Behary, R (On Application) v Secretary of State for the Home Department

Factual and Procedural Background

The Plaintiff, a citizen of Mauritius, arrived in the United Kingdom in May 2005 with her family and was initially granted visitor leave. Subsequently, she obtained leave to remain as a student under the Tier 4 (General) Student category, with her family granted matching leave. Her leave expired on 29 November 2011. The Plaintiff posted an application for further leave on 30 November 2011, received by the Secretary of State on 1 December 2011. The Secretary of State refused the applications on 1 March 2012 on the basis that the Plaintiff could not demonstrate sufficient funds and lacked an "established presence" as her leave had expired before the application was made. The applications of the Plaintiff’s family were also refused. The Plaintiff’s representatives requested reconsideration citing illness and postal closure as reasons for the late application, which was refused on 21 March 2012.

The Plaintiff subsequently lodged a judicial review claim on 18 July 2012 challenging these decisions. Permission to apply for judicial review was granted on the ground that the Secretary of State failed to comply with her statutory duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the welfare of the Plaintiff’s children. The Secretary of State issued a supplementary decision on 18 September 2013 addressing the section 55 duty, concluding that immigration control considerations outweighed the impact on the family. The Plaintiff sought to amend the claim to challenge this decision as well.

Legal Issues Presented

1. Whether the Secretary of State lawfully complied with her duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the welfare and best interests of the Plaintiff's children when refusing leave to remain.
2. Whether the Plaintiff met the requirements of the Immigration Rules, specifically whether she had an "established presence" as a Tier 4 student at the time of her application.
3. Whether the Secretary of State lawfully exercised her discretion outside the Immigration Rules in refusing to grant leave to remain despite the late application.

Arguments of the Parties

Appellant's Arguments

• The Secretary of State failed to discharge her statutory duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to consider the best interests of the Plaintiff's children before making the March 2012 decisions.
• The Plaintiff argued that the application was only one day late and, applying the principle de minimis non curat lex, the delay should be disregarded, meaning the Plaintiff had "current leave" and thus an "established presence" under the Immigration Rules.
• The Plaintiff contended that the word "current" in the Rules was ambiguous and could be interpreted flexibly to include the "most recent" leave, supporting her claim to established presence.
• The Secretary of State unlawfully fettered her discretion by failing to properly consider the Plaintiff's request for leave outside the Rules based on compassionate grounds, including the illness and postal closure.
• The decision of 18 September 2013 was unlawful as it inadequately considered the best interests of the children, particularly in light of the length of residence of one child and relevant case law.

