The Secretary of State for the Home Department v KG (India)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Sharp,Lord Justice Tomlinson |
| Judgment Date | 23 May 2016 |
| Neutral Citation | [2016] EWCA Civ 477 |
| Date | 23 May 2016 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2015/0661 |
[2016] EWCA Civ 477
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
JUDGE J.J. MAXWELL
IA/07818/2014
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE FAMILY DIVISION
Lord Justice Tomlinson
and
Lady Justice Sharp
Case No: C5/2015/0661
Ms Lisa Busch QC (instructed by The Government Legal Department) for the Appellant
Mr H Kannangara (instructed by Law and Lawyers) for the Respondent
Hearing date: 8 March 2016
Introduction
This is an appeal from a decision of the Upper Tribunal (Immigration and Asylum Chamber) (the Upper Tribunal) upholding the decision of the First-tier Tribunal which had allowed the respondent's appeal against the decision of the Secretary of State for the Home Department, to refuse her application for leave to remain in the United Kingdom as a Tier 2 (General) Migrant, and to remove her from the United Kingdom.
The decision of the Upper Tribunal was promulgated on 12 November 2014; that of the First-tier Tribunal was promulgated on 3 September 2014. The relevant decision letter of the Secretary of State was dated 20 January 2014. The Upper Tribunal granted permission to appeal on 6 January 2015.
The appeal concerns the application of the principle de minimus non curat lex (the law does not concern itself with trivial things, or trifles) to the Immigration Rules. The argument for the appellant Secretary of State is that there was no room for the application of that principle in this case, both as a matter of law and on the facts. For the reasons that follow I agree, and would allow this appeal.
Background
The background facts are not complicated.
The respondent is a citizen of India. On 24 April 2008 she was given Leave to Enter the United Kingdom as a Student migrant until 31 July 2009, on conditions restricting work and prohibiting recourse to public funds. On 13 August 2009 she was granted Leave to Remain in the United Kingdom as a Tier 4 (General) Student Migrant until 31 March 2010, subject to the same conditions. On 29 March 2012 she was granted Further Leave to Remain in the United Kingdom as a Tier 1 (Post Study) Migrant until 29 March 2012, again subject to conditions. On 8 November 2013 her Leave to Remain in the United Kingdom was curtailed so as to expire on 7 January 2014.
On the 20 January 2014, the Secretary of State refused the respondent's application of 6 January 2014 for Leave to Remain as a Tier 2 (General) migrant. On the same date, a decision was taken to remove her by way of removal directions under section 47 of the Immigration, Asylum and Nationality Act 2006.
In making her application for Leave to Remain as a Tier 2 (General) Migrant, the respondent had relied on the occupation code 2231 as a Nurse specified under Appendix J of the Immigration Rules. The particular occupation code required an annual salary of £21,176 based on a 37.5 hour week employment. The respondent's Certificate of Sponsorship however confirmed this salary was paid for a 39 hour week. This led to a shortfall in the respondent's income of £22.15 per annum.
In her application to the First-tier Tribunal, the respondent claimed she was not in breach of the rules, not on the ground that the shortfall was de minimis, but on the basis there was no shortfall. She said her working hours were 37.5 hours per week and not 39 hours per week as the Certificate her employer had supplied had recorded. It was argued on her behalf that the Secretary of State's calculation that her income fell short of the required sum had resulted from that mistake and she should have contacted the respondent's employer to make further enquiries before refusing the application. The First-tier Tribunal rejected that argument. The First-tier Tribunal judge, Judge Maxwell said there was no evidence that the hours on the Certificate were mistaken. Accordingly, no issue of evidential flexibility arose.
The respondent's appeal was however upheld by the First-tier Tribunal on a different basis to the one she advanced. Judge Maxwell said he accepted there is no 'near-miss' principle applicable to the Immigration Rules. However in reliance on certain observations in Miah and ors v Secretary of State for the Home Department [2012] EWCA Civ. 261, he said there is a distinction to be drawn between the concept of a 'near-miss' and the de minimis principle and that the respondent's failure to meet the annual salary requirements of the Immigration Rules was indeed de minimus on the facts.
