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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 >> Afzal v Secretary of State for the Home Department [2012] EWHC 1487 (Admin) (31 May 2012) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2012/1487.html Cite as: [2012] EWHC 1487 (Admin)

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		31/05/2012

Mr Justice Wyn Williams:

The relevant background

1. The Claimant is a national of Pakistan. In October 2006 he came to this country to work as a religious worker (non-pastoral). He entered the UK with leave to remain until 25 September 2007. On 22 August 2007 his leave to remain was extended to 25 September 2008.
2. Some time before the expiry of his leave the Claimant applied for a further extension. Under the Immigration Rules then in force the Claimant was entitled to remain within the United Kingdom as a religious worker (non-pastoral) for a period which did not exceed 24 months. On 17 September 2008 the Defendant refused the application for a further extension of the Claimant's leave since the 24 months period was about to expire. Initially the Claimant issued an appeal against that decision but later withdrew it.
3. On 27 October 2008 the Claimant applied for leave to remain as a Minister of Religion. His application was refused on 22 March 2009. He appealed but on 18 May 2009 the appeal was dismissed. Shortly thereafter the Claimant's appeal rights were exhausted and he became an illegal overstayer.
4. On 13 November 2010 the Claimant again applied for leave to remain. It is common ground that the Claimant's application was not made under the Immigration Rules; rather he invited the Defendant to exercise her discretion to permit him to remain notwithstanding that he could not meet the requirements of the Immigration Rules then in force. That application was refused on 24 November 2010.
5. On 19 February 2011 the Claimant made a combined application for further leave to remain in the UK as a Tier 2 (Minister of Religion) Migrant and for a Biometric Residence Permit (BRP). By then the Points Based System was in force. The Claimant's application was sponsored by the Reading Islamic Centre. The application was made on a standard form issued by the Defendant; the appropriate fee was paid and a number of documents were supplied in support of the application. The documents included a letter dated 27 January 2011 from senior officers of the Reading Islamic Centre and a letter dated 9 February 2011 from a local councillor.
6. It is to be noted that by the date of this application the Claimant had overstayed his leave by almost 2 years and during this period he was working at the Reading Islamic Centre. In his application the Claimant explained that he had overstayed his leave because he was preparing for his "English Language Communication and Life in the UK tests" and his Sponsor had only recently obtained a Tier 2 licence. Documents demonstrating that the Claimant had passed his tests and that the Sponsor had obtained a licence were provided.
7. It is clear that the Claimant's application of 19 February 2011 was based on the premise that the Claimant was able to satisfy the Immigration Rules then in force. There is nothing in the documents which have been provided to me which suggests that the Claimant invited the Defendant to exercise her discretion to permit him to remain in the UK even if the Claimant could not satisfy the Rules.
8. On 4 April 2011 the Defendant refused the Claimant's application. The decision letter recorded the reason for the decision as being that the Claimant did not meet the requirements of the relevant Immigration Rule. The Defendant did not consider whether it was appropriate to grant the Claimant's application by exercising her discretion to act outside the Rules.
9. On 9 May 2011 the Claimant's solicitors submitted a pre-action protocol letter to the Defendant. It asked the Defendant to reconsider her decision of 4 April 2011. It raised arguments about the proper interpretation of the Immigration Rules and it alleged that the Defendant's decision had breached the Claimant's rights under Article 8 ECHR. The pre-action protocol letter was answered in a response dated 7 June 2011. The response dealt with the interpretation of the Immigration Rules and it dealt in detail with the suggestion that the Claimant's rights under Article 8 had been infringed.
10. These proceedings were commenced on or about 1 July 2011. In the statement of facts and grounds it was asserted that the Defendant had failed to exercise her discretion to grant the Claimant's application outside the ambit of the Immigration Rules. This was the first time that this issue had been raised in connection with the Claimant's application of 19 February 2011.
11. The application for permission was considered at an oral hearing. Ms Frances Patterson QC, sitting as a Deputy High Court Judge, refused permission on all grounds save one. She granted the Claimant permission to argue that the Defendant had acted unlawfully in failing to exercise her discretion to grant the Claimant's application notwithstanding that he could not meet the relevant criteria within the Immigration Rules.
12. Following the grant of permission the Claimant's solicitors made further representations to the Defendant. The representations were contained in a letter dated 14 December 2011. The relevant parts of the letter are as follows:-

"We hereby submit that the claimant/applicant is a person who is performing a holy role at the Reading Islamic Centre as an Imam (Minister of Religion) and he is responsible for leading the daily prayers (5 times a day) at the centre. Besides this he is also responsible for teaching the young children at the centre.

