R (Behary) v Secretary of State for the Home Department  EWHC 3575 (Admin); (2013) PLLR 132
Immigration - Leave to remain - Children - Best Interests - Discretion
The Defendant was not required to consider the best interests of children in the UK where an application had neither expressly nor impliedly relied upon their interests as a basis for seeking leave to remain.
20 November 2013
(1) Sandra Behary, the Claimant, was a Mauritanian citizen who was given leave to remain as a student until 31 October 2006. On 13 April 2010, she was granted leave to remain as a Tier 4 (General) Student. Her husband and daughter were granted matching leave to remain, which expired on 29 November 2011. The Claimant had a son in October 2007, who has leave in line with his mother. The Claimant was refused further leave to remain as a student on 1 March 2012, on the basis that she could not demonstrate that she had the funds required by Appendix C of the Immigration Rules.
(2) The Defendant had concluded that as the Claimant's extension application had been made (one day) after the expiry of her leave to remain, she could not demonstrate that she had an established presence studying in the UK (as per paragraph 14, Appendix C of the Immigration Rules'), as she did not have ‘current leave' to remain. The Claimant was therefore required to demonstrate a higher level of funds to meet maintenance requirements of £20,500. The Claimant had around £12,700 at that point.
(3) The Claimant sought the Defendant to reconsider her application, on the basis that it had been made late due to her being very ill and the post office being closed on 28 November 2011. By letter dated 21 March 2012, the Defendant confirmed her earlier decision.
(4) By this challenge, the Claimant raised three grounds:
a. The Defendant's decisions were unlawful because they failed to have due regard to ‘the need to safeguard and promote the welfare of children who are in the United Kingdom', namely taking into account the best interests of the Claimant's son and daughter as required by section 55 of the Borders, Citizenship & Immigration Act 2009 (‘the BCI');
b. The decisions were not lawful, because properly interpreted, the Claimant met the requirements of the Rules due to her having ‘current' leave as a Tier 4 student and an established presence studying in the UK. The Claimant's contention was that the de minimis principle applied, and as a consequence, the application was made in time and the Claimant's leave had continued.
c. The Defendant's decisions were unlawful because she failed to exercise her discretion outside the Rules.
(5) The Defendant subsequently issued supplementary decisions on 31 July 2013 and 18 September 2013 arising from the allegations concerning the best interests of the Claimant's children. The Claimant's grounds of challenge were later amended to include the allegation that the Defendant's supplementary decisions contained an inadequate consideration of the best interests of her children's interests. It was also argued that the Defendant had failed to consider that one of the children had lived in the UK for more than 7 years, and it was the Defendant's own policy to grant leave to families who had children who have lived in the UK for at least 7 years.
(6) HELD: The Claimant's application for leave had been wholly and solely based on her status as a student, and had not referred to the interests of her children. The interests of her children had only been raised as an issue once judicial review proceedings had begun. In the absence of any reliance upon the children's interests, although the Defendant knew that the children existed, there could not be said to be a duty to consider or speculate on their interests.
(7) The Court did not think that it could have been the intention of Parliament to require the Defendant consider the best interests of a child where those interests were not expressly or impliedly relied upon in an application. There was therefore no unlawful decision in March 2012 based upon non-compliance with a duty under section 55 of the BCI Act 2009.
(8) The Court rejected the submission that consideration of the best interests of the children had been unlawful. The Defendant had only limited information available to her, but took all that which was available into account. The Defendant had noted that there was no evidence that the children would be unable to access and resume education in Mauritius. There was therefore held to be no basis for concluding that the Defendant's decision was irrational or otherwise unlawful. Furthermore, there was held to be no evidence that a child's seven years residence has the effect of a ‘trump card'.
(9) Ground 1 was thus rejected in relation to both the challenges to the March and the September 2013 decisions.
(10) The Court accepted that the de minimis principle could be applied in the application of statutory provisions and the Immigration Rules. However, the principle was held not to assist the Claimant in this case. The issue was whether the Claimant made an application by a certain date, which she did not. The timing of an application was held to be a fundamental part of administration which required a ‘bright line' rule. The importance of certainty and the need for a bright line rule prevented the application of the de minimis principle.
(11) The Court stated that the rule was clear an unambiguous, and the word current meant ‘existing' or ‘present' entry clearance or leave. The Defendant therefore did not err in finding that the Claimant did not have an established presence within the definition set out in paragraph 14 of Appendix C, and that the maintenance requirements were not fulfilled.
(12) In relation to the Defendant's exercise of her discretion, the Claimant failed to demonstrate that the refusal to grant leave outside the Rules was unlawful. The threshold of irrationality is high and that the application was one day out of time was not a sufficient factor to demand that discretion be exercised. The Claimant's third ground of challenge was thus held to fail.
(13) The application for judicial review was dismissed.
- - Grounds.
- - Duty independent of Article 8 claim.
 - Application solely as student.
 - No duty where not relied upon.
 - Parliamentary intention.
 - March decisions not unlawful.
 - Consideration of interests lawful.
 - Took into account relevant information.
 - Supplementary decision lawful.
 - Seven year residence.
 - De minimis.
 - Bright line rule.
 - Need for certainty.
 - Ground two rejected.
 - Meaning of current.
 - No established presence.
 - Ground two rejected.
 - Lawful refuse exercise discretion.
- - Conclusion ground three.
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