The Secretary of State for the Home Department v KG (India)

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 minimusnon 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.

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.”

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 his sponsor”.

The Tables in question have been substituted from 6 April 2014, subject to savings for applications made on or after 6 April 2014 using a Confirmation of Sponsorship assigned to the applicant before that date (HC 1138 as amended by HC 1201).

As at 20 January 2014 however, Table 2 set out occupations skilled to National Qualifications Framework (NQF) level 6 and above. This included nurses. The Table specified that the relevant salary level for “Band 5” nurses was £21, 176 per annum. Paragraph 14 of Appendix J provided that where the Rules state that an applicant must be paid the appropriate salary rate for a job as set out in Appendix J, the rate will be determined “as follows”. By subparagraph (a) of paragraph 14 where the most appropriate match for the job in question appeared in Table 2, the appropriate rate was as stated in that Table. By subparagraph (e)(i), the rates stated were per year and, where the source was NHS Agenda for Change, a 37.5 hour week.

As can be seen, the rules with which we are concerned in this appeal, identify precise criteria or requirements that the respondent had to satisfy before points could be awarded to her under the Points Based Scheme. Indeed, the words of the relevant rules could not have been clearer (“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 …”).

Plainly, as a matter of arithmetic, the respondent had not satisfied the precise criteria specified for the “appropriate salary”, because her salary was not at or above the appropriate rate. It was below it. The respondent did not therefore have the “appropriate salary”, and it inexorably followed in my judgment that she was not entitled to be awarded the relevant “appropriate salary” points under the Points Based Scheme.

The Secretary of State’s refusal letter of 20 January 2014, after setting out the uncontroversial facts, gave these reasons for awarding no points to the respondent for “Appropriate Salary.”

“The salary included on your Certificate of Sponsorship is not at or above the appropriate rate for the job, as specified under Appendix A of the Immigration Rules and the Codes of Practice (which are specified under Appendix J of the Immigration Rules).

In line with Appendix A with reference to Appendix J of the Immigration Rules we have, therefore, been unable to award points for Appropriate Salary.

The reason for this decision is detailed below.

Your Certificate of Sponsorship states that your prospective employment most closely corresponds to occupation code 2231 Nurses on the Codes of Practice (which are also specified under Appendix J of the Immigration Rules).

The minimum acceptable rate of pay for a 37.5 hour working week for your prospective employment is £21,176 per annum, as stated on occupation code 2231 Nurses under the heading Band 5 and equivalent.

Your Certificate of Sponsorship states that your salary would be £22,000 per annum for a 39 hour week which equates to £21, 153.85 per annum for a 37.5 hour week.

As your prospective salary is not at or above the minimum rate as specified in Codes of Practice, we do not consider it to be at the appropriate rate for the job.

We have therefore been unable to award points for Appropriate Salary.”

In my view, the refusal letter was (patently) correct both as to the facts, and the legal consequences flowing from them, and, with respect to the judges below, I think the purported application of the principle of de minimis in this context was inapt or misplaced.

The rule the respondent had to comply with was a “bright line” rule, where the answer to the relevant question – whether the prospective salary was at or above the minimum rate specified in the Codes of Practice – was only capable of a “Yes” or “No” answer. It must be taken that Parliament intended the rule to mean what it said; and as a matter of construction, there was no room for an implication that anything short of the specified amount was sufficient to satisfy the requirement. As Stanley Burnton LJ (with whom Maurice Kay LJ and Lewison LJ agreed) said in Miah at para 25, “a rule is a rule.”

The First-tier Tribunal judge may well have resorted to the de minimis principle, as the Upper Tribunal judge said, because of his view that the respondent’s application (though falling marginally short of the threshold for appropriate pay) was otherwise a meritorious one. But if the First-tier Tribunal judge took that approach, in my judgment he was wrong to do so. As I have already said, this was to ignore the plain and ordinary meaning of the rule which the respondent was required to comply with in order to achieve the requisite number of points. More generally however, this failed to have regard to the importance of certainty and consistency which underpins the effective and fair operation of the Points Based Scheme as between one applicant and another; and the requirement, of which those attributes are an important part, that the Scheme must be workable. These considerations would in my judgment inevitably be undermined by an ad hoc application of the de minimis principle, by the individual case worker (or Immigration Judge) as the case may be.

