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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Behary, R (On Application) v Secretary of State for the Home Department [2013] EWHC 3575 (Admin) (20 November 2013) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2013/3575.html Cite as: [2013] EWHC 3575 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/11/2013

Andrew Grubb:

Introduction

1. The Claimant, Sandra Behary is a citizen of Mauritius. She arrived in the United Kingdom on 5 May 2005 with her husband, Naresse Behary and her daughter, Yuvna Behary who was born on 25 November 2003. She was given leave to enter as a visitor for six months. On 22 July 2005 she applied for leave to remain as a student which, on 15 August 2005, was granted until 31 October 2006. There then followed a number of applications for further leave as a student. These culminated, for present purposes, with an application by the Claimant made on 18 February 2010 for leave to remain as a Tier 4 (General) Student. On 13 April 2010, she was granted that leave until 29 November 2011. During this time, her husband and daughter were granted leave matching that of the Claimant. The Claimant and her husband also had a son, Ranveer born on 12 October 2007 in the United Kingdom and, again as I understand it, he has had leave in line with that of his mother
2. On 30 November 2011, the Claimant posted an application to the Home Office for further leave to remain as a Tier 4 (General) Student and applications were also made by her husband and two children as her dependents. The applications were received by the Secretary of State on 1 December 2011.
3. In a decision letter dated 1 March 2012, the Secretary of State refused the applications of the Claimant and her family. The Claimant's application was refused on the basis that she could not demonstrate that she had available the required funds as set out in Appendix C of the Immigration Rules (Statement of Changes in Immigration Rules, HC 395 as amended).
4. The Secretary of State concluded that the Claimant's application was made after her leave had expired on 29 November 2011 and as a consequence she could not demonstrate that she had an "established presence" studying in the UK under paragraph 14 of Appendix C of the Rules as she did not have "current…leave to remain as a Tier 4 migrant". By virtue of paragraph 11 of Appendix C, the Claimant was therefore required to show a higher level of available funds to meet the maintenance requirements which (taking into account of outstanding course fees) amounted to £20,500 (that is the figure now accepted by the parties). She had around £12,700 in her bank account at the required time.
5. As a result, the Claimant was not awarded the necessary 10 points under the Points Based System (PBS) and so she did not meet the requirement in paragraph 245ZX(d) of the Immigration Rules. The applications of the Claimant's family were also refused as they could not meet the requirements of the Rules as her dependents under paragraphs 319C and 319H respectively of HC 395. The application of the Claimant's husband was also refused on the basis that he had failed to disclose a conviction for driving a motor vehicle with excess alcohol and so his application also fell to be dismissed under the mandatory refusal provision in paragraph 322(1A) of the Rules. That latter matter forms no part of the challenge in these proceedings. The decision letter dated 1 March 2012 indicated that there was no right of appeal against the decisions as the applications had been made on 1 December 2011 at a time when the relevant individual's leave to remain had already expired on 29 November 2011.
6. On 10 March 2012, the Claimant's representatives wrote to the UK Border Agency (UKBA) inviting the Secretary of State to reconsider the Claimant's application (and those of her family) on the basis, inter alia, that the application had been made late because the Claimant was "heavily ill" and the post office was closed on 29 November 2011. That letter, so far as relevant, is as follows:

"Re: Mrs. Sandia Behary, Mauritius, DOB: 21/05/1978, Mr. Naresse Behary, DOB: 12/05/1971, Mauritius, Mr. Ranveer Behary, DOB: 12/10/2007 Mauritius, Miss. Yuvna Pernsing Behary, DOB: 25/11/2003, Mauritius

We have been instructed by the above named clients in connection with their immigration matter in the UK.

As per our client's instructions she was heavily ill on that particular day and has prevented of making her application on time due to reason of closure of post office for special deliver on 29^th November 2011, the day our client's previous stay was expired hence she has posted the application on the following day as per post office's direction as she wanted send her application by guaranteed special delivery service which you have received on 1^st December 2011. This was an accidental occurrence, and we believe that our clients should not be penalised by unintended application of law.

Our client is a genuine international student who has an established presence and eligible for the reduced maintenance level. She herself had sufficient funds in her own account to maintain herself and three dependants amounting more than £3600.00. However, she enclosed her parent's financial documents as an additional document as they volunteered to sponsor her further studies.

We also note, our client's husband has convicted a traffic offence which has been declared in their previous application, however, omitted in completing his application this time by his wife without knowledge. It is clear that this was happened by a mistake as same conviction has been declared in their previous application and had no intention of concealing same in this application

We kindly request you to re-consider our client's application in the light of above information.

Alternatively grant her appeal rights under section 82(1) of the Nationality, Immigration and Asylum Act 2002 in light of above explained truly exceptional circumstances and in consideration of Doctrine of Fairness in the name of Justice.

We look forward to hearing from you with a positive response."

7. In response in a letter dated 21 March 2012, the Secretary of State confirmed her earlier decision of 1 March 2012. The relevant substance of the letter is as follows:

"Thank you for your letter of 10 March 2012 concerning your above named client and her application for leave to remain in the United Kingdom as a Tier 4 (General) Student.

Your client's application was refused with no right of appeal on 01 March 2012 and you have contacted this office to request that the decision in reconsidered.

You state that your client was unable to make her application in time as she was ill and her post office was closed for special delivery on 29 November 2011. Thereafter, she did not post her application until the day after her leave to remain in the UK expired. You state your client has an established presence and is eligible for the reduced maintenance level.

You also state, your client's husband has a conviction for a traffic offence which was declared in their previous application, however, it was omitted in the completing of this application by his wife without his knowledge.

An applicant will have an established presence studying in the UK if they have current entry clearance, leave to enter or leave to remain as a Tier 4 migrant, Student or as a Postgraduate Doctor or Dentist and at the date of application:

has finished a single course that was at least six months long within their last period of entry clearance, leave to enter or leave to remain, or

is applying for continued study on a single course where the applicant has completed at least six months of that course.

An applicant making an out of time application will automatically NOT have an established presence.

Your client's leave to remain expired on 29 November 2011, however, for reasons stated above, her application was not submitted until 01 December 2011. Therefore your client does not have an established presence in the UK and does not qualify for the reduced maintenance level.

Consideration has been given to the reasons as to why your client's application was submitted after the expiry of her leave to remain. You state that she was ill, however, you do not give any more details than this and you have not provided any medical evidence to confirm the seriousness of your client's illness.

You also state that the post office was closed when she wished to send the application by special delivery. It remains your client's responsibility to ensure any applications she wishes to submit to the UK Border Agency are made before the expiry of any period of leave she may have and she should allow sufficient time to complete the process.

The Secretary of State is not satisfied that the reason for your client's application being submitted late are sufficiently compelling or compassionate enough to exercise discretion on this occasion."

8. The letter then goes on to set out again the Secretary of State's position that the Claimant cannot meet the maintenance requirement under the Rules and in respect of the non-disclosure of the conviction of the Claimant's husband and to point out the Claimant has no right of appeal and is liable to be removed.

The Claim

9. On 18 July 2012, the Claimant lodged this application for judicial review challenging the Secretary of State's decisions of 1 March and 21 March 2012. By way of relief the Claimant seeks an order quashing the decisions; an order requiring the Secretary of State to grant the Claimant leave or to reconsider the matter; and a declaration that the Claimant is entitled to leave to remain in the United Kingdom. In summary, the Claimant relied upon three grounds in the Grounds of Application.
10. First, the Secretary of State's decisions of 1 March and 21 March 2012 are unlawful because, in reaching them, she failed to carry out her duty under section 55 of the Borders, Citizenship & Immigration Act 2009 ("BCI Act 2009") to have "regard to the need to safeguard and promote the welfare of children who are in the United Kingdom", namely to take into account the "best interests" of the Claimant's daughter and son.
11. Secondly, the Secretary of State's decisions of 1 March and 21 March 2012 are unlawful as, properly interpreted and applied, the Claimant met the requirements of the Rules because she has "current" leave as a Tier 4 student and thus has an "established presence" studying in the UK.
12. Thirdly, the Secretary of State's decisions of 1 March and 21 March 2012 are unlawful because she failed to exercise her discretion outside the Rules.
13. On 28 September 2012, the Secretary of State filed an acknowledgement of service and summary grounds of defence.
14. On 12 November 2012, Wilkie J extended time for lodging the application and, on a consideration of the papers, granted permission to apply for judicial review on ground 1 only.
15. On 31 July 2013, the Secretary of State wrote to the Claimant's representatives stating that, as s.55 of the BCI Act 2009 had been raised in the judicial review claim, she proposed to issue a supplementary decision letter addressing s.55 of the BCI Act 2009 and, in effect, inviting those representing the Claimant to make any relevant submission by 16 August 2013. No representations were, in fact, made on the Claimant's behalf in response to the Secretary of State's letter of 31 July 2013.
16. On 18 September 2013, the Secretary of State issued a further decision letter in which she considered the application of s.55 of the BCI Act 2009 in relation to the Claimant's two children. I will deal with the content of this letter in some detail shortly. For the present, it suffices to note that the letter concludes that:

"The need to maintain the integrity of the immigration laws outweighs the possible effect on your client and her children that might result from your client and her children having to continue family life outside the United Kingdom."

