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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2016/702.html
Cite as: [2016] EWCA Civ 702, [2016] WLR(D) 362, [2016] 4 WLR 136

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Neutral Citation Number: [2016] EWCA Civ 702
Case No: C4/2014/0081

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
UPPER JUDGE ANDREW GRUBB
HER HONOUR JUDGE TAYLOR
CO/7768/2012 and CO/985/2013

Royal Courts of Justice
Strand, London, WC2A 2LL
06/07/2016

B e f o r e :

LADY JUSTICE HALLETT
LORD JUSTICE BURNETT
and
SIR STEPHEN RICHARDS

____________________

Between:
The Queen
(on the application of SANDIA BEHARY)
and
(on the application of SHAWKAT ULLAH)
Appellant
- and -

Secretary of State for the Home Department
Respondent

____________________

Mr Zane Malik & Mr Darryl Balroop (instructed by Malik Law Chambers Solicitors) for the Appellants
Ms Susan Chan (instructed by Government Legal Department) for the Respondent
Hearing dates: 8th June 2016

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Burnett :

    LORD JUSTICE BURNETT:

  1. At the conclusion of the argument we announced that the appeals were dismissed for reasons which would follow. These are my reasons for joining in that decision.
  2. The meaning of "established presence"

  3. The appellants have no connection but their appeals have been listed together because they raise a common issue about the meaning of the term "established presence" in Appendix C to the Immigration Rules ("the Rules"). There are additional grounds not common to the appellants.
  4. Each appellant was lawfully in the United Kingdom pursuant to leave as a Tier 4 General (Student). They applied for further leave to remain on the day after their extant leave had expired. At the dates of their respective applications paragraph 245ZX of the Rules provided:
  5. "To qualify for leave to remain as a Tier 4 (General) Student under this rule, an application 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. "
  6. Those requirements include the need to demonstrate a certain level of available funds under Appendix C. The extent of those available funds depends upon whether the applicant has "an established presence" in the United Kingdom, or not. If he has an established presence the sum needed is much lower. Each of these appellants was able to demonstrate the funds needed for a person with an established presence in the United Kingdom, but fell far short for someone without that presence. The Home Office concluded that neither had an established presence because the applications were made after the expiry of their extant leave. Paragraph 14 of Appendix C defined the term:
  7. "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 six 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 six months of that course."

    The appellants satisfied the subsidiary criteria. Their applications failed because the Home Office took the view that neither had current leave to enter when the application was made for the simple reason that their leave had expired.