Respondent's Arguments

• The Secretary of State accepted that section 55 duty was not considered in the March 2012 decisions but argued it was not triggered at that time as the Plaintiff had not relied on her children’s interests as a basis to remain.
• Upon the Plaintiff raising the children’s interests in judicial review proceedings, the Secretary of State invited submissions and properly considered the duty in the September 2013 decision.
• The Secretary of State argued the principle de minimis was not applicable because the date of application is a fundamental bright line rule essential to immigration control and certainty.
• The natural and ordinary meaning of "current" leave in the Immigration Rules is "existing" or "present" leave, not past or expired leave, and the Secretary of State’s interpretation was correct.
• The Secretary of State properly exercised discretion outside the Rules and reasonably concluded that the reasons for the late application were not sufficiently compelling or compassionate to warrant granting leave.
• The consideration of the children’s interests in the September 2013 decision was lawful, taking into account the limited information available, relevant case law, and the balance between family life and immigration control.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R(AJ) v SSHD [2011] EWCA Civ 1081	Section 55 duty applies to all immigration functions, not limited to appealable removal decisions.	Supported the conclusion that the Secretary of State's section 55 duty applied to refusals of leave to remain, though only triggered when children’s interests are relied upon.
R(TS) v SSHD and Northamptonshire CC [2010] EWHC 2614 (Admin)	Section 55 duty is mandatory and requires a proper decision-making process with regard to children's welfare.	Used to explain the nature and scope of the duty under section 55 and its application to immigration decisions affecting children.
ZH (Tanzania) v SSHD [2011] UKSC 4	Best interests of the child must be a primary consideration in proportionality assessments under Article 8 ECHR.	Referenced in the Secretary of State’s 18 September 2013 decision to balance children’s interests against immigration control.
MD (Jamaica) and GE (Jamaica) v SSHD [2010] EWCA Civ 213	De minimis principle in immigration law; short unlawful residence periods not automatically disregarded.	Distinguished and applied to reject Plaintiff’s argument that a one-day delay should be disregarded for established presence.
Miah and Others v SSHD [2012] EWCA Civ 261	Clarification of the de minimis principle versus 'near-miss' principle in immigration context.	Supported rejection of de minimis argument where delay was not trivial in the context of the relevant immigration rule.
Mahad and Others v Entry Clearance Officer [2009] UKSC 16	Interpretation of Immigration Rules: Rules are statements of administrative policy to be construed sensibly.	Applied to reject Plaintiff’s construction of "current" leave as including expired leave.
R (Thebo) v ECO [2013] EWHC 146 (Admin)	Residual discretion outside the Rules must not be an empty gesture.	Supported that Secretary of State properly exercised discretion and refusal was not irrational.
Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374	Threshold for irrationality in judicial review.	Applied to assess the rationality of the Secretary of State’s discretion decision.
R (Tinizaray) v SSHD [2011] EWHC 1850 (Admin)	Duty to consider children’s wishes and feelings in immigration decisions.	Considered but distinguished as not establishing a general duty to inquire in all cases.
SS (Nigeria) v SSHD [2013] EWCA Civ 550	Limits on Tribunal’s duty to make inquiries regarding child’s interests.	Supported limited scope of inquiry required of decision makers in children’s best interests.
R (Nirula) v First-tier Tribunal (Asylum and Immigration Chamber) [2012] EWCA Civ 1436	Binding effect of Court of Appeal decisions on de minimis principle application.	Distinguished by the Court in rejecting Plaintiff’s reliance on de minimis principle in this case.

Court's Reasoning and Analysis

The Court analyzed the statutory duty under section 55 of the Borders, Citizenship and Immigration Act 2009, emphasizing that it applies broadly to immigration functions but is only triggered when the decision-maker knows or ought to know that the decision may affect children whose interests are relied upon. The Court found that the Secretary of State did not unlawfully fail to consider the children's interests in the March 2012 decisions as the Plaintiff had not raised those interests at that stage. The subsequent decision in September 2013 properly addressed the section 55 duty based on the judicial review claim.

Regarding the Immigration Rules, the Court interpreted "current leave" in the phrase "current entry clearance, leave to enter or leave to remain" as meaning existing or present leave, not expired leave. The Court rejected the Plaintiff's argument that a one-day late application should be disregarded under the de minimis principle, emphasizing the importance of certainty and bright-line rules in immigration control. It held that the principle could not be applied to override the Rules and that discretion outside the Rules exists to mitigate harshness but was lawfully exercised against the Plaintiff.

The Court further held that the Secretary of State lawfully exercised discretion outside the Rules, considering the Plaintiff’s representations and concluding that the reasons for the late application were not sufficiently compelling or compassionate. The Court found no irrationality or unlawfulness in the Secretary of State’s refusal to exercise discretion in the Plaintiff’s favour.

On the best interests of the children, the Court found that the Secretary of State’s consideration in the September 2013 decision was lawful and adequate given the limited information, relevant case law, and the balance between immigration control and family life. The Court rejected submissions that the Secretary of State should have conducted further inquiries or given greater weight to the children’s length of residence.

Holding and Implications

The application for judicial review is dismissed.

The Court held that the Secretary of State did not act unlawfully in refusing the Plaintiff’s application for leave to remain, properly interpreted the Immigration Rules, and lawfully exercised discretion outside the Rules. The section 55 duty was not engaged at the time of the initial decisions as the children’s interests were not relied upon, and the subsequent consideration of that duty was adequate. The dismissal means that the Secretary of State’s decisions stand, and the Plaintiff remains without leave to remain. No new legal precedent was established; the decision affirms the proper application of existing statutory duties and Immigration Rules in this context.