17. At the hearing, Mr Malik, on behalf of the Claimant maintained the challenge to the Secretary of State's decisions of 1 March and 21 March 2012. In addition, he sought permission to amend the claim so as to challenge the most recent decision taken on 18 September 2013. Ms Chan who represented the Secretary of State, although pointing out that technically the Claimant should pay a fee, did not object to the amendment to the claim. At the hearing, I granted the Claimant permission to amend the claim to challenge also the Secretary of State's decision of 18 September 2013. In relation to that decision Mr Malik submitted that that decision was unlawful even though it purported to take into account the Secretary of State's s.55 duty because it was an inadequate consideration of the "best interests" of the Claimant's children.
18. In addition, Mr Malik sought permission under CPR Part 54.15 to rely on grounds 2 and 3. I indicated at the hearing that I proposed to deal with that application as part of my overall consideration of the claim. Accordingly, I also heard substantive submissions from both Mr Malik and Ms Chan on grounds 2 and 3.
19. I turn now to consider each of the Grounds relied upon by the Claimant.

Ground 1

20. As originally set out in the grounds of application, the Claimant alleges that the Secretary of State acted unlawfully in reaching her decision on 1 March 2012 (as affirmed by her subsequent decision on 21 March 2012) by failing, in reaching those decisions, to carry out her duty under s.55 of the BCI Act 2009 to have regard to the needs to safeguard and promote the welfare of the Claimant's children and, further, to have regard to the guidance issued under s.55 of the BCI Act 2009. Both in his skeleton argument and oral submissions, Mr Malik maintained that as the Claimant's principal position under ground 1. Mr Malik also submitted that the fact that the Secretary of State had carried out her duty under s.55 in the letter of 18 September 2013 did not "cure" the unlawfulness of the earlier decisions which were taken without regard to the s.55 duty.
21. I begin with s.55 of the BCI Act 2009 which is in the following terms:

"55 Duty regarding the welfare of children

(1) The Secretary of State must make arrangements for ensuring that-

(a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and

(b) any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need.

(2) The functions referred to in subsection (1) are-

(a) any function of the Secretary of State in relation to immigration, asylum and nationality;

(b) any function conferred by or by virtue of the Immigration Acts on an immigration officer;

(c) any general customs function of the Secretary of State;

(d) any customs function conferred on a designated customs official.

(3) A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1)."

22. Under s.55 of the BCI Act 2009, the Secretary of State has issued guidance to the UKBA "on making arrangements to safeguard and promote the welfare of the children" entitled "Every Child Matters Change For Children" (November 2009). Section 55 came into force on 2 November 2009.
23. Mr Malik submitted that s.55 applied to decisions by the Secretary of State to refuse an individual leave to remain under the Immigration Rules or in deciding whether to exercise discretion outside the Rules and also in reconsidering a case following an earlier decision. He relied upon the Secretary of State's concession before the Court of Appeal in R(AJ) v SSHD [2011] EWCA Civ 1081 at [15] that the duty under s.55 applied to all immigration, asylum and nationality functions and was not limited to situations where the Secretary of State was making an appealable decision to remove. Mr Malik submitted, therefore, that s.55 applied when the Secretary of State refused the Claimant leave to remain in her decision of 1 March 2012 and also when confirming that decision and deciding not to exercise discretion outside the Rules in her decision of 21 March 2012.
24. Mr Malik also relied upon the decision of this Court in R(TS) v SSHD and Northamptonshire CC [2010] EWHC 2614 (Admin) at [24] where Wyn Williams J in considering the application of s.55 of the BCI Act 2009 stated that:

"The duty is mandatory and one which must be fulfilled prior to the making of the decision in question. The duty requires the decision-maker to embark upon a sufficient and proper decision making process so as to discharge the duty with an open mind. The question in every case in which it is alleged that a decision-maker has failed to have regard to the factor identified in the statute is whether the decision-maker has in substance regard to the factor identified in the statute is whether the decision-maker has in substance had regard to the matter identified. In the written decision produced by the decision-maker he does not have to refer, expressly, to the relevant statutory duty; however the terms of the written decision must be such that it is clear that the substance of the duty was discharged."

25. Mr Malik submitted that the Secretary of State had failed to carry out the duty under s.55 "prior to the making of the decision in question" in respect both of her decision on 1 March and 21 March 2012.
26. Mr Malik referred me to the statutory guidance of November 2009 issued under s.55 of the BCI Act 2009 ("Every Child Matters Change For Children") in particular at para 2.7 which, he submitted, imposed an obligation upon the UKBA to act in accordance with the principles stated therein as follows:

"2.7 The UK Border Agency must also act according to the following principles:

Every child matters even if they are someone subject to immigration control.

In accordance with the UN Convention on the Rights of the Child the best interests of the chid will be a primary consideration (although not necessarily the only consideration) when making decisions affecting children.

Ethnic identity, language, religion, faith, gender and disability are taken into account when working with a child and their family.

Children should be consulted and the wishes and feelings of children taken into account wherever practicable when decisions affecting them are made, even though it will not always be possible to reach decisions with which the child will agree. In instances where parents and carers are present they will have primary responsibility for the children's concerns.

Children should have their applications dealt with in a timely way and that minimises the uncertainty that they may experience."

27. Mr Malik submitted that it was too late for the Secretary of State to consider her duties under s.55 in her decision of 18 September 2013. She had failed to carry out her duty before reaching her earlier decisions and they were as a consequence unlawful.
28. On behalf of the Secretary of State, Ms Chan accepted that the Secretary of State had not considered the best interests of the Claimant's children and s.55 before reaching her decisions on 1 March and 21 March 2012. However, she submitted that the Secretary of State had not acted unlawfully in reaching those decisions because at that stage the Claimant had not raised or relied upon the interests of her children and so the Secretary of State was not under a duty by virtue of s.55 of the 2009 Act to consider their interests. Once the Claimant did raise the interests of her children in the judicial review claim, Ms Chan submitted that the Secretary of State invited further submissions in her letter of 31 July 2013 and, although no submissions were made, properly and lawfully went on to consider her s.55 duty in her decision of 18 September 2013.
29. Ms Chan submitted that, even if, contrary to her submission, the decisions of the Secretary of State taken on 1 March and 21 March 2012 were unlawful because the s.55 duty was engaged, it would be wrong for the Court to grant a discretionary remedy in respect of those decisions given that the Secretary of State had now fully considered her s.55 duty in her decision of 18 September 2013.
30. Section 55 imposes a duty upon the Secretary of State to make arrangements that ensure that in carrying out any function of the Secretary of State regard is had to the need to safeguard and promote the welfare of children who are in the UK (s.55(1) and (2)(a)). In exercising those functions, any person must have regard to the guidance issued by the Secretary of State under s.55 (s.55(3)). It is clear from its wording that the duty imposed by s.55 has wide application in the immigration context applying to "any function of the Secretary of State in relation to immigration, asylum or nationality" (my emphasis).
31. In TS, Wyn Williams J considered the effect of the duty under s.55, read with the 2009 Guidance, to be that in discharging immigration or asylum function concerning children the best interests of the child were a primary consideration.
32. Wyn Williams J said this at [32]:

"It seems to me that the effect of the 2009 guidance is clear. In discharging immigration and/or asylum functions concerning children the best interests of the child will be a primary consideration: it will not be the only consideration but the use of the word primary means that it will always be at least an important consideration. Further, the specific aspects of the UN Convention set out above (Articles 20 and 24) will obviously be important components when the best interests of the child are being considered."

