The Points Based System was supposed to replace the old immigration rules with a system that was clearer and more objective. But is it really fair? Time and time again ones comes across cases where people are penalised for technical errors, often minor slips in immigration applications which are then returned as invalid by the Home Office, leading to the migrant (who hitherto has fully abided by the rules) suddenly finding themselves without leave to remain, unable to extend their stay under the immigration rules.

The best way of responding to unfairness is to use discretion. As the Tribunal noted in MO (Date of decision: applicable rules) Nigeria [2007] UKAIT 00057, there is always a discretion to grant an application outside the immigration rules. So where a student finds themselves unable to fulfil immigration rule 245ZX(l), for example, because they made an application for extension of leave that was deemed invalid as a result of which they have a break in their leave to remain of more than 28 days prior to the date at which their next course would commence, the Home Office does not have to refuse them further leave to remain: they could always be granted a short extension of leave sufficient to permit a fresh application to be made. Indeed the Home Office could even pocket a further fee for processing the further application that would ensue, so making even more money than they presently do out of the student population.

So are there any arguments to support the notion that a refusal to act benevolently in these circumstances is unlawful? It certainly seems disproportionate to suddenly declare a person to have overstayed their leave (and thus to have potentially committed a criminal offence and be liable to facing a mandatory ban on return to the United Kingdom), and if the relevant studies were sufficiently integral to the Applicant's private life then there might be an interference with their rights under Article 8 of the European Convention on Human Rights.

But what of cases short of a human rights interference? In the case of Alconbury Lord Slynn stated at [51] that proportionality was a principle of the English legal system even outside the context of European Union law. Sullivan J in the Administrative Court in Forrester found that a decision that was impeccable under the immigration rules might still be lacking a modicum of common sense, intelligence and humanity. And Dyson LJ in the Court of Appeal in MD (Jamaica) & Anor v Secretary of State for the Home Department [2010] EWCA Civ 213 opined that there was no need to stretch the interpretation of the immigration rules to achieve justice when there was a very minor oversight, because a de minimis breach of a rule (such as submitting an application a day late) was not something that should concern the law: might that learned judge be taken, then, as suggesting that a trivial breach of the immigration rules should not become something which the courts are called to adjudicate upon, because discretion should, humanely and sensibly, be called into play?