It is further submitted that the claimant is performing this role at the centre for the last 5 years and a disruption to the worshippers/attendees, to the management and to the young children can be imagined if the claimant is removed from the United Kingdom only for the reason that his application is not covered under the rules (despite of the fact that he has fulfilled all of the requirements of the relevant rules and he has scored all of the required points satisfactorily).

We hereby enclose detailed signed petitions by the worshippers/attendees (the people who attend daily prayers) of the centre and also a signed petition by the parents of the children who attend the centre for education for your kind consideration.

In the light of the above enclosures we respectfully ask you to reconsider our client's application on sympathetic basis and for the grant of appropriate leave in due course."

The petition from the parents of the children contained 24 signatures in respect of 24 pupils and the petition was headed as follows:-

"This is to state that Mr Sher Afzal has been known to us for almost 5 years. The community is fully satisfied with Mr Afzal's services and there have been no complaints about his character, his professionalism or his commitment to work. He is now well established in the community and has won their confidence and respect for the professional religious duties he give.

In addition, Mr Afzal has a daily responsibility to about 30 children for religious studies. His supervision skills and teaching ability are a credit to him and is a service the community cannot do without. Both students and parents are satisfied with his efforts and fully support his continuation in this capacity.

We the under signees are satisfied with Mr Afzal's performance and take this opportunity to support him with his application to enable him to continue his much needed services in the community."

13. The Defendant replied in detail to those representations by letter dated 28 March 2012. The salient parts of the letter read:-

"Consideration has been given as to whether your application should be given exceptional consideration. It is acknowledged you have made attempts to regularise your stay in the UK. However, these applications have all been refused as you have failed to meet the requirements of the Immigration Rules for the categories of leave that you applied for.

While the Immigration Rules contain a certain element of discretion, there is no duty placed upon the Secretary of State to exercise that discretion and only circumstances relating to the individual that would make it unduly unreasonable for them to return home and are sufficiently compelling would warrant the exercise of that discretion.

The UK Border Agency has not received any information which would detail why it would be unreasonable to expect you to comply with the condition associated with your entry to the UK and return to your country of origin following the expiry of your leave.

Consideration has been given to the signed petition from the Reading Islamic Centre, additional supporting evidence and correspondence from Mayfair Solicitors, which details your involvement with the centre, which includes leading the daily prayers and teaching young children.

The fact that the refusal of your application and potential removal from the UK would create a disruption to worship/attendees and to the management of the centre is not a sufficiently compelling reason to exercise discretion, as these factors relate to your employer and your position with that employer (who you do not have permission to work for), rather than personal circumstances relating to you.

On this basis it would not be appropriate to exercise discretion in your favour and your application will be decided in line with the Immigration Rules."

14. On 8 May 2012 the Claimant's skeleton argument, prepared by Mr Zane Malik, was received at the court office. In the skeleton Mr Malik argued that the decision communicated by the letter of 28 March 2012 was unlawful because the decision maker had failed to take account of section 55 of the Borders, Citizenship and Immigration Act 2009 (the 1999 Act). Subsequently, Mr Malik's instructing solicitors filed an application for permission to amend the claim so as to rely upon this additional alleged ground of illegality. At the commencement of the hearing I granted permission to amend the claim to rely upon this additional ground.

The statutory context

15. Given the way that Mr Malik has developed his submissions it is necessary to set out the relevant parts of the Immigration Act 1971 (the 1971 Act). Section 3 of the 1971 Act provides:-

"(1) Except as otherwise provided by or under this Act, where a person is not a British citizen –

a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, this Act;

b) he may be given leave to enter the United Kingdom (or, where already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period;

c)….

