The Court of Appeal has in the case of Miah v Secretary of State for the Home Department [2012] EWCA Civ 261 rejected the idea of there being a free standing ‘near miss’ argument in immigration cases where the applicant falls just short of the requirements of the rules.

As in another Court of Appeal case also out last week, to which the blog will shortly return, Zane Malik appeared for the Appellant. The Home Office obviously took the case very seriously as they briefed First Treasury Counsel Jonathan Swift QC against him.

Stanley Burton LJ, with whom Maurice Kay and Lewison LLJ agreed, comprehensively rejected the proposition that the extent of non compliance with an immigration rule weakens the requirements of immigration control when considering Article 8 ECHR human rights arguments:

25. …A rule is a rule. The considerations to which Lord Bingham referred in Huang require rules to be treated as such. Moreover, once an apparently bright-line rule is regarded as subject to a Near-Miss penumbra, and a decision is made in favour of a near-miss applicant on that basis, another applicant will appear claiming to be a near miss to that near miss. There would be a steep slope away from predictable rules, the efficacy and utility of which would be undermined.

26. For these reasons, I would dismiss the appeal in relation to the Near-Miss argument. In my judgment, there is no Near-Miss principle applicable to the Immigration Rules. The Secretary of State, and on appeal the Tribunal, must assess the strength of an Article 8 claim, but the requirements of immigration control is not weakened by the degree of non-compliance with the Immigration Rules.

What the judgment does not say is that the extent of non compliance is irrelevant to the assessment of Article 8 proportionality where there is an Article 8 case to be considered. At paragraph 27 Stanley Burton LJ goes on: “This is not to say that the conduct of an applicant is irrelevant in the assessment of an Article 8 claim.”

Henry Oliver of the Mulberry Finch blog has written about the judgment in rather firm tones on the UK Human Rights Blog: “The argument made on behalf of Mr Miah is an aberration of legal positivism.” In reality it does not look like Counsel actually used the phrase ‘near miss’, nor for that matter was it a phrase that Sedley LJ adopted himself in MB (Article 8 – near miss) Pakistan [2010] UKUT 282 (IAC), and it should be noted that permission was granted in Miah for another reason as well, which relates to section 3C leave, but that this is to be considered by the Supreme Court in April. It is difficult to detect any real conflict in the authorities cited by Stanley Burton LJ. The idea of a ‘near miss argument’ looks like something of a straw man, in reality.

The judgment in Miah, as can be seen from paragraph 27, is not and cannot be an authority for the idea that the extent of non compliance with the rules is totally irrelevant to the outcome of a human rights case. For example, it would be absurd to suggest that where a spouse is applying for leave to remain from inside the United Kingdom without possessing current leave of the required kind — and therefore does not meet the requirements of the rules — that his or her case is unaffected by whether he or she also meet the maintenance and accommodation requirements of the rules. If the couple can show they are married, the relationship is genuine and subsisting, they have adequate income and accommodation, the foreign spouse meets the language requirements and so on, they are obviously in a stronger position than otherwise. One only has to look at the Supreme Court judgment in Chikwamba to see an example of this in action, where the fact that the couple did satisfy the substantive but not technical requirements of the rules was clearly relevant to the outcome:

46. No one apparently doubts that, in the longer term, this family will have to be allowed to live together here. Is it really to be said that effective immigration control requires that the appellant and her child must first travel back (perhaps at the taxpayer’s expense) to Zimbabwe, a country to which the enforced return of failed asylum-seekers remained suspended for more than two years after the appellant’s marriage and where conditions are “harsh and unpalatable”, and remain there for some months obtaining entry clearance, before finally she can return (at her own expense) to the UK to resume her family life which meantime will have been gravely disrupted? Surely one has only to ask the question to recognise the right answer.

It is, however, surely correct to say that a ‘near miss’ situation does not create any free standing human rights or other case. That is the ratio of Miah, along with Mongoto and Rudi, in which it was suggested that an otherwise non existent basis to remain could be created out of a ‘near miss’ situation.