Nasim v SSHD (Article 8) [2014] UKUT 00025 is an appeal by a group of Tier 4 migrants whose applications for Post-Study Work visa were refused for the reason that their degree certificates only became available after the route was formally closed in April 2012.
In this context, the Upper Tribunal considered arguments based on the appellants’ right to private life established in the UK and the so called “near-miss” principle. In other words the tribunal had to decide whether the appellants could succeed on the ground that failure to comply with the requirements of the rules was marginal, non-essential, and outside the Appellants’ control.
The tribunal found against the migrants and passed a very harsh judgment that will have repercussions in a wide range of PBS appeals. Generally speaking, the judgment more or less removes the private life ground from the range of arguments available to migrants with limited leave to remain.
Until now lawyers have been arguing on behalf of their clients that their removal from the UK would not be proportionate to any legitimate aim of the Home Office, such as economic wellbeing of the country or robust and credible immigration control. In this case the tribunal ruled that the requirement to leave the UK posed to a temporary migrant was not of sufficient gravity as to engage the proportionality assessment.
The fact that the rule was only missed by a margin was irrelevant.
The appellants’ impeccable immigration history, good character and promising career prospects did not carry the day. Private life would not afford migrants any additional scope for staying in the UK beyond what is permissible under the immigration rules.
As the rules are both convoluted and inflexible, there is enormous scope for injustice or very harsh decision making which may not be remedied on appeals.
In the current climate it is most important to make your application indefeasible from the start. Do not trust chances, contact lawyers for help.