He reached that conclusion on the basis that, the shortfall of £22.15 per annum, by his calculation, amounted to 1p per hour per 5 day working week. In the light of this, he found "so far as the earnings requirements are concerned, the Rule may be considered to have been complied with" and that therefore "on the balance of probabilities, the [respondent] has proved she meets all the requirements of the Immigration Rules." He said the reasons given by the Secretary of State did not justify the refusal, and her decision was not in accordance with the law and the applicable Immigration Rules.
The Upper Tribunal found no error of law in the First-tier Tribunal's determination. It said the First-tier Tribunal's decision, which was careful to draw a distinction between a 'near-miss' and an utterly trivial shortfall, was properly reasoned and correct. The Upper Tribunal judge, Deputy Upper Tribunal Judge Manuell, went on to say: "No doubt in reaching that conclusion the judge had taken into account the fact that the Respondent had been in the United Kingdom lawfully since 2008 and that her application had been an obviously meritorious one."
The relevant rules
Paragraph 245HA provides, so far as relevant:
"245HA Entry clearance
All migrants arriving in the UK and wishing to enter as a Tier 2 (General) Migrant … must have a valid clearance for entry under the relevant one of these routes. If they do not have a valid entry clearance, entry will be refused".
The requirements for entry clearance are set out in paragraph 245HB. This provides:
"To qualify for entry clearance as a Tier 2 (General) Migrant …, an applicant must meet the requirements listed below. If the applicant meets these requirements, entry clearance will be granted. If the applicant does not meet these requirements, the application will be refused …".
The requirements are then set out in subparagraphs (a)-(p) of paragraph 245HB, and include, so far as relevant, the following:
" Requirements:
(a) The applicant must not fall for refusal under the general grounds for refusal, and must not be an illegal entrant.
(b) the applicant must:
(i) have or have last been granted, entry clearance, leave to enter or leave to remain as:
…
(2) a Tier 2 Migrant.
…
(f) If applying as a Tier 2 (General) Migrant, the applicant must have a minimum of 50 points under paragraphs 76 to 79D of Appendix A …".
Paragraphs 76 to 79D of Appendix A to the Rules set out the "Attributes for Tier 2 (General) Migrants". Paragraph 76 provides that an applicant applying for entry or leave to remain as a Tier 2 (General) Migrant must score 50 points for attributes. Paragraph 76A provides that the available points for entry clearance or leave to remain are shown in Table 11A. Table 11A indicates that 30 points may be awarded in respect of "Certificate of Sponsorship". See further the "Notes" set out in paragraphs 77–78D of Appendix A. The respondent was awarded 30 points for "Sponsorship". This part of the Secretary of State's decision has not been in issue at any stage.
Table 11A also indicates that 20 points may be awarded (and, as is also the case with "Certificate of Sponsorship", must be awarded if the applicant is to be granted leave) in respect of "Appropriate salary".
Paragraph 79 of Appendix A is concerned with "Appropriate salary". This paragraph provides that the points awarded for appropriate salary will be based on the applicant's gross annual salary to be paid by the Sponsor, subject to the conditions set out in subparagraphs (i)-(iv). Paragraph 79B then provides, so far as relevant:
"No points will be awarded for appropriate salary if the salary referred to in paragraph 79 above is less than the appropriate rate for the job as stated in the codes of practice in Appendix J …".
Appendix J is concerned with the Code of Practice for, inter alia, Tier 2 Sponsors. Paragraph 1 of Appendix J explains that that Appendix sets out the skill level and appropriate salary rate "for jobs, as referred to elsewhere in these Rules". Paragraph 2 further explains that the:
"Standard Occupational Classification (SOC) codes are based on the SOC 2010 system designed by the Office for National Statistics, except where otherwise stated. This system is designed to cover all possible jobs. The related job titles listed in Tables 1 to 7 of this Appendix are taken from guidance published by the Office for National Statistics".
According to paragraph 3:
"References to 'job' refer to the most appropriate match for the job in question, as it appears in the tables in this Appendix. The job description must correlate with the most appropriate match, according to further guidance on the SOC 2010 system published by the Office for National Statistics, and reproduced in Codes of Practice for Sponsors published by the UK Border Agency. The most appropriate match may be applied based on the job-description in an application, even if this is not the match stated by the applicant or...
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