(2). The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom a person is required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances;……"

16. Section 4 of the Act specifies the persons who are to exercise the power to give or refuse leave to enter and/or remain. It provides:-

"(1). The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers, and the power to give leave to remain in the United Kingdom, ….shall be exercised by the Secretary of State;"

17. During the course of argument Mr Malik also drew my attention to section 33(5) of the 1971 Act. This sub-section provides that the Act shall not be taken to supersede or impair any power exercisable by the Crown in relation to aliens by virtue of Crown prerogative.
18. The additional ground of challenge concerns section 55 of the 2009 Act. Its terms are as follows:-

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

a) the functions mentioned in sub-section (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 in sub-section (2) are provided having regard to that need.

(2) The functions referred to in sub-section (1) are –

a) any function of the Secretary of State in relation to immigration, asylum or nationality; …….

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

Relevant extracts from the policy issued by the Defendant are set out in that section of my judgment headed "Relevant policies".

The relevant Immigration Rules

19. Paragraph 245HD sets out the requirements for leave to remain as a Tier 2 (Minister of Religion) migrant.

"To qualify for leave to remain as a Tier 2 (General) migrant, Tier 2 (Minister of Religion) migrant or Tier 2 (Sportsperson) migrant 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 application will be refused.

Requirements:

a) the applicant must not fall for refusal under the general grounds for refusal, and must not be an illegal entrant.

b) the applicant must have, or have last been granted, entry clearance, leave to enter or leave to remain [as one of 24 specified categories which are set out].

j) if applying as a Tier 2 (Minister of Religion) migrant, the applicant must have a minimum of 50 points under paragraphs 85 to 92 of Appendix A.

l) the applicant must have a minimum of 10 points under paragraphs 5-10 of Appendix B

m) the applicant must have a minimum of 10 points under paragraphs 4 to 5 of Appendix C."

20. Paragraph 85 of Appendix A specifies that an Applicant for leave to remain as a Tier 2 (Minister of Religion) migrant must score 50 points for attributes. 50 points are awarded if the Applicant provides a valid certificate of sponsorship.
21. Mr Malik also drew my attention to paragraph 320 of the Rules. That paragraph specifies grounds upon which entry clearance or leave to enter the United Kingdom is to be refused. Such grounds include the case of an overstayer unless the overstayer has left the UK voluntarily, not at the expense of the Secretary of State, more than 12 months prior to the determination of his application.

Relevant policies

22. The Defendant has published a document entitled Immigration Directorates' Instructions (hereinafter referred to as "IDI"). Chapter 1 of section 14 of that document is entitled "Leave Outside of the Rules". Paragraph 1 states:-

"However, there are still likely to be a small number of mainly non-asylum and non-protection immigration policy concessions and categories where the Secretary of State or an immigration officer may exercise discretion and grant leave to someone who does not meet the requirements of the Immigration Rules, or the Humanitarian Protection or Discretionary Leave Criteria, as well as a general discretion to grant such leave.

Where a person does not qualify for leave under the Rules or the Humanitarian Protection or Discretionary Leave Policies, any other leave to enter or remain must only be granted under a further category of 'Leave Outside of the Rules (LOTR)' – such instances are likely to be rare."

Paragraph 1.2 reads:-

"The only two circumstances where it will be necessary to consider granting LOTR would be in mainly non-asylum and non-protection cases:

Where someone qualifies under one of the immigration policy concessions; or

For reasons that are particularly compelling in the circumstances."

The phrase "particularly compelling in the circumstances" is considered under paragraph 2.2 which provides:-

"There may be particular compelling circumstances where someone may request either limited or indefinite LOTR. Any such case should be considered on its individual merits and in line with any relevant policy at the time. Case workers/immigration officers should always give first consideration to whether someone first qualifies under the provisions of the Immigration Rules, or the Humanitarian Protection and Discretionary Leave Criteria or any relevant policy instruction.

It is not possible to give instances or examples of case-types that might be defined as 'particular compelling circumstances'. However, grants of such LOTR should be rare, and only for genuinely compassionate and circumstantial reasons or where it is deemed absolutely necessary to allow someone to enter/remain in the UK, when there is no other available option."

