Actual practice shows us that sometimes the Home Office has to exercise discretion in its decision-making. To take a simple example, a migrant may apply for leave to remain and they have a recent criminal conviction. The rule says that such an application should “normally” be refused if the conviction is considered to be sufficiently serious. The word “normally” indicates that discretion must be exercised and an appropriate judgement made – should leave be granted or not?
In such situations, the structure of the rule determines that there has to be an exercise of discretion.
But, above and beyond this, the Home Office (in the person of the Home Secretary) always has discretion to act outside the rules. This was explained some years ago by the learned jurist Lord Hope in a leading case in the Supreme Court called “Alvi”, in which he traced the development of immigration law operated by prerogative powers (by whim of the Government and, in older times, by the monarch) to immigration law operated with parliamentary consent and agreement.
Although these prerogative powers have effectively been swept away, nonetheless:
“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.”
So the Government and Home Secretary still retain as it were the “nice” bits of the prerogative powers, ie the capability of using discretion in a more generous way than the rules permit.
However, experience shows that I n the vast majority of cases we can expect the Home Office to follow the rules, even if they are horribly complicated and the outcome seems harsh.
Practitioners sometimes tell clients that “we can ask the Home Office to exercise discretion in your case” but the level of hope may not be very high.
But occasionally the Home Office may exercise discretion and go completely outside the rules.
Some readers may be aware of a recent story in the media about young Indian boy, Shreyas Royal, who currently lives in the UK and whose father is here on a Tier 2 Intra-Company Transfer visa. This visa enables a skilled employee of an overseas branch of an international company to come to the UK to work for a UK branch of the company. But the Tier 2 ICT visa (unlike other types of working visa) no longer provides a route to settlement, and the migrant may thus have to leave the UK when their visa expires.
The thing that is special about Shreyas (who is only nine years old) is that he is good at chess. So good in fact that he is, according to some newspaper headlines at any rate, a “future world champion”. But Shreyas does not hold a visa entirely in his own right: he holds a dependant visa, ie as the dependant of his father. His father’s visa will apparently expire in September this year and so presumably will Shreyas’s, as dependant visas are usually issued in line with the main migrant’s visa.
So it looked as though the UK would lose a remarkable chess prodigy who, we might envisage, could otherwise one day become a British citizen and a proud asset of this country.
A lot of people, including some MPs, wrote to the Home Secretary, Sajid Javid, asking for discretion in Shreyas’s case and asking that he be allowed to stay in the UK. They have argued that it does not make make sense for the Home Office to adhere slavishly to the immigration rules and in the process lose such a remarkable talent.
The Home Secretary said that, unfortunately, an exception to the rules could not be made, because it would set an inappropriate precedent. But then he suddenly changed his mind. As far as we can understand from media reports Shreyas’s father will now be able to apply for a Tier 2 General visa (quite a different kettle of fish from a Tier 2 ICT visa) outside the immigration rules, which will allow him and his family to stay and potentially settle in the UK.
This is surely an amazing triumph of hope over experience, and we suspect that the intense media interest in the story might have helped. If you are in the situation where your immigration status is not entirely strong it might be appropriate to ask the Home Office to exercise discretion in your favour, but you first might want to take careful advice about the chances of success.