  8. One consequence of making the application for further leave after the extant leave had expired is that neither of the appellants before us was able to exercise a right of appeal to the First-tier Tribunal. That is why these cases have proceeded by way of judicial review, and proceeded very slowly.
  9. Mr Malik's "key submission" now, as it was below, is "that the expression 'current' at Paragraph 14 on a proper construction, means 'recent' or 'latest'". In the case of Behary, Upper Tribunal Judge Grubb, sitting as a Deputy High Court Judge, rejected that argument: [2013] EWHC 3575 (Admin). In the case of Ullah, Judge Taylor, sitting as a judge of the High Court, took the same view: [2015] EWHC 337 (Admin).
  10. The ordinary meaning of the word "current" does not encompass "recent" or latest". Mr Malik does not submit to the contrary. "Has current leave" would appear to be referring to an existing state of affairs. He also accepts that the reference to completing a course "within the applicant's last period of entry clearance, leave to enter or leave to remain", in the first of the two subsidiary criteria, provides a contrast with current entry clearance. At first blush it would appear that if his suggested interpretation of the word "current" were right, it should have been used again for the purposes of consistency in subparagraph (i).
  11. It is uncontroversial that Rules should be construed sensibly according to the natural meaning of the words used to discern what the Secretary of State must be taken to have intended, and Parliament approved. They are not to be subjected to strict rules of statutory construction. Furthermore, the meaning is not to be discovered from the Immigration Directorate's Instructions ("IDI"), or guidance documents to officials: see para [10] of Mahad v Entry Clearance Officer [2009] UKSC 16; [2010] 1 WLR 48 per Lord Brown of Eaton-under-Heywood, with whom all other members of the court agreed.
  12. Mr Malik submits that the meaning of "current" is ambiguous because in many places elsewhere in the rules they refer to "valid entry clearance" (although we were not shown any examples of "valid leave to enter" or "valid leave to remain", still less "valid entry clearance, leave to enter or leave to remain").
  13. To my mind there is nothing ambiguous about the language of Paragraph 14 of Appendix C. It is using "current" in its ordinary way. It requires the applicant concerned to have the relevant leave (or entry clearance) at the date on which he makes his application for leave. If at the date of application that leave has expired, it is not current.
  14. The purpose in Mr Malik seeking to persuade us that the meaning of "current" was in some way ambiguous was to enable him to seek to rely upon a limited exception to the statement of Lord Brown that an IDI could not be prayed in aid to construe the Immigration Rules. Adedoyin v Secretary of State for the Home Department [2010] EWCA Civ 773; [2011] 1 WLR 564 concerned the interpretation of the words "false representations" in the Rules and whether false meant "wrong or incorrect" or "lying, deceitful etc". Since the consequence of making false representations was the refusal of leave, it was of importance to know whether the rule was directed at factual inaccuracy or knowing deceit. Guidance provided to officials suggested that deceit was the test. There was ministerial confirmation to the same effect. In para 65 of his judgment Rix LJ indicated that there was an open choice for the court to decide whether false meant "incorrect" or "dishonest". He favoured "dishonest" for a number of reasons. In para 70 he said:
  15. " in a situation where a word has two distinct, and distinctively important, meanings, there is genuine ambiguity which makes it legitimate, in construing Rules which are expressions of the executive's policy, to consider what the executive had said publicly about its rules. Clearly, what a minister says in Parliament, expressed as an assurance, and especially on the occasion of a debate arising out of the tabling of the amended rules, is of particular, and may be decisive, importance. In such a situation of genuine ambiguity, moreover, it seems to me that, perhaps exceptionally, it is even possible to get some assistance from the executive's formally published guidance In saying that I do not think I am departing from the observations of Lord Brown JSC in Mahad's case."