23. The Defendant's guidance under section 55 of the 2009 Act was published in November 2009. It defines the expression found in section 55(1)(a) – "safeguard and promote the welfare of children" – as being

Protecting children from maltreatment;

Preventing impairment of children's health or development (where health means physical or mental health and development means 'physical, intellectual, emotional, social or behavioural development');

Ensuring that children are growing up in circumstances consistent with the provision of safe and effective care;

Undertaking the role so as to enable those children to have optimum life chances and to enter adulthood successfully."

24. Mr Malik also relies upon paragraph 2.7 of the guidance which provides that the Defendant must act in accordance with the following principles:-

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

In accordance with the UN Convention on rights of the child the best interests of the child 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 of children taken into account whenever practical when decisions affecting them are made, even though it will not always be possible to reach decisions with which the child agrees. In instances where parents and carers are present they will have primary responsibility for the children's concerns.

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

25. The statutory obligation is to have regard to the guidance. The guidance itself informs decision-makers that if they decide to depart from the guidance they must have clear reasons for so doing.

Ground 1

26. In his skeleton argument and oral submissions Mr Malik deployed a number of arguments in support of his contention that the Defendant had acted unlawfully in refusing to exercise her discretion to permit the Claimant to remain in the United Kingdom. Many of the points crystallised around the decision letter of 28 March 2012. No application was made to amend the grounds to challenge the letter of 28 March 2012 save in relation to the point concerning section 55 of the 2009 Act. That said all the points taken by Mr Malik were argued fully and I propose to deal with the main points taken by him in his written and oral submissions regardless of whether, strictly, they were covered by the grounds of claim.
27. Mr Malik's starting point is that the source of the discretion which the Defendant exercises when granting permission to remain in the UK "outside the Rules" is Part 1 of the 1971 Act. He refutes any suggestion that the discretion arises by virtue of the doctrine of Crown prerogative. Instinctively, I agree. I also agree with Mr Malik that if the source of the discretion is the statute the Defendant must exercise it in a manner which is consistent with the statutory aims and/or objectives.
28. What are the aims or objectives of Part 1 of the 1971 Act? Part 1 is headed "Regulation of Entry into and Stay in the United Kingdom". It seems to me to be clear that this is a clear statement of the principal objective of this part of the Act. Section 3(2) of the Act provides for the making of immigration rules; the rules are intended to lay down the practice which will be followed for regulating entry into and stay in the UK. It seems equally clear that Parliament thereby intended that there should be a consistency of approach, so far as reasonably possible, when dealing with applications for entry into and leave to remain within the UK. Every applicant for entry and/or leave knows or ought to know the relevant criteria by which his application will be judged. If the criteria are met then entry clearance or leave to remain will be granted; if they are not met, in the absence of issues relating to ECHR, the expectation is that the application will normally fail.
29. Mr Malik submits that the decision taken in this case was inconsistent with the statutory aims and objectives. I do not see how this can be so. The Defendant properly concluded that the Claimant could not satisfy the Immigration Rules. However, she did not stop there; she recognised that it was open to her exercise her discretion to permit the Claimant to remain in the UK. Having considered whether she should exercise her discretion she declined to do so. In reality, the issue in this case is whether the Defendant's exercise of her discretion was unlawful. That must be tested applying established published law criteria.
30. Before considering the other points taken by Mr Malik in support of ground 1 it is worth noting a point made by Ms Glass. IDI is a document issued by the Defendant so as to assist caseworkers in reaching decisions in individual cases. It is in the nature of a policy document and, no doubt, persons who are the subject of decisions by caseworkers are entitled to expect that those decisions will be taken in accordance with the instructions contained within IDI, certainly unless good reasons exist to depart from the instructions. Ms Glass submits that the Defendant was lawfully entitled to issue IDI and that caseworkers who apply it are not acting unlawfully.
31. Mr Malik does not suggest that the Defendant was not lawfully entitled to issue IDI. In the context of this case that means that the Defendant was lawfully entitled to specify that caseworkers appointed by her would exercise discretion to permit a foreign national who did not satisfy the Immigration Rules to remain in the UK only if particularly compelling reasons or circumstances existed which justified such a course (see paragraph 22 above). In short, therefore, ground 1 can succeed only if the Claimant can establish that the Defendant failed to apply IDI or applied it in such a way that her decision can be categorised as irrational or unreasonable.
32. As it happens, Mr Malik does submit that the decision reached in this case was inconsistent with IDI. He points, particularly to the following paragraph of the decision letter of 28 March 2012:-

"While the Immigration Rules contain a certain element of discretion, there is no duty placed upon the Secretary of State to exercise that discretion and only circumstances relating to the individual that would make it unduly unreasonable for them to return home and are sufficiently compelling would warrant the exercise of that discretion."