33. Wyn Williams J then went on to consider paragraph 6 of the introduction to the guidance which is in these terms:

"This guidance is issued under s.55(3) and s.55(5) which requires any person exercising immigration, asylum, nationality and customs functions to have regard to the guidance given to them for the purpose by the Secretary of State. This means that they must take this guidance into account and, if they decide to depart from it, have clear reasons for doing so." (emphasis in original).

34. At [34]–[36] Wyn Williams J expressed the effect of the s.55 duty read with the statutory guidance as follows:

"34. In the light of this paragraph it is clear that a decision maker does not need to adhere to the guidance, slavishly, if cogent reasons exist to depart from it. Accordingly, the decision maker may, in an appropriate case, attach less weight to the best interests of the child in question than the guidance suggests is appropriate. He is not bound to regard the best interests of the child as a primary consideration in a particular case. To repeat, however, if a decision maker concludes that the best interests of a child should not be a primary consideration he would explain why.

35. It is to be noted that the statutory guidance uses the phrase "best interests of the child" when describing what should be taken into account by UKBA. That, of course, is not the phrase used in section 55(1) of the Act. However, the guidance provided at paragraphs 2.6 and 2.7 as set out above appears under the general heading "making arrangements to safeguard and promote welfare in the UK Border Agency". It seems to me, therefore, to be clear that the statutory guidance intends that when a decision maker is having regard to the need to safeguard and promote the welfare of a child he is for all practical purposes also have regard to the best interests of the child.

36. In summary, the effect of the statutory guidance is that when a decision maker discharges an immigration and/or asylum function he should regard the need to safeguard and promote the welfare of the child in question as a primary consideration unless there are cogent reasons which justify a different approach. Since the decision maker is duty bound to have regard to the guidance it follows that when discharging his function under section 55(2) of the Act he should regard the need to safeguard and promote the welfare of the child as a primary consideration unless there are cogent reasons to adopt a different approach."

35. In my judgement, those passages (with which I respectfully agree) set out the effect of s.55 and the Guidance where the duty to have regard to the need to safeguard and promote the welfare of children in the course of carrying out an immigration function under s.55 is engaged. The decision maker must carry out that function taking the best interests of any child as a primary consideration unless there are cogent reasons for not doing so. In the immigration area, that duty usually arises in the context of determining whether an individual's right to respect for his/her private and family life, where that individual is a child or a parent, is breached under Article 8 of the European Convention on Human Rights. However the public law obligation under s.55 arises independently of whether Article 8 is relied upon in a particular case (see TS at [55] per Wyn Williams J).
36. The obligation to take into account the best interests of any children as a primary consideration in determining whether an immigration decision breaches Article 8 is set out in the leading decision of the Supreme Court in ZH (Tanzania) v SSHD [2011] UKSC 4; [2011] 2 AC 166. Whilst recognising that the "best interests" of a child must be a "primary consideration", the Supreme Court acknowledged that, in carrying out the proportionality assessment under Article 8, other (public) interests of sufficient strength could outweigh a child's best interests. Baroness Hale of Richmond said at [26]:

"…the best interests of the child must be a primary consideration….This does not mean (as it would do in other context) that identifying those best interests would lead inexplicably to a decision in conformity with those interests. Provided that the Tribunal did not treat any other consideration as inherently more significant that the best interests of the child, it could concluded that the strength of the other considerations outweighed them."

37. In my judgment, the concession made by the Secretary of State in AJ (recorded at [15] of Pill LJ's judgment) is well-founded: namely that the s.55 duty is not confined to situations where the Secretary of State is making an appealable decision to remove an individual but also applies when making a non-appealable decision refusing leave to remain. I have no doubt that, in principle, in deciding whether to grant an individual leave to enter or remain under the Immigration Rules or outside those Rules the Secretary of State is carrying out a function in relation to immigration, asylum or nationality.
38. That does not, however, in my judgement resolve the issue of whether in fact the duty was engaged when the Secretary of State made the two decisions in March 2012 in relation to this Claimant.
39. It seems to me that as a minimum the duty can only arise where the Secretary of State knows (or perhaps ought to know) that the immigration decision may affect children in the UK. Mr Malik accepted as much in his oral submissions. Were it otherwise, Parliament would be requiring the Secretary of State to engage in a wholly futile exercise with no relevant factual basis to trigger the need for the assessment. That cannot have been Parliament's intention in my judgement. In other words, merely to establish that a relevant "function" falling within s.55 is in play, does not necessarily resolve whether the duty is, in fact, triggered.
40. Ms Chan accepted that the Secretary of State was aware of the existence of the Claimant's two children. That must, of course, be correct as the Secretary of State made decisions in relation to them under the Rules as the Claimant's dependents. Nevertheless, she submitted that the s.55 duty was not triggered until the Claimant raised and relied upon her children's interests in this judicial review claim. Ms Chan submitted that prior to that the Claimant had not raised her children's interests as a basis for remaining in the UK. Her initial application as a Tier 4 (Student) was wholly based upon the Immigration Rules and her claim under the points based system. The Claimant's invitation to the Secretary of State to reconsider that decision made in the letter from the Claimant's representatives of 10 March 2012 also did not rely upon her children's interests as a basis for remaining in the UK. Once the Claimant did raise the interests of her children in the judicial review claim, Ms Chan submitted that the Secretary of State invited further submissions in her letter of 31 July 2013 and, although no submissions were made, properly and lawfully went on to consider her s.55 duty in her decision of 18 September 2013.
41. I accept the substance of Ms Chan's submissions in respect of the legality of the two decision letters of the Secretary of State in March 2012.
42. The Claimant's application to which the Secretary of State's decision of 1 March 2012 responded was for leave to remain in the UK wholly based upon the Immigration Rules concerned with Tier 4 Students. That application was accompanied by applications by the Claimant's husband and her two children for leave to remain but those applications were also wholly based upon the relevant Immigration Rules allowing for leave to be granted to dependents of a Points Based Migrant. Nothing was raised before the Secretary of State to suggest that the Claimant was relying upon her children's interest as a basis to remain in the UK. The letter from the Claimant's representative dated 10 March 2012, the relevant parts of which I set out earlier, simply sought a reconsideration of the Secretary of State's decision to refuse the Claimant leave to remain as a Tier 4 Student (and by implication her family as dependents) based solely upon the circumstances in which the Claimant said that had led her to be unable to make her application in time. It was not until the judicial review claim was lodged that the Claimant in the grounds of application raised the interests of her children and s.55 of the BCI Act 2009. Even there, the only factual matters set out are the names, gender and dates of birth of the Claimant's two children.
43. Thus, when the Secretary of State made her decisions on 1 March and 21 March 2012, the Claimant was not relying upon her child's interests as a basis upon which she (and indeed they) should be granted leave to remain in the UK. Although the Secretary of State was aware that the Claimant had two children, in the absence of any (explicit or implicit) reliance upon their interests as a basis for remaining in the UK, I do not accept that s.55 imposed a duty upon the Secretary of State to consider their interests and to speculate on whether those interests would be promoted or harmed by refusing the Claimant leave under the Immigration Rules or outside the Immigration Rules as a student.
44. It is not necessary for me to decide this but it might have been different if the Claimant had made, what Ms Chan in her submissions, termed, "an open ended" application under Art 8 of the ECHR to remain in the UK. Provided the Secretary of State was aware of the existence of the children, such an application might well be said to raise, if not explicitly, implicitly the interest of the children as a basis for remaining in the UK.
45. The position in this case can be contrasted with that in both AJ and TS where the Secretary of State was aware that her decision affected a child and that child's interests were relied upon. In AJ submissions and evidence concerning the effect of a decision to refuse a child's parent leave to remain under Article 8 of the ECHR had been sent to the Secretary of State (see [18] of the judgement). In TS, the Claimant was himself a child who sought to resist his removal to Belgium under the Dublin II Regulation. Consequently, in both of those cases the s.55 duty was triggered either discreetly (TS) or as part of the assessment of proportionality under Article 8 (AJ), and the Secretary of State had a duty to take into account as a primary consideration the best interests of the relevant child.
46. I do not accept Mr Malik's submission that this approach to the triggering of the s.55 duty is plainly inconsistent with the language of s.55. It cannot, in my judgement, have been Parliament's intention to impose upon the Secretary of State a duty to consider the best interests of a child where those interests are not expressly or by implication relied upon or raised by an application to remain the UK.
47. For these reasons, the Secretary of State did not act unlawfully in refusing the appellant leave to remain on 1 March and 21 March 2012 by failing to comply with her duty under s.55 of the BCI Act 2009.
48. I turn now to the supplementary decision made by the Secretary of State on 18 September 2013. As I have already indicated, during the course of the hearing I granted Mr Malik permission to amend the claim so as to challenge this decision in addition to the earlier March 2012 decisions of the Secretary of State. That decision arose in the following circumstances. Following the grant of permission by Wilkie J on 12 November 2012, the Secretary of State wrote to the Claimant's representatives in the following terms:

