Tier 4 visa

4
Jul

Chau Le (Immigration Rules – de minimis principle)

Chau Le (Immigration Rules – de minimis principle) [2016] UKUT 00186 (IAC)

The Appellant was a citizen of Vietnam, who made an application for further leave to remain under Tier 4 (General) Student visa, which was refused on 9th November 2014 by the Secretary of State for the Home Department. The main ground was on the basis of non-compliance with the maintenance requirements. As according to the Immigration Rules requirements, the Appellant was required to have at least £2,040 during the relevant of 28 consecutive days. However, the Appellant’s bank statements demonstrated a balance of £2,028.32. Due to which, the Appellant’s application for further leave to remain was refused. The Appellant’s appeal to the First-tier Tribunal was successful according to the principle of de “minimis” by giving the following explanation:

–          The shortfall was occurred in the Appellant’s bank account by £11.68 during the first 20 days of the 28-day period;

–          However, on the 21st day, the balance was reduced by £1.69;

–          On the 22nd till 28th days the balance was above the minimum required by £3.31;

Therefore, the Judge’s reasoning was that the non-compliance was so minimum, thus the Secretary of State should have considered as complied with the Immigration Rules. However, the Secretary of State appealed to the Upper-tier Tribunal stating the FtT judge erred in law.

De Minimis Principle

The First-tier Tribunal made its decision based on the following:

–          Firstly, the Judge referred to R (Behary) v Secretary of State for the Home Department [2013] EWHC 3575 (Admin) where Tier 4 (General) was refused on the grounds that out of time, was received two days after the expiry of extant leave. Deputy Judge accepted this by applying de minimis principle. However, the Judge rejected this argument on the basis of two grounds: non-compliance with the Immigration Rules cannon be considered minimum and when non-compliance occurred legal certainty principle should be applied by carrying out “bright line”;

–          Secondly, in the case of MD (Jamaica) and GE (Jamaica) v SSHD [2010] EWCA Civ 213 the first Appellant was over stayer for two periods within 12 years, of some three weeks and four months’ duration respectively, where the second Appellant was over stayer for ten weeks due to having made a late application, which was eventually successful. However, Dyson LJ dismissed both appeals;

–          The final landmark case is Miah and Others v SSHD [2012] EWCA Civ 261, where the Appellant was eligible for Indefinite Leave to Remain as a work permit holder, however, during the qualifying period he had no extant work permit for 2 months. The Appellant argued that “near miss” must be forgiven.

However, Stanley Burton LJ stated that “near miss” is not the same as “de minimis” principle.

Therefore, in this case not complying with the five years’ lawful residence was not de minimis.

The judge dismissed the appeal as there is no near-miss principle applicable to the Immigration Rules.

 

Conclusion

The Mccloskey concluded that the FtT erred in law as the appellant did not comply with mandatory requirement of the Immigration Rules, which is considered rigid.

The principle de minimis does not apply in applications of the Immigration Rules. The principle is not used in a context where the question is whether a requirement of the Immigration Rules has been observed as both Immigration Rules and the Point Based System clearly states what requirements to be met or points to be obtained. Thus, de minimis is a mere substitute for sliding scale or near miss principles.

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