    A similar approach was adopted in Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568 at paras [42] and [43].

  16. In the absence of any genuine ambiguity in the language of paragraph 14 of Appendix C, there is no basis to go to extraneous materials as an aid to construction. That said, the way in which the guidance on which the appellants wished to rely was produced, illuminates a hazard in dealing with material available on the National Archive website, itself archiving not hard copy documents but materials available on departmental websites.
  17. Mrs Behary made her application on 30 November 2011, and Mr Ullah his on 31 January 2012. The appellants' advisers at some stage searched the National Archive for past electronic versions of Home Office guidance on the meaning of "established presence". The fruits of those searches were available at the hearings at first instance in October 2013 and January 2015 respectively, although they were not referred to in the grounds. They had thrown up guidance available at some stage on the UK Border Agency website. The National Archive website suggested that the guidance had been "captured" on 8 December 2011. A small part of it has been produced which includes a section headed "How much money do you need?" and then "Do you have an 'established presence'?" Within that section is the statement:
  18. "Any student (including a postgraduate doctor or a student union sabbatical officer) has an established presence studying in the UK if they:
    Completed a single course of study lasting at least 6 months during their most recent permission to stay in the UK; or
    Are applying to continue studying on a single course in the UK, of which they have completed at least 6 months.
    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."
  19. It is immediately apparent that this formulation is not consistent with paragraph 14 of Appendix C in the form applicable at the time of the applications made by these appellants. That was introduced as part of the Statement of Changes in Immigration Rules laid before Parliament on 31 March 2011. The old paragraph 14 was deleted and replaced. The previous iteration laid before Parliament on 18 March 2010 had been:
  20. "14. An applicant will have an established presence studying in the United Kingdom if the applicant has completed a course that was at least six months long within their last period of leave as a Tier 4 migrant, a student or as a Postgraduate Doctor or Dentist, and this course finished within the last four months, or the applicant is applying for continued study on a course where the applicant has completed at least six months of that course and has been studying within the last four months."
  21. The short extract from the electronic archive of the guidance does not say with which version of the Rules it is concerned (and whether a longer extract or sequential search through the archive would do so, we know not). But it is clear that it is consistent with the earlier rule, and not the later one. Whether further delving into the electronic archive would have made that apparent is unknown. However, it cannot be assumed that because a document which at some stage was available on a departmental website was captured on a particular day, that it necessarily was up to date, or referred to the current version of the rule. It would be surprising if guidance which had been superseded were to be immediately removed from the website, because it would still be of interest for many purposes. A similar problem arose in R (Singh and Khalid) v Secretary of State for the Home Department [2015] EWCA Civ 74 where the question was whether it was possible to obtain from the National Archive website consolidated versions of the Immigration Rules as they stood at any given date. It appeared that "they were not entirely accurate", para [58].
  22. We have in hard copy the guidance for applications made on or after 21 April 2011 (also available on the UK Border Agency website) which, as one would expect, is entirely consistent with the new rule that had been approved by Parliament three weeks before, but only took effect on that day.
  23. Behary and the children