Mr Malik submits that the test applied in this paragraph as to whether leave to remain should be granted is not consistent with the test set out in IDI. In IDI a caseworker is instructed, in effect, to grant leave to remain if there are particularly compelling reasons why leave should be granted. Mr Malik complains that the Defendant in this case has introduced a further test namely whether it would be "unduly unreasonable" for the Claimant to return home.

33. I do not read the decision letter as introducing an additional or different test from that contained within IDI. In IDI the caseworker is obliged to consider whether or not particularly compelling reasons exist in the circumstances of the case to justify the grant of leave to remain. One of the circumstances which, inevitably, will arise and which must be considered is the effect of a person's removal from the United Kingdom. If the effect is "unduly unreasonable" no doubt that will be a factor pointing to the conclusion that compelling reasons exist as to why leave to remain should be granted. That does not mean that the Claimant has had to surmount an additional hurdle; quite the contrary the Defendant has identified, expressly, a factor which was an important consideration in applying the test in IDI.
34. Mr Malik also submits that the Defendant's exercise of discretion in this case was unlawful because the Defendant failed to take account of paragraph 320 of the Immigration Rules. I accept, of course, that the paragraph is not referred to, expressly, in the decision letter of 28 March 2012 or any previous decision letter. However, it seems to me that the decision maker must have take account of paragraph 320 in the letter of 28 March 2012. That letter says, in terms, that it would not be "unduly unreasonable" for the Claimant to return home. That conclusion must have been reached with Paragraph 320 well in mind. The paragraph contemplates that an overstayer who returns to his country of origin voluntarily and at his own expense will have to wait for 12 months before making an application for entry into the UK. In my judgment, the Defendant was entitled to reach the conclusion that it would not be unreasonable or unduly unreasonable to require the Claimant to return to Pakistan at his own expense and wait for a year before beginning his attempt to return to the UK if that is what he wished to do.
35. Even if that analysis is not correct and the Defendant did not take account of Paragraph 320 it does not seem to me that this failure renders the decision of 28 March 2012 unlawful. The Defendant had to consider whether there were sufficiently compelling reasons to grant leave to remain. The fact that paragraph 320 would prevent the Claimant from making a successful application for entry into the United Kingdom either at all or until the specified period had elapsed (assuming that the Claimant departed voluntarily at his own expense) could not amount to a compelling reason for the grant of leave to remain either standing alone or taken in conjunction with the other known circumstances in this case. To hold to the contrary would emasculate the effect of Paragraph 320.
36. Mr Malik's next complaint is that the Defendant failed to take account of the decision of the Court of Appeal in EU (Nigeria) & Others v SSHD [2010] EWCA Civ 975. In that case the court was called upon to consider whether a detriment or loss to the community caused by the removal of a foreign national was capable of being relevant to an assessment of the proportionality of removal when Article 8 ECHR was invoked.
37. The leading judgments in EU (Nigeria) were by give by Sir David Keene and Richards LJ. It is possible to discern slight differences of emphasis between the two judgments but, as it seems to me, they both recognise that in an appropriate case it would be proper to give some weight to any loss to the community which would be occasioned by the removal of a foreign national when deciding upon the proportionality of removal.
38. Article 8 does not feature in this challenge. The Claimant's challenge under Article 8 failed at the permission stage. However, Mr Malik submits that a detriment or loss to the community can be a relevant factor not just when considering proportionality under Article 8 but also when the Defendant is determining whether to exercise her discretion to permit a person to remain within the UK. He also submits that a failure to take account of such a relevant factor would render unlawful any decision to refuse leave to remain.
39. The Claimant's role at the Reading Islamic Centre was made clear to the Defendant. His activities at the Centre were described in his solicitor's letter of 14 December 2011 in the following terms:-

"We hereby submit that the Claimant (Applicant) is a person who is performing a holy role at the Reading Islamic Centre as an Imam (Minister of Religion) and he is responsible for leading the daily prayers (5 times a day) at the Centre. Besides this he is also responsible for teaching the young children at the Centre.