"As you will be aware, your client asserts in this case that my client's decision of 1 March 2012 was unlawful for a failure to consider s.55 of the Borders, Citizenship and Immigration Act 2009.

Please note that on the particular facts of this case, including the fact that your client has raised the issue of s.55 within the context of the judicial review claim, my client has decided to issue a supplementary decision letter which addresses s.55 of the 2009 Act. My client proposes to make the decision based on the information that she has before her on 16 August 2013."

49. No further submissions were made in response to that letter. The Secretary of State's letter of 18 September 2013 dealt with s.55 of the BCI Act 2009 in some detail running to three pages of closely typed script. Having considered the circumstances of the Claimant's children, including their ages, length of time in the UK, their nationality and ethnic background and their cultural and linguistic links with Mauritius and the impact, if any, upon their education of removal, the letter continues:

"The Supreme Court judgment of ZH (Tanzania) v SSHD [2011] UKSC 4 has also been considered with regards to your client's circumstances. In ZH (Tanzania) the Court determined that in making proportionality assessments under Article 8 the best interests of the child must be treated as a primary consideration although this does not mean that their interest must be treated as the paramount consideration.

In the case of ZH (Tanzania) the children were British citizens, the Court was clearly concerned with the rights and benefits that are accorded to citizens, being lost in cases where they would be removed to another country. Consequently, when considering the question of proportionality, a child's British citizenship is a weighty factor in favour of allowing a child to remain living in this country. The children also faced being separated from their British father who would not leave the UK due to illness. However in this case your client's children are not British citizens, and, as stated, have been in the United Kingdom in a temporary category. They will also remain with both of their parents as a family unit. Your clients should have been and were aware of their temporary status in the United Kingdom and what effect that temporary status would have on them and their children should they cease to meet the requirements of the Immigration Rules."

50. The letter then continues by citing the Upper Tribunal's decision in E-A:

"The case of E-A (Article 8 – best interests of child) Nigeria [2011] UKUT 00315 (IAC) also set out that the correct starting point in considering the welfare and best interests of a young child would be that it is in the best interests of a child to live with and be brought up by his or her parents, subject to any very strong contra-indication. Where the welfare of the child is best served by living with, and to be brought up by his or her parents, then the child's removal with his parent does not involve any separation of family life.

It was also found that those who have their families with them during a period of study in the United Kingdom must do so in the light of the expectation of return.

Paragraph 46 of the Determination and Reasons in the case of E-A (Nigeria) states as follows:

"Equally we do not conclude that the fact that the children have lived in the UK all or most of their lives and are being expected to move to a country they do not yet know, makes that move disproportionate. There must be individual consideration and assessment of best interests in each and every case. By contrast with ZH (Tanzania) the move to Nigeria from the UK does not involve separation from a carer or the country of nationality. These decisions do not interfere with the enjoyment of family life on the part of any of the appellants.""

51. Having cited E-A, the following conclusion is reached:

"In your client's case while the children have lived in the United Kingdom for all or most of their lives, such circumstances were considered in E-A (Nigeria) where it was still found that the children could return to Nigeria and that action would not be disproportionate. Your client's children would be returning to Mauritius with both their parents so there would be no interference with family life.

The Secretary of State has considered all the factors detailed above, ethnic identity, language, relationships, education and faith, and the fact that the leave granted was temporary and have concluded that the decision made in respect of the parents' application should remain. With regard to the children this will mean leaving with parents and the family staying together. There will be some disruption but this is not likely to be long term and both children are considered young enough to adapt to living in Mauritius.

The duty to have regard to the need to safeguard and promote the welfare of children in accordance with s.55 of the 2009 Act requires the UK Border Agency to consider the effect on any children of a decision to refuse leave, or remove, against the need to maintain the integrity of the immigration control. The aim is always to carry out enforcement of the Immigration Rules with the minimum possible interference with a family's private life, and in particular to enable a family to maintain continuity of care and development of the children in ways that are compatible with the immigration laws. In the particular circumstances of your client's case, it has been concluded that the need to maintain the integrity of the immigration laws outweighs the possible effect on your client and her children that might result from your client and her children having to continue family life outside the United Kingdom."

52. Mr Malik submitted that the Secretary of State had been wrong to rely upon the Upper Tribunal's decision in E-A in the light of the more recent decision of Azimi-Moayed. He relied upon paragraphs (1)(iii) and (iv) of the head note in Azimi-Moayed and submitted that the Secretary of State had failed to grapple with the fact that one of the Claimant's children has been in the UK for more than 7 years and her own policies were to grant leave to families with children who had been in the UK for at least 7 years.
53. Ms Chan submitted that the Secretary of State had properly and lawfully considered the interests of the Claimant's children in her decision of 18 September 2013. She submitted that the Secretary of State had, in applying E-A, applied the appropriate approach in assessing the best interests of the children and the subsequent decision in Azimi-Moayed did not replace E-A but was merely a reiteration of earlier principles summarised in E-A itself.
54. I am unable to accept Mr Malik's submissions that the Secretary of State's consideration of the best interests of the Claimant's two children in the letter of 18 September 2013 was unlawful.
55. First, the Secretary of State had very limited information about the Claimant's children. Apart from their names, their dates of birth and that the younger child had been born in the UK in 2007, the Secretary of State had been provided with no other information about the Claimant's children. Mr Malik raised the possibility that the Secretary of State had a duty to seek out further information and, on the basis of paragraph 2.7 of the guidance (which I set out above), to consult the wishes and feelings of the children. He referred me to the decision of this Court in R (Tinizaray) v SSHD [2011] EWHC 1850 (Admin) in support of his submission. Mr Malik did not rely upon any specific passage in the judgement. I do not consider that that decision can assist the Claimant. To the extent the Court in Tinizaray contemplates placing a wide ranging duty of enquiry upon a decision maker prior to reaching a decision on a child's best interests, the case has to be seen in the light of what was said in SS (Nigeria) v SSHD [2013] EWCA Civ 550. There, Laws LJ (with whom Black LJ and Mann J agreed) stated at [55]:

"The decision in Tinizaray should not be regarded as establishing anything in the nature of general principle".

56. Further, at [62] Mann J stated in relation to a Tribunal's obligations:

"In this appeal Counsel for the appellant placed considerable emphasis on the need for the Tribunal to satisfy itself as to the interests of the child in such a way as suggested an inquisitorial procedure. I agree with Laws LJ that the circumstances in which the Tribunal will require further enquiries to be made, or evidence to be obtained, are likely to be extremely rare. In the vast majority of cases the Tribunal will expect the relevant interests of the child to be drawn to the attention of the decision-maker by the individual concerned. The decision-maker would then make such additional enquiries as might appear to him or her to be appropriate. The scope for the Tribunal to require, much less indulge in, further enquiries of its own seems to me to be extremely limited, almost to the extent that I find it hard to imagine when, or how, it could do so."

