By Thomas Hill – Immigration Barrister
Discretion is a phrase that crops up steadily in immigration legislation: candidates and practitioners will observe its look in every part from Dwelling Workplace decision-letters and policy documents to judgments of the Tribunals and the Senior Courts. Usually, it’s utilized in its unusual sense to imply the liberty to choose in a selected state of affairs. In lots of circumstances, Dwelling Workplace decision-makers may have a discretion as to the plan of action they take – which means they need to take note of all of the related information of the case earlier than making their very own resolution. This stands in distinction to different conditions, the place the legislation dictates that they should observe a selected plan of action, or come to a selected resolution.
On this put up we’ll contemplate a wide range of conditions the place discretion is to be exercised, and what the legislation says about the way it should be exercised.
Discretion within the Immigration Guidelines and Dwelling Workplace steering
The Immigration Guidelines include quite a few provisions that require the Dwelling Workplace caseworker assessing an immigration software to train discretion.
One instance is paragraph 9.7.1., which states, “An application for entry clearance, permission to enter or permission to stay may be refused where, in relation to the application, or in order to obtain documents from the Secretary of State or a third party provided in support of the application: (a) false representations are made, or false documents or false information submitted (whether or not relevant to the application, and whether or not to the applicant’s knowledge); or (b) relevant facts are not disclosed.”
The usage of the time period “may be refused” signifies that the caseworker should train their discretion in deciding whether or not to refuse the appliance on this foundation.
Distinction this with paragraph 9.7.2., which states, “An application for entry clearance, permission to enter or permission to stay must be refused where the decision maker can prove that it is more likely than not the applicant used deception in the application.” Right here, the phrase “must” signifies that it is a necessary floor for refusal.
Related language is seen all through the Guidelines, and extra broadly in Dwelling Workplace coverage paperwork. For instance, Half 3 of the Dwelling Workplace’s guidance for organisations sponsoring migrant staff units out numerous grounds below which the Dwelling Workplace might revoke a sponsor licence. Annex C1 is titled “circumstances in which we will revoke your licence” – these are necessary grounds for revocation. Annex C2 is titled, “circumstances in which we will normally revoke your licence”, and Annex C3 is titled, “circumstances in which we may revoke your licence” – each of those would require the train of discretion.
Exercising discretion exterior of the Immigration Guidelines
The Immigration Act 1971 confers on the Secretary of State (and, in effect, the officers performing on his behalf) huge powers to grant, refuse, fluctuate or cancel depart to enter or stay within the UK. Usually, these powers are exercised in accordance with the Immigration Guidelines. Nevertheless, as the Supreme Court has confirmed, “It is still open to the Secretary of State in her discretion to grant leave to enter or remain to an alien whose application does not meet the requirements of the Immigration Rules.”
Accordingly, even when a requirement of the Immigration Guidelines is framed in necessary phrases (e.g. the applicant “must” meet a sure requirement), it’s nonetheless open to the caseworker to contemplate whether or not, on the information of the case, to train discretion to waive the requirement and grant depart nonetheless. If the applicant is looking for to enter or stay within the UK below an present immigration route (e.g. as a Expert Employee, or as a companion), the caseworker should still select to grant them depart below that route. Alternatively, if the Applicant is looking for to enter or stay for a function not coated by the Guidelines, the caseworker might grant them Leave Outside the Immigration Rules (“LOTR”) or Discretionary Leave (observe that this latter class is a technical time period, and doesn’t discuss with all depart granted on a discretionary foundation).
A choice to train discretion in such cases might be made if thought-about applicable on the actual information of the case – usually, the place the circumstances current sufficiently compelling or compassionate causes for granting depart. Elements which may affect a choice embrace the Secretary of State’s public legislation responsibility to behave in a procedurally honest method; its public sector equalities duties; its responsibility below section 55 of the Borders, Citizenship and Immigration Act 2009 to take note of the necessity to promote one of the best pursuits of kids; and its responsibility below section 6 of the Human Rights Act 1998 to behave in a way compliant with Conference rights.
It must be harassed that this discretion to waive a requirement of the Guidelines (or to grant LOTR) just isn’t prone to be exercised frequently or frivolously. An argument that discretion must be exercised to grant an software as a result of a requirement of the Immigration Guidelines was virtually however not fairly met (a “near miss”) is unlikely to chop the mustard, because the Courtroom of Attraction has affirmed.
Immigrtion Concessions
In addition to exercising discretion on a case-by-case foundation, the Dwelling Workplace additionally once in a while introduces “concessions”. These are insurance policies that successfully loosen up the necessities of the Immigration Guidelines in relation to a complete class of candidates: for instance victims of domestic abuse, dependants of Hong Kong British Nationals (overseas) visa holders the place the primary applicant has died in the course of the software course of, or (beforehand) individuals who have been unable to leave the UK during the COVID-19 pandemic.
When there’s a concession in place, the caseworker will technically be exercising the Secretary of State’s discretion to grant depart exterior of the Immigration Guidelines. Nevertheless, this doesn’t imply that they’re actually exercising discretion in apply. A concession is an announcement of Dwelling Workplace coverage, so should be utilized pretty and persistently – and must be followed unless there is good reason not to do so. Certainly, because the Supreme Court has made clear, in some circumstances a concession could also be of equal authorized standing to the Immigration Guidelines themselves: “If a concessionary policy statement says that the applicable rule will always be relaxed in specified circumstances, it may be difficult to avoid the conclusion that the statement is itself a rule “as to the practice to be followed” inside the which means of part 3(2) [of the Immigration Act 1971] which must be laid earlier than Parliament.”
Contact our Immigration Barristers
In circumstances the place you might be asking Dwelling Workplace decision-makers to train discretion in your favour, it’s important that your arguments are put throughout as persuasively as attainable, with detailed proof to again up each related element in your case. For professional recommendation and help in relation to immigration functions and appeals, contact our Immigration Barristers on 0203 617 9173 or full our enquiry kind beneath.