It is further submitted that the Claimant is performing this role at the Centre for the past 5 years and the disruption to the worshippers/attendees, to the management and the young children can be imagined if the Claimant is removed from the United Kingdom only for the reason that his application is not covered under the rules (despite of the fact that he has fulfilled all the requirements of the relevant rules and he has scored all the required points satisfactorily).

We hereby enclose detailed signed petitions by the worshippers/attendees (the people who attend for daily prayers) at the Centre and also a signed petition by the parents of the children who attend the Centre for education for your kind consideration."

40. It seems to me to be clear that the Defendant took account of this information in the letter of 28 March 2012. The letter records, in terms, that consideration was given to the evidence contained within the letter of 14 December 2011 and the petitions sent in support. The Defendant concluded:-

"The fact that the refusal of your application and potential removal from the UK would create disruption to worshippers/attendees and to the management of Centre is not a sufficiently compelling reason to exercise discretion, as these factors relate to your employer and your position with that employer (who you do not have permission to work for), rather than personal circumstances relating to you."

41. It seems to me clear, to repeat, that the Defendant took account of the potential loss or detriment to a section of the community should the Claimant's application for leave to remain be refused. The weight to be attached to that issue was for the Defendant to determine.
42. I turn, finally, to what is known as the "near-miss" point. Mr Malik accepts that the Claimant cannot meet the requirements of the Immigration Rules. The Claimant neither has, nor was last granted, entry clearance, leave to enter or remain under any of the categories referred to in paragraph 245HD(b) of the Rules. However, the Claimant does satisfy all other requirements of the Rules: in particular, under the Points Based System the Defendant accepts that the Claimant is entitled to 50 points for sponsorship under appendix A, 10 points for English language under appendix B and 10 points for maintenance under appendix C.
43. Mr Malik submits that the nature and degree of non-compliance with the Immigration Rules must be the starting point in considering whether discretion should be exercised in an individual's favour. The nearer someone is to compliance with the Rules less it can sensibly be said that the discretion to permit him to remain in the United Kingdom should not be exercised in his favour, submits Mr Malik. In a refinement to this argument he submits that the nature and degree of non-compliance will always be a material consideration to be considered by the Defendant and failure to attach adequate weight to it will render a decision irrational.
44. Miss Glass submits that these arguments cannot succeed in the light of the recent decision of the Court of Appeal in Miah and others v Secretary of State for the Home Department [2012] EWCA Civ 261. Stanley Burnton LJ, with whom Lewison and Maurice Kay LJJ agreed, introduced that appeal by explaining that permission to appeal had been given primarily so that the court could consider the so called "near-miss" argument. He described the argument thus:-

"Essentially, the argument is that where an appellant misses satisfying the requirements of the Immigration Rules by a small margin, and contends that his removal from the UK will breach his rights under article 8, the weight to be given to the maintenance of immigration control should be diminished for the purpose of the assessment as to whether his removal from this country should be permitted under article 8(2)."

45. During the course of his judgment he made it clear that the "near-miss" principle was 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. The starting point for the "near-miss" argument is that the rule has not been complied with.
46. Stanley Burnton LJ next considered all the relevant authorities. His review of authorities included a consideration of R (Mongoto) v SSHD [2005] EWCA Civ 1326; R (Rudi) v SSHD [2007] EWCA Civ 1326; R (Pankina) v SSHD [2010] EWCA Civ 719 and MB (Article 8-Near Miss) Pakistan [2010] UKUT 282(IAC).
47. Mongoto and Rudi were not cited in Pankina. It is very doubtful whether they were cited in MB (Article 8-Near Miss) Pakistan. On any view, Mongoto and Rudi are not consistent with Pankina and MB (Article 8-Near Miss) Pakistan. The court in Miah recognised as much and set out to resolve the conflict of authority. Having done so it decided to follow the line of authority represented by Mongoto and Rudi.
48. In Mongoto Laws LJ (with whom the other members of the court agreed) said:-