57. Although Mann J was considering the obligation, if any, of the Tribunal to make enquiries, the point is, in my view, of more general import. Here, the Secretary of State invited the Claimant to put forward any matters relevant to her children's best interests and she did not do so. The Secretary of State was required to do no more. I see nothing irrational or otherwise unlawful in the Secretary of State proceeding to make a decision pursuant to s.55 on the basis of the evidence and material (such as it was) of which she was aware.
58. Secondly, the Secretary of State took into account all information that was available to her. She noted that the children were respectively almost 9 and 5 years old. The elder child had been in the UK for 8 years and 4 months and the younger child has been in the UK for some 5 years since his birth. The Secretary of State noted that both children had Mauritian national parents and that they were of Mauritian nationality and ethnicity. Neither child was a British citizen. Further the Judge noted that Mauritius was a multi-lingual country where, amongst other languages, English was spoken.
59. As regards the children's education, the Secretary of State noted that the Claimant's elder child had likely been in education since September 2008 that is 4 years at infant school and then in junior school. The Secretary of State accepted that the elder child would have formed relationships with other children at school and possibly during out of school or sporting activities. The Secretary of State noted that in her view the elder child would be able to establish new attachments and relationships.
60. As regards the Claimant's younger child, the Secretary of State noted that he was likely to have attended school for one year (with the possibility of a nursery place prior to this) and that given his age, his ties with his parents and older sister were likely to be stronger than those formed in school and nursery.
61. The Secretary of State noted that there was no evidence that the children would not be able to access and resume their education in Mauritius. The family would return as a unit and the children could be expected to adapt to life if they were together and their welfare would not be placed at risk. The Secretary of State noted that English is generally accepted as the official language of Mauritius and is the language of instruction in many schools.
62. The consideration was undoubtedly a full one on the limited information available to the Secretary of State. The reality is, of course, that the Claimant presented the Secretary of State with no evidence that the children could not adapt to life in Mauritius or that their educational development would in any way be harmed if they returned there. In my judgment, having taken all these matters into account, the Secretary of State was entitled to find that:

"There will be some disruption but this is not likely to be long term and both children are considered young enough to adapt back to living in Mauritius."

63. Having taken into account the nature of the temporary leave granted to the Claimant as student and the effect that moving to Mauritius would have on the children, the Secretary of State concluded, taking into account her s.55 duty, that:

"In the particular circumstances of your client's case, it has been concluded that the need to maintain the integrity of the immigration laws outweighs the possible effect on your client and her children that might result from you client and her children having to continue family life outside the United Kingdom."

64. I see no basis for finding that conclusion to be irrational, perverse or otherwise unsustainable in law. The Secretary of State fully took into account the best interests of the Claimant's children and, using the language of Article 8.2 of the ECHR, found that any impact upon them was outweighed by the legitimate aim of effective immigration control.
65. Finally, I do not accept Mr Malik's submission that the Secretary of State misdirected herself in applying passages from the Upper Tribunal's determination in E-A. Nothing said by the Upper Tribunal in the subsequent decision of Azimi-Moayed departed from what was said in E-A. Indeed, the Chamber President (Blake J) specifically stated in Azimi-Moayed, in setting out the "principles" relied upon by Mr Malik at paragraph (1)(iii) and (iv) of the head note, that those principles were identified in the existing case law of the Upper Tribunal (see [13]). In her decision letter citing E-A, the Secretary of State stated that the best interests of a young child would be to live with and be brought up by his parents. That statement is as a general proposition, perhaps, self-evident. It was stated by the Upper Tribunal in E-A (at [35]) and repeated in Azimi-Moayed (at [13(i)]). The Secretary of State then went on to set out [46] of the Upper Tribunal's determination in E-A that:

"Equally we do not conclude that the fact that the children have lived in the UK all or most of their lives and are being expected to move to a country where they do not yet know, make that move disproportionate. There must be individual consideration and assessment of the best interests in each and every case. By contrast, with ZH (Tanzania), the move to Nigeria from the UK does not involved separation from a carer or a country of nationality. These decisions do not interfere with the enjoyment of family life on the parts of any of the appellants."

66. In E-A, the Upper Tribunal considered the effect of a "period of substantial residence" by a child at [39]:

"Absent other factors, the reason why a period of substantial residence as a child may become a weighty consideration in the balance of competing considerations is that in the course of such time roots are put down, personal identities developed, friendships are formed and links are made with the community outside the family unit. The degree to which these elements of private life are forged and therefore the weight to be given to the passage of time will depend upon the facts in each case."

67. In E-A the two children had been in the UK for 5 and 4 years respectively and the elder child had just begun primary school whilst the younger child had just begun nursery school. At [40]-[41] the Upper Tribunal considered the impact of removal upon their "private life" in the UK as follows:

"40. In the cases of these children we conclude that whilst they have been in the UK for a considerable period of time, the nature and degree of private life that they have forged is such that it is still a very personal, intra-family nature in the main, with the focus on the home and family, although they have begun to take their first tentative steps toward socialisation and the world outside the family. They have just begun primary and nursery school respectively. The letters from their schools do no more than confirm that they have been attending since September 2009 and there is no evidence to suggest that either has any particular difficulty, special educational needs, special ability, or particular dependency on any provision made by their schools. Nor is it said that there are any health problems of any kind. They are also attending Sunday school classes at church. It is not clear for how long they have been doing that, but it is difficult to see that it can have been for long given their young ages.

41. There is no evidence to show that the second and third appellants or either of them has as yet formed any deep, strong friendships outside the family and given their young ages it is not to be expected that this would be the case. During the period of residence from birth to the age of about four, the child will be primarily focused on self and the caring parents or guardian. Long residence after this age is likely to have greater impact on the well being of the child."

68. In Azimi-Moayed the Upper Tribunal returned to the issue of the likely nature of any private life formed by a young child. At [13(iii)]-[13(iv)] the Upper Tribunal said this:

(iii) Lengthy resident in a country other than the state of origin can lead to development of social cultural and educational ties that it would be inappropriate to disrupt, in the absence of compelling reason to the contrary. What amounts to lengthy residence is not clear cut but past and present policies have identified seven years as a relevant period.

(iv) Apart from the terms of published policies and rules, the Tribunal notes that seven years from age four is likely to be more significant to a child that the first seven years of life. Very young children are focussed on their parents rather than their peers and are adaptable."

69. In my judgment, the Upper Tribunal in Azimi-Moayed has done nothing more than give (as a generalisation) the indication that seven years residence is significant in assessing a child's best interests and that its significance is likely to be greater if it arises after the age of four than if it is the first seven years of a child's life. The point being that the older a child is, the more likely it will form social networks with peers and others. The younger a child is, the more likely that the child's focus is upon their parents and the family unit rather than their peers. The impact upon a child's private life is, as a consequence, likely to be greater in the former situation than the latter. That, in my judgement is wholly consistent with the approach in E-A which I have set out above especially at [41] of the Upper Tribunal's determination. Both the length of residence in the UK and the age period over which that residence spans will be important in determining what, if any, private life a child has formed in the UK and what, if any, interference with that private will result from an immigration decision that leads to the child having to leave the UK. There is, however, no bright line, in particular when seven years residence is established. That is clear from the determinations in both E-A and Azimi-Moayed.
70. Nor do I accept Mr Malik's submission that the Secretary of State's policy as set out in the Immigration Rules elevates a period of seven years' residence by a child to being a "trump card". No particular examples were drawn to my attention. The current Immigration Rules contain a number of examples but they do not support Mr Malik's submission. In the context of deportation, a parent who seeks to resist deportation on the basis that he has a "genuine and subsisting parental relationship" with a child must establish first, that the child has lived continuously in the UK for at least seven years but also that it would not be reasonable to expect the child to leave the UK. Likewise, in Appendix FM, exception EX applies where an applicant has a "genuine and subsisting parental relationship" with a child who has lived continuously in the UK for at least seven years but also it must be shown that it would not be reasonable to expect the child to leave the UK. In other words, the Secretary of State's policies as set out in the Immigration Rules recognise the significance of a child living in the UK for seven years but do not regard that as a "trump card" requiring also that it would not be reasonable to expect the child to leave the UK. In itself, that latter requirement would entail a consideration of the child's "best interests".
71. In my judgement, the Secretary of State's decision of 18 September 2013 was lawful. The Secretary of State fully considered the interests of the Claimant's two children including the length of residence in the UK. In the case of the younger child that was five years and in the case of the older child (aged nine) it was eight years and four months. The Claimant did not put forward any evidence in relation to the children's education but, perhaps entirely appropriately, the Secretary of State considered the children's educational progress that would be expected for children of their respective ages. In my judgement, there is nothing irrational in the Secretary of State's conclusion that, despite both children having spent most or all (in the case of the younger child) of their lives in the UK and taking into account their presumed educational progress through school, there was no basis for granting the Claimant and her family leave to remain in the UK in the absence of any evidence to suggest that the children's interests would be threatened or harmed by their return to Mauritius.
72. For these reasons, I reject Ground 1 as a basis for challenging the decisions of 1 March and 21 March 2012 and 18 September 2013.
73. I would add this. If, contrary to the view I have expressed above, the decisions of 1 March and 21 March 2012 were unlawful, I would, in any event, as a matter of discretion refuse to grant any relief in respect of those decisions in the light of the Secretary of State's full (and lawful) consideration of her s.55 duty in the letter of 18 September 2013.