As Lord Bingham of Cornhill said, when giving the opinion of the Appellate Committee of the House of Lords in Huang [2007] UKHL 11 [2007] 2 AC 167 at paras 6 and 16, rules to be administratively workable require that the line be drawn somewhere; he pointed to 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, and also to the damage to good administration and effective control if a system is perceived by applicants internationally to be unduly porous, unpredictable or perfunctory.

The First-tier Tribunal judge said, correctly, that it is clear that in the context of the Points Based Scheme there is no room for the ‘near-miss’ principle: see Miah at para 26 and Secretary of State for the Home Department v Raju [2013] EWCA Civ. 754 at para 12. In my judgment however, in relation to the “bright line” rules we are considering, the de minimis principle is no more than the ‘near-miss’ principle under a different guise.

Miah concerned an application made within Tier 2 of the Points Based System. The argument the court addressed in that case, was whether the weight to be given to non-compliance with the Immigration Rules, for the purposes of the assessment as to whether an applicant’s removal from this country should be permitted under article 8(2) of the European Convention on Human Rights, diminishes where the applicant is “nearly” or “almost” compliant with the Rules.

At paras 14 and 25 of Miah, Stanley Burnton LJ cited the observations made by Lord Bingham in Huang to which I have just referred, and which he found persuasive in determining that in the context of the Points Based Scheme, and the Immigration Rules there is no room for a ‘near-miss’ principle. Stanley Burnton LJ also cited at para 17, from the judgment of Carnwarth LJ (as he then was) in Rudi [2007] EWCA Civ. 1326. There it was said at para 28 that the law knows of no ‘near-miss’ principle, and there is no presumption that those falling just outside the policy should be treated as though they were within it, or given special consideration for that reason. See further, Mongoto v Secretary of State for the Home Department [2005] EWCA Civ. 751 at paras 24 to 25.

Stanley Burnton LJ then gave these, amongst other reasons, for preferring the approach in Rudi and Mongoto to what was said about the ‘near-miss’ principle in Pankina v Secretary of State for the Home Department [2010] EWCA Civ. 719:

“24…the judgment in Pankina ([2010] EWCA Civ. 719]) accepts that there are some Rules that do not admit of a Near-Miss argument: those requiring academic and linguistic qualifications. It follows that there would be two classes of Immigration Rules: those to which the Near-Miss principle applies, and those to which it does not. The basis of the distinction is that a financial criterion, to which the principle is said to apply, ‘has in itself no meaning’. But if the financial criterion has no meaning, it must be irrational to apply it, and it may be the subject of judicial review. Yet it is clear that it does have meaning: it is the test of the liability of an applicant to become a charge on public funds. I see nothing meaningless or irrational in a rule requiring specified minimum financial means to be shown by an applicant for entry of leave to remain, and therefore I cannot see the basis for the distinction between those rules in respect of which a ‘miss is as good as a mile’ and those in relation to which a near miss may be regarded as close to a bull’s eye….

25.

A rule is a rule. The considerations to which Lord Bingham referred in Huang require rules to be treated as such. Moreover, once an apparently bright-line rule is regarded as subject to a Near-Miss penumbra, and a decision is made in favour of a near-miss applicant on that basis, another applicant will appear claiming to be a near miss to that near miss. There would be a steep slope away from predictable rules, the efficacy and utility of which would be undermined.”

Ms Busch QC for the Secretary of State submits, rightly in my judgment, that the considerations which persuaded the court in Miah, that there was no room for the application of a ‘near-miss’ principle to the Immigration Rules, apply with equal force in the circumstances of the present case. If it were permissible for the First-tier Tribunal to have allowed the respondent’s appeal by reference to a de minimis principle, as she says, that would, or at least could, pose the same risks to the operation of an efficient and predictable immigration system as those to which the ‘near-miss’ principle was liable to give rise. In short, it would give rise to precisely the problems which the court, in declining to recognise a ‘near miss’ principle has been keen to pre-empt.

In that context, if it was postulated that the de minimis principle applied generally, where would the line be drawn? And who would make the decision, and applying what criteria? Mr Kannangara, for the respondent could provide no satisfactory answers to those questions.