  24. Mrs Behary advances two grounds of appeal which rely upon the presence in the United Kingdom of a daughter born in Mauritius on 25 November 2003 and a son born in the United Kingdom on 12 October 2007. First, it is suggested that in the process of decision making the Home Office should have granted the children leave to remain in the United Kingdom because they had been in the United Kingdom for seven years or more. Secondly, that the decision making was vitiated by a failure to take the interests of the children properly into account as required by section 55 of the Borders, Citizenship and Immigration Act 2009 ("the 2009 Act"). Mr Malik accepts that if Mrs Behary and the children are unable to succeed on the first of those arguments, which is based upon paragraph 276ADE(iv) of the Rules, the second adds nothing.
  25. To understand the arguments under this head a fuller explanation of the facts and chronology is required.
  26. Mrs Behary arrived in the United Kingdom on 5 May 2005. Her husband and daughter came with her. All arrived as visitors. She soon applied successfully for leave to remain as a student which was granted and extended on a number of occasions until 29 November 2011. It was her next application that was out of time. The successive leave to remain in the United Kingdom of her husband and daughter, and that of her son later born here, has been reliant on her leave to remain as a student. The application made by Mrs Behary was solely on the basis of a points based migrant. Her husband and children made applications as, respectively, the partner and children of a points-based migrant. It was inevitable under the Rules that if Mrs Behary's application was refused that theirs too would fall to be refused. No claim was advanced under article 8 of the European Convention on Human Rights ("ECHR"); no separate claim was advanced on behalf of the elder child on the basis of long residence.
  27. The Home Office refused Mrs Behary's application by decision letter of 1 March 2012 and sent decision letters to each of her family members on the same day refusing their derivative claims. The family's solicitors made further representations by letter dated 10 March 2012. These representations related to the reasons why Mrs Behary was late with her application. The letter reiterated that she was a genuine international student with the funds needed for an in-time application for further leave to remain as a Tier 4 (General) Student. Nothing was said about the children. The decision was maintained. Judicial review proceedings were issued on 21 June 2012. Amongst the grounds was that the decision of 1 March 2012 had failed to have regard to section 55 of the 2009 Act by having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom.
  28. On 12 November 2012 Wilkie J granted permission to apply for judicial review limited to the section 55 ground. He refused permission on two other grounds, namely the meaning of "established presence" and also that the Home Office should have considered exercising its discretion outside the rules. The judge allowed those grounds to be pursued at the substantive hearing, even though there had been no timely renewed application. Following the grant of permission to apply for judicial review the Home Office indicated that it would make a fresh decision considering section 55. It is a striking feature of this case that although section 55 was raised as a legal argument in the judicial review grounds, no evidence relating to the children was filed in support. That was a serious failing. All that was known from the immigration papers and claim form was the ages, genders and places of birth of the two children. It was also known, therefore, that at the time proceedings were issued the elder child had been in the United Kingdom for just over 7 years and the younger since his birth almost 5 years before.
  29. No application was made at any time by or on behalf of the children relying upon any of the Rules.
  30. On 31 July 2013 the Treasury Solicitor wrote to Mrs Behary's solicitors indicating that the Home Office would issue a supplementary decision letter taking account of section 55 on the basis of the information available to them on 16 August. No acknowledgment, still less reply, was received to that letter. No information about the children, their welfare or the impact upon them of leaving the United Kingdom with their parents was conveyed to the Home Office upon which to make any assessment. What the Home Office, and in turn the judge, was faced with was a lawyers' construct devoid of the necessary evidential support. The supplementary decision was dated 18 September 2013. The judge allowed Mrs Behary to challenge that decision in the judicial review proceedings, which were heard on 16 October 2013 without amending the grounds. Mr Malik submitted before the judge that because one of the children had been in the United Kingdom for more than seven years that was "a trump card" because the Rules provided that in such cases the child should be allowed to stay. In rejecting the submission the judge observed:
  31. "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".
  32. The judge concluded that the supplementary decision was lawful. In my judgment, that conclusion is unassailable. Section 55 of the 2009 Act provides:
  33. "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 or an immigration officer;
    (c)
    (d)
    (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).
    (4) (8)"

