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De minimis principle does not apply to Immigration Rules, holds President

De minimis principle does not apply to Immigration Rules, holds President

A student was for 20 days a total of £11.68 short of the required funds of £2,040, which were required to be held for 28 days continuously. In percentage terms, that would be a shortfall of 0.57%. Taking a hard line, President McCloskey holds:

The de minimis principle is not engaged in the construction or application of the Immigration Rules. Properly analysed, it is a mere surrogate for the discredited “near miss” or “sliding scale” principle.

The appeal is therefore dismissed and the student sent packing. The  case is Chau Le (Immigration Rules – de minimis principle) Vietnam [2016] UKUT 186 (IAC).

How this squares with the judgment of the Court of Appeal in MD (Jamaica) and GE (Jamaica) v SSHD [2010] EWCA Civ 213 is a bit of a mystery. In this case Lord Dyson said

Finally, I see nothing absurd in giving the rule its plain and ordinary meaning. The case of the applicant who submits his application one day late is catered for by an application of the principle de minimis non curat lex (the law is not concerned with very small things).

Arguably this was in fact part of the ratio decidendi. The President considers this case and seems to just find that it was wrongly decided, which is a rather bold step.

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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