Two further matters should be noted. First, as is clear from the passages cited above, in eschewing any divide between rules that had to be complied with to the letter, and those that did not, the court in Miah rejected the proposition that a distinction might be drawn between financial requirements and other criteria. Secondly, the precise financial threshold of £21,176 which the respondent failed to surmount was taken from the national NHS pay-scales for nurses applicable at the time; and it was imposed on the basis that the sum reflected an appropriate salary for employers to offer in both the public and the private sector before resorting to migrant labour. It was of course, for the drafter of the rules with the endorsement of Parliament (by way of negative resolution) to determine the relevant requirement; but as can be seen, the threshold the respondent was required to meet was by no means a meaningless or arbitrary one.

I would add that in my judgment, the significance of a failure to meet such a requirement is not to be measured solely by the margin by which any particular applicant falls short of the particular financial threshold that has been set. I have already referred to what might be described as the Huang considerations. Further, though the failure to meet the threshold in one case might be regarded as insignificant in monetary terms, the same could not be said if such failures were to become widespread.

It is true as Mr Kannangara points out, that at para 12 of Miah, Stanley Burnton LJ said that the ‘near-miss’ principle contended for was not the same thing as the de minimis principle, and that he went on to say: “If a departure from a rule is truly de minimis, the rule has 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.” However, I do not consider that he was thereby intending to suggest that the de minimis principle applied to bright line rules, which require compliance to the letter so that those who failed to “get under the wire” in the Points Based Scheme, but only just, could then argue they had nonetheless complied with the rules and theirs was not a ‘near-miss’ case. In any event, the position here as I have said, was a straightforward one: because there was a shortfall, the requirements of the rule had not been met.

Similarly, I do not consider that any support for the respondent’s case is to be found in MD (Jamaica)and anor v Secretary of State for the Home Department [2010] EWCA Civ. 213 to which Mr Kannangara also refers. The matter under consideration there was the long residence provisions contained in paragraph 276 of the Immigration Rules HC 395 which required continuous lawful residence for a period of 10 years. The appellants failed to qualify as there were periods (9 weeks and 38 days respectively) when they were not lawfully resident but over stayers. In dismissing the appeal, Dyson LJ (as he then was) with whom Sir Mark Potter, P. and Longmore LJ agreed, rejected an argument for the appellants that it would be unfair to give a strict interpretation to the rules. At para 27, he said that he saw nothing absurd in giving the rule its plain and ordinary meaning. He went on to say that the case of someone who submitted his application one day late, could be catered for by the de minimis principle but it could not operate to save the case of either appellant, on the facts.

This brief observation, made in relation to a different rule, was not intended in my view, to articulate a broad principle of general application; nor do I think that it assists in relation to the construction of the rule we are considering here. Whether there is room for the application of the de minimis principle is not a matter that can be determined in the abstract. This point is well-illustrated in my view, by the subsequent decision in R (on application of Sandia Behary) v Secretary of State for the Home Department [2013] EWHC 3575 (Admin) where a de minimis argument made on the basis that an application for leave to remain was made only one day late – an example of the sort of “default” briefly touched on in MD (Jamaica) - did not survive close and careful judicial analysis: see paras 84 to 105.

The Secretary of State in Behary did not submit that the de minimis principle had no application to the Immigration Rules. However Andrew Grubb (sitting as a Deputy High Court Judge) considered the need for certainty and for a bright line rule, militated against the application of the principle to the rule he was considering; and in any event, on the facts, the delay of one day was not de minimis. It is to be noted that he drew a distinction between a situation in which a delay (of one day for example) might be seen to be trivial when considering whether a period of historic residence met the requirements of many years lawful residence, and the situation in Behary where the issue was simply whether the claimant had made an application on a certain date, which “palpably” she had not. Further as he pointed out, when an application for leave is made in a particular case is a fundamental part of the administration of immigration control which cannot be looked at in isolation, as it can have a very wide range of consequences: see para 98.

In the event however, the question that had to be answered in this case was a simple one. Did the respondent have an annual salary in the requisite amount at the time of her application? The answer to that question was “No”. The respondent had therefore not complied with the requisite rule; and she could not be awarded the points for “Appropriate Salary” under the Points Based Scheme. The Secretary of State was accordingly entitled to refuse the respondent’s application for leave to remain in the United Kingdom as a Tier 2 (General) Migrant, and to make directions for her removal from the United Kingdom. For the reasons given, I would allow the appeal.

I agree.

I also agree.