Personal Immigration

Miah and others v Secretary of State for the Home Department [2012] EWCA Civ 261

In this case, the Court of Appeal discussed whether or not there is a 'near miss principle' in Article 8 cases.

People refused leave to remain in the country due to not meeting the requirements of the Immigration Rules often argue on appeal that their removal would breach their human right to respect for private life. Since 2010, an increasingly common argument has been that if someone nearly meets the requirements of the Rules but has fallen just short, it would be disproportionate to remove them, and so a breach of Article 8. This approach can be very useful, for example, for appellants under the Points Based System whose bank accounts fell a few pence below the required balance for a short time.

In Miah, the Court of Appeal stated that there is no near miss principle, and that the previous case law that suggested there was is not binding because the statements in question weren't part of the ratio decidendi – the reasons why the case was decided the way that it was. At first glance, this appears to be bad news for appellants who nearly meet the Immigration Rules but still fall just short. However, a careful reading indicates that the consequences are not actually as far reaching as that.

To understand the implications of Miah, it is essential to appreciate what Article 8 involves. To win under this Article, an appellant must show that removing them from the UK would be disproportionate to the Home Secretary's aim in removing them. Apart from in cases about the deportation of criminals, the aim will almost always be the economic wellbeing of the country through the maintenance of effective immigration control. In simple terms, assessing proportionality is a balancing act; the court must decide how much weight is to be placed on the Home Secretary's aim, and how much weight is to be placed on the reasons cited for not removing the appellant. If the appellant's reasons carry more weight, then removing them would be disproportionate and would breach Article 8.

In Miah, the main appellant fell just short of meeting the Immigration Rules; it was therefore a 'near miss' case. He argued that the near miss meant that less weight should be placed upon the Home Secretary's aim of immigration control. The Court of Appeal rejected this argument and in doing so said that there is no 'near miss' principle.

However, this does not mean that a near miss can never be relevant to an Article 8 case. As explained above, there are two sides to the proportionality balancing act – the Home Secretary's aim and the appellant's interests. The Court of Appeal discussed the first of these, but not the second. It is therefore still possible to argue that, even if a near miss does not reduce the weight to be attached to immigration control, it may increase the weight to be attached to the interests of the appellant. This may seem just a case of semantics, but it is in fact a very important distinction in practice. All things being equal, someone who complies with some of the Rules that the Home Office wants them to comply with surely has a better claim to stay in the UK than someone who complies with none of them.

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