the United Kingdom if (among other grounds) she is a mother or grandmother who is a widow aged 65 years or over. Mrs Huang does not qualify under this head since she was not, when the decision was made, aged 65 or over and she is not a widow. Such a rule, which does not lack a rational basis, is not to be stigmatised as arbitrary or objectionable. But an applicant's failure to qualify under the Rules is for present purposes the point at which to begin, not end, consideration of the claim under article 8. The terms of the Rules are relevant to that consideration, but they are not determinative."

"16. The authority will wish to consider and weigh all that tells in favour of the refusal of leave which is challenged, with particular reference to justification under article 8(2). There will, in almost any case, be certain general considerations to bear in mind: the general administrative desirability of applying known rules if a system of immigration control is to be workable, predictable, consistent and fair as between one applicant and another; the damage to good administration and effective control if a system is perceived by applicants internationally to be unduly porous, unpredictable or perfunctory; the need to discourage non-nationals admitted to the country temporarily from believing that they can commit serious crimes and yet be allowed to remain; the need to discourage fraud, deception and deliberate breaches of the law; and so on. … The giving of weight to factors such as these is not, in our opinion, aptly described as deference: it is performance of the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to...

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