"23. It is convenient, next, to address a further distinct argument first raised in Mr Hussein's supplementary skeleton argument, dated 5 April 2005, dealing with the Huang case. This argument is based on a Home Office policy announcement made in 2004, described by Mr Hussein as 'the family concession'. The reference in fact goes back to an announcement of October 2003 by the Secretary of State to the effect that, exceptionally, families satisfying a certain specified criteria would be granted indefinite leave to remain outside the Immigration Rules. The essential criteria were that the applicant in the case had applied for asylum before 2 October 2000, and that he had at least one dependent aged under 18, other than a spouse, in the United Kingdom on either 2 October 2000 or 24 October 2003.

24. In this case, as I have said, the Appellant applied for asylum on 30 December 2002. The policy did not apply to him and Mr Hussein did not contend otherwise. He says, however, that the Appellant may derive what he calls 'analogical support' from the policy for his claim that his removal would be disproportionate to the legitimate aim of immigration control.

25. I have to say that in my judgment this is a spurious argument. The Secretary of State is entitled, and this must be elementary, to elaborate a limited policy to assist particular categories of would-be entrants, provided, of course, that the policy is rational and otherwise lawful, as the family concession plainly was. It would be quite wrong for the courts to build expectations approaching enforceable rights on the back of such a policy for the benefit of persons to whom, in terms, the policy did not apply and, it is assumed, was not intended to be applied. For the courts to take such a course would or might offer a wholly illegitimate discouragement to the adoption of humane, but exceptional, policy positions by the Secretary of State. I would reject this part of the appellant's case out of hand."

In Rudi Carnwath LJ (as he then was) considered the "near-miss" principle in the context of an assessment of proportionality under Article 8. He said:-

"28. This argument is, in my view, based on a misconception. The Secretary of State is of course entitled to have a policy. The promulgation of the policy normally creates a legitimate expectation that it would be applied to those falling within its scope unless there is good reason for making an exception. So much is trite law. It is also trite law that the existence of a policy does not excuse the decision-maker from due consideration of the cases falling outside it. However, the law knows no "near-miss principle". There is no presumption that those falling just outside the policy should be treated as though they were within it, or given special consideration for that reason.

29. Authority to that effect, if it is needed, is to be found in Mongoto v Home Secretary [2005] EWCA Civ 751…..

32. In conclusion on this point, I agree respectfully with Ouseley J's summary [the judge at first instance under appeal]

'….I accept there may be cases in which the rationale for a policy may inform the judge of the significance of a particular point; there may be lacunae, but that is very different from treating a policy as the basis for extension by analogy or comparison….there is not a near miss penumbra around every policy providing scope for its extension in practice to that which it did not cover…..'"

49. To repeat, the court in Miah followed Mongoto and Rudi and relied, expressly, upon the passages from those decisions quoted above. It did so having considered contrary views expressed, in particular, by Sedley LJ in Pankina and MB (Article8-Near Miss) Pakistan.
50. As I pointed out to Mr Malik during the course of argument I am bound by the decision in Miah. It is the most recent decision of the Court of Appeal on the "near-miss principle". It considered all the relevant authorities and resolved a conflict in two lines of authority. There is simply no basis upon which I could do other than follow what it says.
51. Perhaps recognising the inevitability of this conclusion Mr Malik sought to persuade me that Miah was distinguishable on the basis that it related to the "near-miss principle" only as it applies in Article 8 cases. I have no doubt that Miss Glass is correct when she submits that Miah is not confined to a discussion of the "near-miss principle" in the context of the Article 8 proportionality assessment. She is correct when she submits that it is equally applicable in a context such as the present. In my judgment no other reading of Mongoto, Rudi and Miah is possible.
52. Mr Malik also sought to argue that the extent to which there had been compliance with the rule was a factor to be considered in the exercise of the Defendant's discretion. I do not rule out the possibility that the extent of compliance with an Immigration Rule may become a factor to be considered when the Defendant is deciding whether compelling circumstances exist which justify the grant of permission to remain in the UK. Cases such as R(Forrester) v SSHD [2008] EWHC 2307 come to mind. However it cannot sensibly be said that the Defendant acted unlawfully in this case simply because she did not conclude that the Claimant's compliance with many parts of the relevant rule constituted a compelling reason either alone or in conjunction with other factors for granting the Claimant leave to remain in the United Kingdom.
53. In my judgment ground 1 fails.

