CA-2024-000740 - [2025] EWCA Civ 1375

The issue in relation to ground 1 is whether the decision of 7 November 2023 is invalid because it was reached in a way that was procedurally unfair. That involves considering whether the principles of procedural fairness apply to the decision-making process in question, what those principles require in the particular case, whether the decision maker took the steps required and, if not, what are the consequences of the failure to do so.

First, I am satisfied that the immigration officer was obliged to act in a procedurally fair way when considering whether to exercise the power conferred by paragraph 9.8.8 of the Immigration Rules to cancel leave with immediate effect. Such a decision has a significant effect on the individual concerned. He had permission to be in the United Kingdom to study for a Master’s degree. He had paid a considerable sum of money to pursue that course. If leave were cancelled with immediate effect, he would no longer have leave to remain in the United Kingdom and should either leave or would be liable to be removed. The consequences are such that the principles of procedural fairness apply to that decision-making process.

Secondly, the requirements of procedural fairness will depend on a number of factors including the legislative framework, the nature of the decision-making process and the particular facts of the case. That is reflected in the opinion of Lord Mustill in R (Doody) v Secretary of State for the Home Department [1994] 1 AC 531where he said at page 560:

“What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.”

In the present case, I accept that there are two essential aspects to the exercise of the power conferred by paragraph 9.8.8 of the Immigration Rules. First, the individual has to have failed to comply with a condition of his leave to enter or remain. Secondly, there is a discretion as to whether to cancel leave, whether immediately or at some later date.

The requirement of procedural fairness applies to both aspects of that decision-making process although what will be required to ensure procedural fairness may differ, or be differently expressed in relation to each of those aspects. In that regard, I consider that the position is analogous to that in Balajigari. That case also concerned a discretion to refuse leave to enter or remain given:

“the undesirability of permitting the person concerned to remain in the United Kingdom in the light of his conduct (including convictions which do not fall within paragraph 322(1C)), character or associations or the fact that he represents a threat to national security.”

The Court of Appeal considered that the correct analysis of the decision-making process was that it involved a two-stage analysis. The first was whether it was undesirable to grant leave given the matters specified in the rule. The second stage was whether leave should, as a matter of discretion, be refused on the basis of that undesirability (see paragraph 33 of the judgment). The Court noted that the first stage, the assessment of undesirability, itself had a number of distinct steps or limbs that had to be considered (see paragraph 34 of the judgment). The Court then considered whether procedural fairness applied to those two stages and if so, what was required. At paragraph 55 of the judgment, the Court said this:

“55.

For all of those reasons, we have come to the conclusion that where the Secretary of State is minded to refuse ILR on the basis of paragraph 322(5) on the basis of the applicant's dishonesty, or other reprehensible conduct, he is required as a matter of procedural fairness to indicate clearly to the applicant that he has that suspicion; to give the applicant an opportunity to respond, both as regards the conduct itself and as regards any other reasons relied on as regards “undesirability” and the exercise of the second-stage assessment; and then to take that response into account before drawing the conclusion that there has been such conduct.”

I am satisfied that the Court decided that procedural fairness required both that the Secretary of State indicate clearly to the individual that he has that suspicion (i.e. that the individual’s presence in the United Kingdom was undesirable) and to allow the individual an opportunity to respond to matters going to whether the discretion should be exercised.

Mr Palmer submitted that the Court was only deciding that there had to be an opportunity to comment on matters going to “conduct”, that is, to whether the individual’s presence in the United Kingdom was undesirable, not matters of discretion. I do not accept that submission. Reading the judgment as a whole, it is clear that the Court considered that the principles of procedural fairness applied both to the first and the second stages of the decision-making process. The decision-making process had been described in paragraph 33 as involving a first stage, namely an assessment of the issue of undesirability, and a second stage, the issue of whether to exercise the discretion to refuse leave. The Court said in paragraph 55 that procedural fairness applied both to the first stage, assessment of undesirability and “the exercise of the second stage assessment”, that is consideration of the discretion to refuse. The reference at the end of paragraph 55 to taking the responses into account before drawing the conclusion that there has been “such conduct” means conduct justifying refusal of leave under the rule, i.e. conduct which shows that the presence of the individual in the United Kingdom is undesirable and which justifies, as a matter of discretion, refusing to grant leave to remain or enter. Those words are not intended to limit the scope of procedural fairness to the first question of whether the presence of the individual in the United Kingdom would be undesirable. That the Court concluded that the obligations of procedural fairness applied to both stages of the decision-making process is put beyond doubt, as Mr Malik pointed out, by reference to paragraph 131 and 211 of the judgment. The Court’s conclusion was that an unlawful decision could be avoided by adopting a process which informed the individual of the Secretary of State’s concerns and gave the individual the opportunity to draw “attention to matters relevant to the “undesirability” or “discretion” issues”. The same applies in the present case. The principles of procedural fairness apply both to the question of whether the claimant had failed to comply with a condition of his leave and to whether the discretion to cancel leave with immediate effect should be exercised.

The next question is whether, on the facts, the claimant was treated procedurally fairly in this regard. What was required to ensure that the claimant had an adequate opportunity to put forward his representations on each of those two issues and whether that occurred depends upon the facts of the particular case.

I deal first with the question of the assessment of whether the claimant had failed to comply with a condition of his leave. I have no doubt whatsoever that all that could reasonably be required to ensure that the claimant was treated procedurally fairly was done. In particular, the claimant was told, and knew, that the issue was whether he had failed to comply with the condition of his leave that he work no more than 20 hours a week in term time and he was given ample opportunity to give his version of events.

