“It is uncontroversial that Immigration Rules evidence and express the Secretary of State’s immigration policy. Thus, an individual’s right under Article 8(1) falls to be balanced against the requirements of Rules. There is an inverse relationship between the degree to which there is compliance with the Rules and the immigration policy imperative which demands that unsuccessful applicants be removed: the more the applicant effects substantial compliance with the Rules, the less it can be said that immigration policy requires his removal.”
“6. In this country, successive administrations over the years have endeavoured, in Immigration Rules and administrative directions revised and updated from time to time, to identify those to whom, on grounds such as kinship and family relationship and dependence, leave to enter or remain should be granted. Such rules, to be administratively workable, require that a line be drawn somewhere. Thus, for example, rule 317, relevant to the claim of Mrs Huang, makes provision for the admission of a parent, grandparent, or other dependent relative of any person present and settled in the United Kingdom if (among other grounds) she is a mother or grandmother who is a widow aged 65 years or over. Mrs Huang does not qualify under this head since she was not, when the decision was made, aged 65 or over and she is not a widow. Such a rule, which does not lack a rational basis, is not to be stigmatised as arbitrary or objectionable. But an applicant's failure to qualify under the Rules is for present purposes the point at which to begin, not end, consideration of the claim under article 8. The terms of the Rules are relevant to that consideration, but they are not determinative.” … “16. The authority will wish to consider and weigh all that tells in favour of the refusal of leave which is challenged, with particular reference to justification under article 8(2). There will, in almost any case, be certain general considerations to bear in mind: the general administrative desirability of applying known rules if a system of immigration control is to be workable, predictable, consistent and fair as between one applicant and another; the damage to good administration and effective control if a system is perceived by applicants internationally to be unduly porous, unpredictable or perfunctory; the need to discourage non-nationals admitted to the country temporarily from believing that they can commit serious crimes and yet be allowed to remain; the need to discourage fraud, deception and deliberate breaches of the law; and so on. … The giving of weight to factors such as these is not, in our opinion, aptly described as deference: it is performance of the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice. That is how any rational judicial decision-maker is likely to proceed. ….”
“When assessing proportionality under Article 8, the decision-maker wrongly failed to take into account the extent to which the claimant fell within "the spirit or rationale" of the Concession, even if not ‘within its precise letter’.”
“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 will 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 the policy does not excuse the decision-maker from due consideration of 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 . …. (paras 24-5). … 32. In conclusion on this point, I agree respectfully with Ouseley J's summary: ‘… I accept that 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…’ (para 79)” ‘… I accept that 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…’ (para 79)”
“45. There appears to me, in this situation, to be no escape from the proposition that in exercising her powers, whether within or outside the rules of practice for the time being in force, the Home Secretary must have regard and give effect to applicants’ Convention rights. This will mean in most cases evaluating the extent and quality of their family and private life in the United Kingdom and the implications, both for them and for the United Kingdom, of truncating their careers here. 46. That in turn will require consideration of the significance of the criteria by which their eligibility has been gauged and found wanting. It is one thing to expect an applicant to have the necessary academic and linguistic qualifications: here a miss is likely to be as good as a mile. It is another for an applicant to fall marginally or momentarily short of a financial criterion which in itself has no meaning: its significance is as a rough and ready measure of the applicant's ability to continue to live without reliance on public funds. Having£800 in the bank, whether for three continuous months or simply at the date of application, is no doubt some indication of this; but people who are able to meet the test may fall on hard times after obtaining indefinite leave to remain, and others who fail it would, if allowed to remain, never become a charge on public funds. The Home Office has to exercise some common sense about this if it is not to make decisions which disproportionately deny respect to the private and family lives of graduates who by definition have been settled here for some years and are otherwise eligible for Tier 1 entry. If the Home Secretary wishes the rules to be blackletter law, she needs to achieve this by an established legislative route. 47. So long as the rules are what theImmigration Act 1971 says they are, they must in my judgment be operated in conformity with s.6 of the Human Rights Act.