Ground 2

74. Ground 2 relates to the substantive provisions of the Immigration Rules pertaining to Tier 4 (General) Student applications. So far as relevant, the Rules provide as follows.
75. Paragraph 245ZX of the Immigration Rules provides as follows:

"245ZX To qualify for leave to remain as a Tier 4 (General) Student under this rule, an applicant must meet the requirements listed below. If the applicant meets these requirements, leave to remain will be granted. If the applicant does not meet these requirements, the applicant will be refused.

Requirements:

….

(d) the applicant must have a minimum of 10 points under paragraphs 10 to 14 of Appendix C."

76. When one turns to Appendix C, paragraph 10 provides that:

"10. A Tier 4 (General) Student must score 10 points for funds."

77. Paragraph 11 then goes on to state when those 10 points will be awarded. So far as relevant it provides that:

"If studying in outer London and elsewhere in the United Kingdom

(i) where the applicant does not have an established presence studying in the United Kingdom, the applicant must have funds amounting to the full course fees for the first academic year of the course, or for the entire course if it is less than a year long, plus £800 for each month of the course up to maximum of nine months.

(ii) where the applicant has an established presence studying in the United Kingdom, the applicant must have funds amounting to the course fees required either for the remaining academic year if the applicant is applying part-way through, or for the next academic year if the applicant will continue or commence a new course at the start of the next academic year, or for the entire course if it is less than a year long, plus £800 for each month of the course up to a maximum of two months."

78. Those provisions distinguish between an applicant who "has an established presence studying in the United Kingdom" and one who does not. The funds required for the former are less than for the latter.
79. "Established presence" is defined in paragraph 14 of Appendix C of the Rules as follows:

"An applicant will have an established presence studying in the UK if the applicant has current entry clearance, leave to enter or leave to remain as a Tier 4 Migrant, Student or as a Postgraduate doctor or dentist and at the date of application:

(i) has finished a single course that was at least 6 months long within the applicant's last period of entry clearance, leave to enter or leave to remain, or

(ii) is applying for continued study on a single course where the applicant has completed at least 6 months of that course."

80. In her decision letter dated 1 March 2012, the Secretary of State concluded that the Claimant did not have an "established presence" in the UK as the Claimant did not have "current entry clearance, leave to enter or leave to remain as a Tier 4 Migrant, Student" because at the date of her application (which the Secretary of State took to be 1 December 2011 when the Claimant's application was received), the Claimant's leave had already expired on 29 November 2011.
81. It was common ground before me that if the Secretary of State was correct that the Claimant did not have an "established presence" in the UK then the Claimant would require funds amounting to £20,500 whereas if she did have an "established presence" then she would only require £5,900. At the relevant times, the Claimant had around £12,700 in her bank and so could only succeed if she had an "established presence".
82. It was also common ground before me that the date of the Claimant's application was not, in fact, 1 December 2011 when her application was received by the Secretary of State but was, rather, by virtue of paragraph 34G of the Rules the "date of posting" namely 30 November 2011. In fact, of course, both dates fall after the Claimant's leave expired on 29 November 2011.
83. Mr Malik made two principal submissions that the Secretary of State's decision that the Claimant did not have an "established presence" was wrong in law. The first relied upon the principle de minimis non curat lex and the second relied upon the proper construction and meaning of the word "current" in the phrase "current entry clearance, leave to enter or leave to remain" in paragraph 14 of Appendix C.

The De Minimis Argument

84. Mr Malik submitted that the Claimant's application was made one day out of time, namely on 1 December 2011. He submitted that, applying the principle de minimis non curat lex ("the law is not concerned with very small things") that the fact that the application was made one day after the expiry of the Claimant's leave on 29 November 2011 should be disregarded. Her application was, as a consequence, made 'in time' and her leave continued by virtue of section 3C of the Immigration Act 1971. He submitted that the Claimant, therefore, had "current…leave to remain as a Tier 4 Migrant, Student" and so had an "established presence" in the UK and met the maintenance requirement in Appendix C.
85. In support of his submission, Mr Malik relied upon two cases in the Court of Appeal. The first is MD (Jamaica) and GE (Jamaica) v SSHD [2010] EWCA Civ 213 (hereafter "MD").
86. In MD, the Court of Appeal was concerned with the (then) long residence rule found in paras 276A-D of the Immigration Rules. So far as relevant, para 276B(i)(a) provided for the grant of "indefinite leave to remain" where an individual could demonstrate "at least 10 years continuous lawful residence in the United Kingdom". Paragraph 276A stated, inter alia, that "continuous residence" meant "residence in the United Kingdom for an unbroken period". Paragraph 276A(b) went on to define "lawful residence" to mean "continuous residence pursuant to …existing leave to enter or remain".
87. MD had been in the UK for a period of about 12 years. However, for two periods of time – one of about 3 or 4 weeks and the other of about 4 months - during that period she had been an overstayer. MD had become an overstayer on both occasions because she had made her applications (which were subsequently successful) 2 and 7 weeks after her previous periods of leave had expired. GE had also been in the UK for over 10 years but for a period of about 10 weeks he had been here as an overstayer because he had made a late application (which was ultimately successful) 38 days after his previous leave expired.
88. A number of arguments were put to the Court of Appeal to seek to persuade it that short periods of unlawful residence should be ignored for the purposes of paragraph 276B. The Court of Appeal rejected those arguments put to overcome the effect of the "plain and ordinary meaning" of the Rule, namely that a period of "continuous lawful residence" for at least 10 years could not be shown if that period was broken by periods of unlawful residence. It is not necessary to set out all those arguments here. One argument, however, is important and the response by the Court of Appeal to it is relied upon by Mr Malik. The submission is recorded at [21] of the judgement of Dyson LJ as follows:

"…the strict interpretation [so that short periods of unlawful residence would not be ignored] leads to absurd and unfair results. Thus, an applicant who is one day late in submitting his application becomes an overstayer and loses the benefit of the continuous long residence rule even if he has been in continuous residence in the UK for a period well in excess of 10 years and has been a model resident. That cannot have been intended by the draftsman of the rule. The policy of the rule is not to exclude a person who has been in the UK for 10 years and whose presence here cannot sensibly be described as unlawful."

89. In response to that submission Dyson LJ said this (at [27]):

"…I see nothing absurd in giving the rule its plain and ordinary meaning. The case of the applicant who submits his application one day late is catered for by an application of the principle de minimis non curat lex (the law is not concerned with very small things)."

90. On the facts, Dyson LJ (with whom Longmore LJ and Sir Mark Potter agreed) concluded that MD and GE could not rely upon the de minimis principle.
91. In this case, Mr Malik relied upon [27] of Dyson LJ's judgement. He submitted that the situation contemplated by Dyson LJ is precisely what happened in this case. The Claimant submitted her application one day late and that single day should be ignored and her application was as a result made in time.
92. Mr Malik also relied upon the decision of the Court of Appeal in Miah and Others v SSHD [2012] EWCA Civ 261. Mr Malik submitted that the Court of Appeal had disapproved of the "near-miss" principle in Article 8 cases but had distinguished that from the de minimis principle. He relied upon the words of Stanley Burnton LJ (with whom Maurice Kay and Lewison LJ agreed) at [12] where he said this:

"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."