    The Secretary of State has issued guidance on making those arrangements.

  34. The supplementary decision concerned the earlier decision to refuse Mrs Behary's points based application, no other application having been made since. It was inevitably a rather odd decision. It had never been explained on behalf of Mrs Behary how section 55 could lead to the grant of leave to remain as a Tier 4 (General) Student when the applicant, Mrs Behary, did not qualify. The decision letter noted the details as known of the older child who by then had been here for eight years and four months. She was Mauritian, spoke English and had been educated in the United Kingdom in English. English is one of the languages widely spoken in Mauritius. The decision letter noted that no information had been provided but concluded that it was likely that she had been in education for four years and thus made friends at school and elsewhere. But she could do so again if she moved to Mauritius. It was considered that as the parents' temporary leave had expired the best interests of the children would be served by the family remaining as a unit and returning home. Similar points were made in respect of the younger child, then aged five. The family unit would return to Mauritius together with no interruption in the children's care. The decision letter recognised that the children had little or no experience of life in Mauritius, but they would be able to resume their education. Reference was made to various judicial decisions before reiterating that "your client's children would be returning to Mauritius with both their parents so there would be no interference with family life." The overall conclusion was contained in the following paragraphs:
  35. "The Secretary of State has considered all of the factors detailed above and the fact that the leave granted was temporary and has 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 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 the 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."
  36. Mr Malik has developed his submission on this ground rather differently from how he proceeded before the judge. He now founds his submission on paragraph 276ADE of the Rules which is concerned with the "requirements to be met by an applicant for leave to remain on the grounds of private life". That paragraph was not relied upon before the judge, was not mentioned in the grounds of appeal but emerged six months later in the skeleton argument. The argument appears to be that the Home Office should have understood the un-evidenced reference to section 55 in the judicial review claim form as being an application made on behalf of the elder child for leave to remain in the United Kingdom on the basis of her private life, on the ground that she had been in the United Kingdom for more than seven years. Having, it would seem, been expected to grant that application, the Home Office should then have gone on to appreciate that each of the remaining members of the family should be understood (on the basis of the same exiguous reference) to be making applications grounded in article 8 ECHR.
  37. I am unable to accept that the Home Office could have been expected to approach the reference in the claim form to section 55 in this way. Applicants for leave to enter or remain in the United Kingdom make their applications and the Home Office considers and decides the application made. It cannot be expected to chase shadows. At no stage did the applicant explain what the consequence of proper consideration of section 55 would be. The decision letter of 18 September 2013 did its best to deal with an argument which Mrs Behary and her advisers had chosen not to underpin with any evidence. In doing so, as the extracts from the letter show, the officials concerned in the end approached the question as they would the wholesale removal of a family when a parent is required to leave and other family members, including children, are required to follow. In my view the officials concerned paid proper regard to the welfare of the children in concluding, were that the issue, that the family would be expected to go.
  38. In any event, Mr Malik's reliance on paragraph 276ADE is misplaced for a more fundamental reason. The decision under challenge for this purpose is that of 13 September 2013. It is unfortunate that in advancing this argument Mr Malik relied upon a version of the paragraph which was no longer in force when that decision was made. Paragraph 276ADE(iv) enabled leave to be granted to a person who "is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment)". However, as from 13 December 2012 the words "and it would not be reasonable to expect the child to leave the UK" were added to the paragraph. That made it consistent with the other rules which the judge referred to.
  39. The Rules which applied on 13 September 2013 were not those relied upon by the appellant in support of this argument. There can be no doubt that the decision letter of 13 September 2013 proceeded on the basis that it would be reasonable to expect the elder child to leave the United Kingdom. The whole premise of the letter was that it would be reasonable for the whole family to return to Mauritius.
  40. The subsidiary argument, namely that the original decisions in March 2012 were defective because the Home Office did not mention or consider section 55 of the 2009 Act, does not strictly arise. I touch on it briefly only to dispel any suggestion that the mere fact of a failure to mention section 55 of the 2009 Act in a decision relating to a points based application for leave by a parent could support a claim for judicial review. The judge considered this argument between paras 20 and 47. Before us Mr Malik accepts that the Secretary of State had discharged her duty under section 55 by issuing the guidance to her officials. He suggested that the error lay with the officials who made the original decision in failing to apply that guidance. For the reasons given by the judge, I agree that officials in the Home Office are not obliged by section 55 of the 2009 Act, or the guidance made under it, to consider the welfare of children in a formulaic way simply on the basis of an awareness of their existence. As the judge put it:
  41. "43. The claimant was not relying upon her children'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 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.
    46. It cannot have been Parliament's intention to impose 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 in the UK."
  42. The application made by Mrs Behary in this case was on the basis that she qualified for leave as a student by reference to the Rules. The applications made by or on behalf of the other members of the family were derivative and, under the Rules, stood or fell with her application. In those circumstances, the Home Office was entitled to proceed on the assumption that there was nothing in the circumstances of the children which suggested that leave of a different nature was being sought or should be granted. The Secretary of State has discharged her duty by putting in place the necessary arrangements for the welfare of children to be taken into account by issuing the guidance; and there was nothing in the guidance which required officials to embark upon an artificial and evidence free exploration of the children's interests in the context of a points based application by their parent.
  43. Ullah and discretion

  44. Mr Ullah, having failed in his argument on the meaning of "current" runs a second argument. Underhill LJ granted permission to this appellant on the "current" point because permission had already been granted to Mrs Behary. He refused permission on all other grounds but directed that any oral renewal should take place at the hearing of the appeal. Mr Malik has renewed one of those grounds. It is that the Home Office failed to consider exercising, and then failed to exercise, its residual discretion to grant leave to remain outside the Immigration Rules.
  45. There was a technical argument before the judge about whether Mr Ullah had permission to argue the ground in the judicial review proceedings. She concluded that he did not and refused to treat the hearing as a renewed out of time application for permission on that ground. In the result, the judge did not consider whether the point had any substance.
  46. Mr Malik submits that the judge erred in concluding that His Honour Judge Gilbart QC, who granted permission on the papers, had limited the grant of permission. In my judgment he is correct in that submission but there is no substance in the underlying argument. I would therefore refuse permission to appeal on this ground.
  47. The order made by Judge Gilbart QC when granting permission was "Permission is hereby granted". In the observations that followed the judge indicated that he had considered whether there was an arguable case relating to the decision refusing Mr Ullah's application. He continued:
  48. "In my judgment there is an arguable case, based upon the combination of grounds 1 and 2."

