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Court of Appeal finds £22.15 annual shortfall does not qualify as de minimis

Court of Appeal finds £22.15 annual shortfall does not qualify as de minimis

The extension application of a Tier 2 skilled worker whose annual salary was found to be £22.15 per year short of the specified requirement was refused. The First-tier and Upper Tribunal allowed her appeal on the basis that the shortfall was so small it should be disregarded under the de minimis principle. The Court of Appeal overturns these decisions on the basis that the rule is a “bright line” one that is either satisfied or not; it was not.

The First-tier Tribunal judge may well have resorted to the de minimis principle, as the Upper Tribunal judge said, because of his view that the respondent’s application (though falling marginally short of the threshold for appropriate pay) was otherwise a meritorious one. But if the First-tier Tribunal judge took that approach, in my judgment he was wrong to do so. As I have already said, this was to ignore the plain and ordinary meaning of the rule which the respondent was required to comply with in order to achieve the requisite number of points. More generally however, this failed to have regard to the importance of certainty and consistency which underpins the effective and fair operation of the Points Based Scheme as between one applicant and another; and the requirement, of which those attributes are an important part, that the Scheme must be workable. These considerations would in my judgment inevitably be undermined by an ad hoc application of the de minimis principle, by the individual case worker (or Immigration Judge) as the case may be.

Source: The Secretary of State for the Home Department v KG (India) [2016] EWCA Civ 477 (23 May 2016). See also recent blog post De minimis principle does not apply to Immigration Rules, holds President concerning the case of Chau Le (Immigration Rules – de minimis principle) Vietnam [2016] UKUT 186 (IAC).

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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