93. Mr Malik submitted that in Miah it could not be shown that the failure to comply with the Rules was de minimis because Mr Miah was around two months short of the required five years period of residence with a work permit in order to meet the requirements of the relevant Immigration Rule. Mr Malik submitted that the de minimis principle applied in this case as the Claimant's application was only one day out of time. He submitted, in effect, that if the principle did not apply here then it could never apply as there could never be a gap of less than one day.
94. First, I accept that the de minimis principle can be applied in the application of both statutory provisions and the Immigration Rules. That is, of course, recognised both by Dyson LJ in MD at [27] and by Stanley Burnton LJ in Miah at [12]. I did not understand Ms Chan to submit to the contrary and no contrary authority was drawn to my attention. Secondly, I also accept that the Court of Appeal contemplated its potential application where an application for leave is made (on the face of it) out of time, i.e. when an individual's existing leave has expired.
95. I do not accept, however, Mr Malik's submission that the de minimis principle can come to the aid of the Claimant in this case. The context of what was being said in MD and Miah is important; indeed crucial in my judgment.
96. First, in both MD and Miah, the Court of Appeal was concerned with assessing whether a period of historic residence met the requirements of the Rules; 10 years lawful residence (MD) and 5 years residence as a work permit holder (Miah). Seen in the context of a period of 10 years, the effect of submitting an application one day late may appear trivial and have a disproportionate impact upon an individual's claim to have been in the UK for 10 continuous years lawfully. The actual period of unlawful presence will, of course, depend not only on how long out of time the application is made but, more significantly, how long it takes the Secretary of State to reach a decision to grant that individual leave. An application made one day late might well conceivably lead to weeks, if not months, of unlawful presence. (In Miah, of course, the argument based upon de minimis could only focus upon disregarding the missing 2 months of the required 5 years lawful residence with a work permit.) The 'triviality' recognised by Dyson LJ remains, however, the one day's delay. The application of the principle produces a just result when seen in the light of the total period of residence and the fact that the individual has been granted leave following the out of time application.
97. That, in my judgement, is quite different from the situation in this case. Here, there is no possibility of seeing the 'triviality' of the delay in making the application against a claim to have established a lengthy period of residence, for example as lawful residence or as a work permit holder. Here, the issue is whether the Claimant made an application on a certain date when she palpably did not.
98. Secondly, it seems to me that the question of when an individual makes an application for leave is a fundamental part of the administration of immigration control which cries out for a "bright line" rule. It is often crucial both to the individual (and indeed others dealing with that individual) and the State itself to know when an individual has applied for leave. There should be as little uncertainty as possible. There may be a range of consequences that may flow to an individual which may depend upon knowing when an application was made. This case provides one illustration. Others would include whether an application for further leave was made before leave expires so that an appeal to the First-tier Tribunal may be brought if unsuccessful under the Nationality, Immigration and Asylum Act 2002 (s.82(2)(d)); and whether the individual has become an overstayer (which may have criminal consequences) or whether leave is continued by virtue of section 3C of the Immigration Act 1971. The Rules create just such a "bright line" rule. In paragraph 34G the Immigration Rules clearly state the date on which an application or claim is made, for example the date of posting when an application is sent by post; the date it is submitted in person or the date an online application is submitted.
99. Despite Mr Malik's submission that this case was only concerned with a delay of one day, the spectre of slightly longer delays – whether two or three days or, perhaps a week – remains, casting a shadow of uncertainty over the legality of an individual's presence in the UK in only slightly differing circumstances. In my judgement, the need for certainty as to when an individual makes an application for leave strongly tells against the application of the de minimis principle in this case.
100. A "bright line" rule may, however, produce harsh or unfair consequences. In MD, it was precisely in response to a submission that a one-day delay in submitting an application out of time would produce an "absurd or unfair" result that, in my judgment, led Dyson LJ to mitigate that potential harshness in [27] by reference to the de minimis principle.
101. Of course, there may be other ways of mitigating the harshness of a rule's application. Indeed in the situation dealt with in MD, there was a long residence concession that dealt with the mitigation of some delays in making applications such that they were out of time and so left an individual with periods of unlawful presence in the UK. Here, there is a clearly defined route by which periods of delay (such as arose in this case) could be mitigated through the Secretary of State exercising discretion outside the Rules, in appropriate cases, to ignore the delay in making an application. In my judgement, the importance of certainty and the need for a "bright line" rule in determining whether a person's application is now (rather than historically as in MD and Miah) in time does not require the application of the de minimis principle. Discretion can be utilised to overcome 'trivialities' giving rise to absurd or unfair results.
102. In other words, the "bright line" rule may bend but not because of the de minimis principle but because of the force of an individual's personal circumstances which justifies a departure from the Rules. The importance of certainty is not undermined by the Secretary of State's "residual discretion" to act outside the Rules. Indeed, as part of her argument, the Claimant relies on that discretion in this case. In this case, the Claimant invited the Secretary of State to act outside the Rules in the letter of 10 March 2012. That letter from the Claimant's representatives did not argue that the Claimant's application was in time but rather that that fact should be ignored by the Secretary of State exercising discretion outside the Rules. The Secretary of State refused so to do in her decision letter of 21 March 2012. I deal with the Claimant's challenge to that decision below. In my judgment, the de minimis principle has no application to the Claimant.
103. Consequently I reject Mr Malik's submission that to decide against the Claimant on this point would be a failure to follow the ratio decidendi of MD which is binding upon the Administrative Court. He relied upon R (Nirula) v First-tier Tribunal (Asylum and Immigration Chamber), [2012] EWCA Civ 1436. In MD, the Court of Appeal was concerned with the potential application of the de minimis principle in a different context and what was said by Dyson LJ at [27] was said in that context. Whilst, of course, I accept the considered views of the Court of Appeal, for the reasons I have given, what was said at [27] of Dyson LJ's judgment does not apply to this case.
104. I would add one further point. I am far from persuaded that, even if applicable in principle, the Claimant could rely on the de minimis principle in this case. I do not accept that, if it applies, it must apply to a delay of one day as there is no lesser period of time in which delay in making an application can be measured. In my judgment that conflates the smallest period of time in which any delay up to 24 hours is counted with the act of non-compliance with the Rules which is said to be 'trivial'. The latter could be counted in 'seconds', 'minutes' or 'hours' or 'days' or longer. It is by no means clear that in applying the de minimis principle a delay of say 23 hours should be treated in the same way as a delay of 5 minutes. Whilst both will result in the application being submitted one day out of time, the relative triviality of the failure to comply with the Rules in the two instances might (and I say no more than that) call for a different outcome when applying the de minimis principle. All that is known in this case is that the Claimant made her application on 30 November 2011.
105. Consequently, I reject the de minimis argument relied on in Ground 2.

The Construction Argument

106. Mr Malik made an additional submission that, in any event, the Claimant could demonstrate that she met the requirement in para 14 of Appendix C. He submitted that she had "current" leave even though her leave had expired on 29 November 2011 before she made her application. He submitted that the word "current" was ambiguous. It could mean "present" or "existing" leave or it could, on the other hand, mean "recent" or "latest". Mr Malik submitted that the latter interpretation should be preferred applying a flexible construction in keeping with the purpose of the Rules.
107. Mr Malik relied upon a UK Border Agency document entitled "Adult Students – Tier 4 (General)" dated 8 December 2011. There, under the heading, "Do you have an 'established presence'?" It is stated that:

"Additionally, their current or most recent permission to stay must have been:

under Tier 4; or

as a student under the former Immigration Rules that were in force until 30 March 2009; or

as a postgraduate doctor or dentist….."

108. Initially, Mr Malik submitted that this document assisted to establish that the Claimant could succeed on the basis that either her "current" or her "most recent" leave must be as a Tier 4 Student. As I understood Mr Malik's submission as it developed, he accepted that there was no difference between a person's "current" leave and his or her "most recent" leave. They are synonymous.
109. In Mahad and Others v Entry Clearance Officer [2009] UKSC 16; [2010] 1 WLR 48, the Supreme Court set out the proper approach to construing and interpreting the Immigration Rules. Lord Brown of Eaton-under-Heywood, delivering the leading judgement, stated at [10]:

"The Rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State's administrative policy."