    Ground one was a de minimis argument, i.e. that a narrow failure to comply with the Immigration Rules in question should be ignored. Ground 2 related to the meaning of "established presence". It was in those circumstances that the Home Office contended, and the judge accepted, that despite the generality of the order made by Judge Gilbart QC permission was in fact limited to those two grounds.

  49. A similar question arose in Secretary of State for the Home Department v Rodriguez [2014] EWCA Civ 2, which was not cited to the judge when she considered this issue, in the context of the grant of permission to appeal by the Upper Tribunal to the Court of Appeal. Davis LJ dealt with the question at para 76 and following. The order was unrestricted, "permission to appeal is granted", but the reasons focussed on only one ground. The task was to construe the order as a whole. Where the opening words of the order suggested an unqualified grant of permission and what followed in the reasons was ambiguous, the ambiguity should be resolved in favour of the applicant: para 77.
  50. It is commonplace to see an order granting permission stating that it is limited to one or only some of the grounds advanced. It is also commonplace to see the observations following what appears to be a general grant of permission explicitly limiting the grounds: "For these reasons I grant leave on grounds x, y and z only". Equally, it is not uncommon to see in observations an indication that the judge considers only some of the grounds to have potential merit but nonetheless to give general permission. Although in this case it is apparent that Judge Gilbart QC focussed on two of the grounds, the overall position was ambiguous and should be resolved in favour of Mr Ullah.
  51. On the substance of the argument, there is no doubt that there is a general discretion to grant leave to remain in the United Kingdom outside the Rules. This appellant is correct in suggesting that the exercise of such a discretion was not considered in the decision which was challenged. No request was made in combination with the application for leave to remain as a Tier 4 student that the Home Office exercise discretion outside the Rules in favour of Mr Ullah. Mr Malik accepts that there is no legal obligation upon the Home Office to consider its discretion outside the rules in every application for leave to remain. He submits that whether it is required to do so as a matter of law depends upon the facts of the case. He drew our attention to two first instance decisions in which judges had, on the facts, concluded that a failure to consider and exercise the discretion was said to be unlawful. He submits that the facts in Mr Ullah's case, essentially that his application was a very near miss, show that there is a realistic prospect that discretion would be exercised in his favour were the matter to be given explicit consideration by the Home Office.
  52. In my view there was no obligation upon the Home Office to consider the grant of leave to remain outside the Rules in Mr Ullah's case. There is an obligation to consider such a grant when expressly asked to do so and, if but briefly, deal with any material relied upon by an applicant in support. Outside cases where there has been a request there may exist, at least in theory, cases where the facts are so striking that it would be irrational in a public law sense not to consider the grant of leave outside the Rules or at least seek clarification from the applicant whether he was seeking such leave. Mr Ullah, who had the benefit of professional assistance, sought leave to remain as a Tier 4 (General) Student. He made no application for leave outside the rules. There is nothing about his circumstances that could engage a public law duty to consider the exercise of the discretion. Moreover, his argument seeks to resurrect the de minimis or near miss argument on which he failed at first instance and, in the face of the recent decision of this court in Secretary of State for the Home Department v KG (India) [2016] EWCA Civ 477, which he abandoned in this appeal. The Home Office has expended much energy in recent years to resist attempts by applicants to persuade the courts that there exists a legal principle that a near miss in complying with the Rules in cases such as this should be overlooked. The de minimis argument is a variation upon that theme. Had the Home Office been asked expressly to exercise its discretion outside the Rules, it is to my mind inconceivable that the response would have been positive.
  53. SIR STEPHEN RICHARDS:

  54. I agree.
  55. LADY JUSTICE HALLETT:

  56. I also agree.


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