Behary & Anor, R (on the application of) v Secretary of State for the Home Department

Factual and Procedural Background

The appeals before the court concern the interpretation of the term "established presence" in Appendix C to the Immigration Rules. The appellants were lawfully in the United Kingdom under Tier 4 General (Student) leave but applied for further leave after their existing leave had expired. The Home Office refused their applications on the basis that they did not have "current leave," a prerequisite for establishing "established presence" and thus qualifying for a lower financial threshold. As a result, the appellants lost their right of appeal to the First-tier Tribunal, leading to judicial review proceedings. One appellant’s case also involved arguments related to the welfare of children under section 55 of the Borders, Citizenship and Immigration Act 2009, and another appellant raised a ground concerning the Home Office's failure to consider exercising discretion to grant leave outside the Immigration Rules.

Legal Issues Presented

1. What is the proper interpretation of the term "established presence" in Appendix C to the Immigration Rules, specifically the meaning of "current leave"?
2. Whether the Home Office failed to properly consider the welfare of children under section 55 of the Borders, Citizenship and Immigration Act 2009 in refusing leave to remain.
3. Whether the Home Office failed to consider and exercise its residual discretion to grant leave to remain outside the Immigration Rules.

Arguments of the Parties

Appellants' Arguments

• The appellants argued that the term "current" in the definition of "established presence" should be interpreted to mean "recent" or "latest," allowing applications made after expiry of prior leave to qualify.
• In the case involving children, it was argued that the Home Office should have granted leave to the children based on their long residence in the UK and that the decision failed to properly consider the children's welfare as required by section 55 of the 2009 Act.
• One appellant contended that the Home Office failed to consider exercising discretion to grant leave outside the Immigration Rules, despite the application being a near miss.

Respondent's Arguments

• The Home Office maintained that "current leave" means leave valid at the date of application, and since the appellants applied after expiry, they did not have an established presence.
• The Home Office argued that section 55 obligations were met through guidance issued to officials and that no evidential basis was provided to require a separate welfare assessment for the children.
• Regarding discretion, the Home Office submitted there was no obligation to consider leave outside the Rules absent an explicit request, and the circumstances did not engage a public law duty to do so.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Behary [2013] EWHC 3575 (Admin)	Rejected the argument that "current" means "recent" or "latest" in the context of leave to remain.	The court followed this reasoning, holding that "current leave" means leave valid at the date of application.
Ullah [2015] EWHC 337 (Admin)	Confirmed the interpretation of "current" as requiring valid leave at the application date.	The court agreed with the decision, dismissing the appellant’s similar argument.
Mahad v Entry Clearance Officer [2009] UKSC 16	Established that Immigration Rules should be construed sensibly according to natural meaning, excluding reliance on Immigration Directorate Instructions (IDI) or internal guidance.	The court applied this principle, refusing to rely on extraneous guidance to interpret "current leave."
Adedoyin v Secretary of State for the Home Department [2010] EWCA Civ 773	Permitted limited use of extrinsic materials where genuine ambiguity in the Rules exists.	The court found no genuine ambiguity in the term "current," so did not apply this exception.
Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568	Adopted a similar approach to Adedoyin regarding ambiguity and use of extrinsic materials.	Supported the court’s rejection of reliance on guidance inconsistent with the Rules.
R (Singh and Khalid) v Secretary of State for the Home Department [2015] EWCA Civ 74	Addressed the accuracy of National Archive versions of Immigration Rules.	The court noted the potential inaccuracies of archived guidance, cautioning against reliance on outdated materials.
Secretary of State for the Home Department v Rodriguez [2014] EWCA Civ 2	Considered the construction of permission to appeal orders and whether grounds were limited.	The court resolved ambiguity in favor of the appellant regarding the scope of permission to appeal.
Secretary of State for the Home Department v KG (India) [2016] EWCA Civ 477	Rejected the legal principle that a "near miss" in complying with Immigration Rules should be overlooked.	The court applied this precedent to dismiss the "de minimis" argument raised by the appellant.

Court's Reasoning and Analysis

The court began by addressing the central issue of the meaning of "established presence," focusing on the interpretation of "current leave" within the Immigration Rules. It rejected the appellants’ argument that "current" should be read as "recent" or "latest," affirming that "current leave" means valid leave at the date of application. This interpretation was consistent with the natural and ordinary meaning of the word and was supported by prior case law. The court emphasized that Immigration Rules should be interpreted sensibly and not through reliance on internal guidance or archived materials, especially when such materials were inconsistent with the Rules or potentially outdated.

Regarding the welfare of children under section 55 of the Borders, Citizenship and Immigration Act 2009, the court found that the Home Office had discharged its statutory duty by issuing guidance to officials. The appellants had failed to provide evidence to support a distinct claim based on the children’s welfare, and the Home Office was not obliged to speculate or pursue unsubstantiated claims. The court also rejected the argument that the children’s long residence in the UK created an automatic right to remain, noting that the relevant Rules required both continuous residence and that it would not be reasonable to expect the child to leave the UK.

On the issue of discretion to grant leave outside the Rules, the court acknowledged the existence of a residual discretion but held that there was no obligation to consider or exercise this discretion absent an explicit request. The appellant’s failure to apply for leave outside the Rules, coupled with the absence of exceptional circumstances, meant no public law duty arose for the Home Office to consider such discretion. The court further rejected the "de minimis" or "near miss" argument, confirming recent authority that near compliance with the Rules does not warrant overlooking non-compliance.

Holding and Implications

The court DISMISSED THE APPEALS.

The decision confirms that for the purpose of "established presence" under the Immigration Rules, applicants must have valid ("current") leave at the date of application; applications made after expiry of leave do not qualify. It reinforces that statutory duties under section 55 of the Borders, Citizenship and Immigration Act 2009 require consideration of children’s welfare only when properly raised and supported by evidence. The court clarified that the Home Office is not required to consider discretionary leave outside the Rules absent an explicit request or exceptional circumstances. No new precedent was established beyond reaffirming existing principles, and the direct effect is the refusal of the appellants’ applications and dismissal of their appeals.