110. Lord Brown cited his earlier view in MO (Nigeria) v SSHD [2009] 1 WLR 230 at [33] that:

"The question is what the Secretary of State intended. The Rules are her rules." (Lord Brown's emphasis).

111. Having stated that, Lord Brown continued:

"That intention is to be discerned objectively from the language used, not divined by reference to supposed policy considerations. Still less is the Secretary of State's intention to be discovered from the Immigration Directorate's Instructions ("IDIs") issued intermittently to guide Immigration Officers in their application of the Rules."

112. In my judgement the "natural and ordinary" meaning of the word "current" in the phrase "current entry clearance, leave to enter or leave to remain" is plain. It means "existing" or "present" entry clearance or leave. It is to be contrasted with past leave or leave previously granted to an individual but which has expired or come to an end. The provision also requires that the individual "has" that leave suggesting very strongly that it is looking to the leave that the individual presently possesses and enjoys. It does not naturally allow for leave that an individual "had" but no longer enjoys. The sense of the rule is clear and unambiguously expressed.
113. There are obvious difficulties with Mr Malik's submission relying on the wording of the IDI. First, it offends Lord Brown's injunction in Mahad against utilising the Secretary of State's IDIs as an interpretative tool for the Immigration Rules. For that reason alone, it must be rejected. Secondly, Mr Malik's submission entails "current" leave being synonymous with "most recent" leave and thereby including "past" (and not existing) leave. That construction is impossible to reconcile with the plain and ordinary meaning of the word "current" and the requirement that the individual "has" that leave rather than he or she "had" (in the past) the relevant leave. The IDI simply cannot defeat that meaning.
114. Mr Malik submitted that the policy underlying the rule was that the lower maintenance level, based upon an individual having an "established presence", applied to all those who were in the UK and continuing their studies. He submitted that it would be wrong to insist that the Claimant should meet the higher maintenance level which was normally applicable for first time applications.
115. I see no basis for inferring that is the underlying policy enshrined in paragraph 14 such as to subvert the natural and ordinary meaning of the word "current". The policy cannot be sustained by the plain wording of paragraph 14. The difference between a student who has an "established presence" and one who does not is not simply expressed in terms of a person who has studied in the UK and one who is making a first time application. "Established presence" is not necessarily demonstrated merely because a student has already been studying in the UK and seeks further leave under the Tier 4 provisions. Irrespective of the meaning of the word "current", the rules require that to have an "established presence" an individual must already have completed a course or part of a continuing course for at least 6 months. Not every existing student, therefore, has an "established presence". In my judgement, the underlying policy or scheme of the Rules which in Mr Malik's submission dictates that the lower maintenance requirement should apply to all existing students in the UK (by contrast to first applicants) is simply not borne out by the plain wording of paragraph 14. There is no underlying policy which, therefore, necessarily requires that the Claimant be treated differently from a first time student and like existing students (i.e. including those with existing leave). No such policy distinction underlying the rule has been demonstrated.
116. For these reasons, the Secretary of State did not fall into error in concluding in her decision dated 1 March 2012 (and confirmed in the decision of 21 March 2012) that the Claimant did not have an "established presence" within paragraph 14 of Appendix C and that on the evidence could not meet the maintenance requirement in Appendix C and thus could not meet the requirement in paragraph 245ZX(d) of the Immigration Rules.
117. Consequently I reject the construction argument relied on under Ground 2. Although I grant the Claimant permission in respect of Ground 2 on the basis that it is arguable, I reject the substance of Ground 2.

Ground 3

118. In her decision of 1 March 2012, the Secretary of State did not consider whether, if the Claimant could not meet the requirements of the Immigration Rules, she should exercise discretion and grant the Claimant leave outside the Rules. However, in a letter of 10 March 2012, the Claimant's representative wrote to the UKBA requesting a reconsideration of the Claimant's application. In response to that letter, the Secretary of State issued a further decision letter dated 21 March 2012. I have set out the relevant parts of both letters above. In particular, the Secretary of State's letter of 21 March 2012 concluded:

"The Secretary of State is not satisfied that the reason for your client's application being submitted late are sufficiently compelling or compassionate enough to exercise discretion on this occasion."

119. In the grounds of application, the Claimant put ground 3 on the basis that the Secretary of State had acted unlawfully by fettering her discretion to grant leave outside the Rules by failing to consider whether she should depart from the Rules and exercise discretion in the Claimant's favour. Both in his skeleton argument and in his oral submissions, Mr Malik accepted that that original complaint was answered by the Secretary of State's letter of 21 March 2012 in which she had considered whether to exercise her discretion outside the Rules. However, Mr Malik submitted that the Secretary of State had acted unlawfully in her decision of 21 March 2012. He made two points.
120. First, Mr Malik submitted that in considering whether or not to exercise discretion in the Claimant's favour, the Secretary of State had failed properly to take into account the fact that the Claimant's application had only been made one day out of time and was de minimis. Mr Malik submitted that that was itself a compelling reason why discretion should be exercised and it was irrational for the Secretary of State not to exercise discretion in the Claimant's favour.
121. Secondly, Mr Malik submitted that the written submissions made on 10 March 2012 stated that the Claimant was "heavily ill" on 29 November 2011 and was therefore unable to post the application in time. He submitted that it was irrational for the Secretary of State not to exercise discretion in the Claimant's favour in these circumstances and to expect the Claimant to provide further evidence of her ill health where the gap was only one day.
122. Ms Chan submitted, the Claimant's challenge amounts in effect to a rationality challenge to the Secretary of State's decision not to exercise her "residual discretion" (see R (Thebo) v ECO [2013] EWHC 146 (Admin) at [14]) outside the Rules. She submitted that the Secretary of State had considered everything put forward by the Claimant as a basis for the exercise of discretion outside the Rules. The Rules were not to be deviated from easily without a sound basis. The Secretary of State's decision could not properly be characterised as irrational.
123. In my judgment, Ms Chan's submissions are unassailable. The Claimant fails to come anywhere near to showing that the Secretary of State's refusal to grant her leave outside the Rules was unlawful.
124. As is well known, the threshold of irrationality or perversity is a high one. It must be shown that the decision was so unreasonable that no reasonable Secretary of State could have come to it. In Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374, Lord Diplock at page 410 stated that irrationality required that a decision was:

"so outrageous in its defiance of logic or accepted moral standards that no sensible person who would have applied his mind to the question to be decided could have arrived at it".

125. As Mostyn J pointed out in Thebo at [30], the residual discretion must not be "just an empty gesture". Here, it clearly was not.
126. The Secretary of State was entitled to take as a starting point the requirements of the Rules and that, by making her application late, the Claimant could not meet them. The Secretary of State fully considered all that was being said on behalf of the Claimant to sustain her request to be granted leave outside the Rules. The Secretary of State clearly had in mind the two bases upon which the Claimant's representatives in their letter of 10 March 2012 based the Claimant's case for the exercise of discretion outside the Rules. Those were first, that the Claimant had made her application (in the sense of posted it) on 30 November 2011 one day after her leave expired; and secondly, that on 29 November 2011 the Claimant said she was "heavily ill" and the post office was closed (for special delivery) which prevented her from making her application in time. The fact that her application was one day out of time was not in itself a sufficiently compelling factor to demand that its effect be ignored and that the Claimant (despite not meeting the maintenance requirements of the Rules) nevertheless be granted leave outside the Rules.
127. The Secretary of State also noted that the Claimant had neither given any details of her illness nor provided any medical evidence to confirm its seriousness. Further, the Secretary of State, noting the appellant's claim that the post office was closed (for special deliveries) on 29 November 2011, pointed out that it was the Claimant's responsibility to ensure that any application was submitted in time and that she should have allowed sufficient time to complete the process. The Claimant produced no evidence, only assertion, to show that she was unable whether through illness or through the closure of the post office to post her application on the last day of her leave. The fact that, and it has not ever been suggested otherwise, she left it to the last day of her leave does not explain why she chose to leave it so late and had not make her application in ample time before 29 November 2011.
128. I am satisfied that the Secretary of State's decision not to exercise discretion outside the Rules was lawful. It was not irrational or perverse.
129. For these reasons ground 3 is unarguable and I refuse permission on that ground which, in any event, is not made out on the merits.

Conclusion

130. Accordingly, I dismiss this application for judicial review.