Ground 2

54. Mr Malik submits that section 55 of the 2009 Act was applicable at the time when the decision was made to refuse the Claimant permission to remain within the United Kingdom. He submits that the Defendant was engaged in a function relating to immigration and that, accordingly, she was obliged when discharging that function to have regard to the need "to safeguard and promote the welfare of children who are in the United Kingdom." Mr Malik also submits that it was obligatory for the Defendant to have regard to the guidance which she had issued. The relevant parts of the guidance are quoted at paragraphs 23 and 24 above.
55. It seems clear that section 55 is capable of applying when the Defendant is considering whether or not to exercise her discretion to permit a foreign national to remain within the United Kingdom. Essentially, a concession to that effect was made before the Court of Appeal in AJ v Secretary of State for the Home Department [2011] EWCA Civ 1081.
56. Ordinarily, of course, the child or children whose welfare is to be considered will have a family connection to the person who is the subject of the decision in question. In this case, however, the children in question have no family relationship with the Claimant; they are children whom the Claimant teaches and leads in prayer at the Reading Islamic Centre.
57. The words of section 55 are extremely wide. The obligation of the decision-maker discharging any function in relation to immigration is to have regard to the need to safeguard and promote the welfare of children who are in the United Kingdom. At first blush, therefore, the Defendant in this case should have had regard to the need to safeguard and promote the welfare of the children who attend the Reading Islamic Centre when she made her decision in relation to the Claimant.
58. Miss Glass' primary submission is that the Defendant did take account of the need to safeguard and promote the welfare of the relevant children when making the decision in this case. Alternatively, she submits that there was no obligation upon the Defendant to have regard to that need. As a further alternative she submits that if the Defendant wrongly failed to have regard to the obligation under section 55 the decision in this case would, inevitably, been the same had the Defendant applied section 55.
59. I do not consider that the Defendant considered the need to safeguard and promote the interests of the children at the Reading Islamic Centre when reaching the decision which was communicated by the letter of 28 March 2012. The relevant parts of the decision letter are sent out at paragraph 13 above. I simply do not see how this passage constitutes a consideration of the duty under section 55.
60. Is Miss Glass right when she says that the section is not applicable in the circumstances of this case? There is a good deal to recommend the stance which Miss Glass adopts. How was the Defendant to assess the impact of the decision to refuse the Claimant leave to remain upon a class of children of whom, essentially, she knew nothing save for the fact that they attended a particular Islamic Centre and they were taught at that Centre by the Claimant? I appreciate that information was provided to the Defendant to the effect that the children's parents were happy with the leadership and teaching which the Claimant provided to their children. However, it could not sensibly be inferred from the very limited information which was provided to the Defendant in this case that the Claimant's skills were not easily replaceable within a comparatively short time by an alternative Imam. The reality is that if and when the Claimant ceases to teach at the Reading Islamic Centre the children at the Centre will be in no different position to the many thousands of children up and down the country who experience a change of teacher part way through their education.
61. With considerable hesitation I have reached the conclusion that the words of section 55 of the 2009 Act did require the Defendant to have regard to the need to safeguard and promote the welfare of the children taught by the Claimant when making her decision about whether the Claimant should be granted leave to remain. To hold otherwise, would be to restrict the ambit of section 55 in a manner not easily consistent with the words of the section. That said, in my judgment, upon the information available to the Defendant in this case she would have been entitled, lawfully, to conclude and in my judgment would have concluded that a decision to refuse the Claimant's application for leave to remain would not impact adversely in any way upon the welfare of the children in question. In those circumstances I am completely satisfied that had the Defendant properly taken account of section 55 of the 2009 Act her decision would have been identical to that which she made. Accordingly it would not be appropriate to quash the decision made by the Defendant in this case.
62. I have reached the conclusion that this claim must fail.