The context needs to be borne in mind. The issue was a simple, straightforward one, namely whether the claimant had worked more than 20 hours a week in term time. The claimant knew, as he admitted to the immigration officers, that he was not permitted to work more than 20 hours a week. The immigration officer having entered the premises told him that she was there to ask questions of people working in the off licence about their working hours.

In the light of the answers the claimant gave, the immigration officer arrested the claimant and cautioned him. That caution says that the immigration officer was arresting him because “I suspect that you have breached a condition of your leave by working more hours than you are permitted”. The reason why the claimant was being arrested and being interviewed was clearly and straightforwardly identified.

The questions asked gave the claimant every opportunity to explain what he was doing, and when he began working both at Tesco and at Lucky’s. It gave him every opportunity to explain when he began working and what hours he worked at each. There was no procedural unfairness in relation to this aspect of the matter.

The position in relation to whether the discretion to cancel leave, whether immediately or at some later date, is more nuanced. The claimant was asked various questions about matters relevant to that issue. But, as was accepted, the claimant was not expressly told that he had the opportunity to comment to say why it was that the discretion to cancel his leave should not be exercised. In context, probably all that would have been necessary would be a simple question at some stage asking whether the claimant wanted to say anything about why his leave should not be cancelled, or not cancelled with immediate effect, if the officer did find that he had failed to comply with a condition. That was not done before the decision was made.

However, that is not the end of the inquiry. Mr Malik was asked what matters, on the evidence, the claimant would have wanted to refer to as being reasons why the discretion to cancel the leave immediately should not be exercised. He submitted that there were these matters: (1) the claimant was a genuine student; (2) he had spent more than £19,000 on his course; (3) the last few months had been difficult as he was working at night and studying by day (although, as his witness statement made clear, he had passed his modules and no one was suggesting otherwise); (4) he had made good progress and was about to complete his degree and (5) the level of non-compliance.

As it happens, the claimant had been asked questions which had in fact enabled him to provide all the information he wished to in relation to those matters. The immigration officer had asked him during interview what the course was, when it began and when it would be completed. She asked him about the cost and he told her it was £19,350 provided partly with help from his family and partly from his savings. The officer knew he wanted to remain in the United Kingdom to finish his degree – he told her so, when she asked if he wished voluntarily to depart from the United Kingdom. The officer knew the level of non-compliance – the claimant told him. From 15 October 2023, until she took her decision on 7 November 2023, he was working from 9 a.m. to 6 p.m. on a Monday and a Tuesday at Lucky’s and from 9 p.m. to 7 a.m. on a Friday and Saturday night in Tesco. He was working somewhere around 38 hours a week – nearly double the maximum 20 hours a week that was permitted in term time. It is difficult to see the relevance of the fact that things were difficult because the claimant was working at night and during the day and having also to study. That had not in fact prevented him passing his modules (and no one suggested it had) and, in any event, it resulted from the fact that he failed to comply with the condition of his leave. Further, the immigration officer knew that he wanted to stop working at Tesco at some stage in the future and work in Lucky’s – he told her that. Furthermore, the officer asked, and knew, that factors that might be relevant to discretion were not present– the claimant told her that he had no physical or mental health conditions, and that he had no partner or dependants in the United Kingdom.

In all the circumstances, therefore, the interviews that were carried out, and the information that the claimant was able to provide, ensured that the immigration officer was in fact informed of all the matters that the claimant wanted the immigration officer to consider.

The question therefore is whether the decision of 7 November 2023 was vitiated by a failure to make it clear that the claimant could make representations about whether the discretion should be exercised immediately or at a later date. That question arises in circumstances where, assessing the matter objectively, the claimant had provided all the information to the decision-maker during the course of the decision-making process. It is not a case where the claimant had not had the opportunity to make any representations and where the decision-maker was unaware of what the claimant wanted to say (where different considerations might arise).

The underlying purpose of the principle of public law that has been said to have been violated needs to be borne in mind and consideration should be given to whether that purpose has in fact been achieved. Here the underlying purpose was to enable the claimant to have the opportunity to make representations as to why he should not have his leave cancelled and, in substance, that was achieved on the facts of this case. In those circumstances, the courts have in similar circumstances taken the view that there has been no breach, or no material breach, of the principles of procedural fairness or certainly none that renders the decision unlawful. By way of example, it has long said that there is “no such thing as a technical breach of natural justice” and a court should not find a breach of natural justice (now more commonly called procedural fairness) in the absence of substantial prejudice to the individual as a result of the procedural failing (see George v Secretary of State for the Environment (1979) 38 P & CR 608, per Lord Denning MR at 517). Alternatively, the courts may, depending on the circumstances, find that the decision was vitiated by a breach of the principles of procedural fairness but have refused to grant a remedy to quash the decision either as a matter of the discretion of the court or the operation of section 31(2A) of the Senior Courts Act 1981.

The matter was considered recently by this Court in R (Save our Stonehenge World Heritage Site Ltd) v Secretary of State for Transport [2024] EWCA Civ 1227; [2025] PTSR 726. There it was said that a judge had erred by considering whether there had been any material prejudice suffered as a result of alleged procedural unfairness. It was said that the position was that if there had been a breach of the principles of procedural fairness, the decision was unlawful and the only question was whether a remedy had to be refused because of section 31(2A) of the Senior Courts Act 1981. That subsection placed a burden on the decision-maker to show that it was highly likely that the outcome for the individual would not have been substantially different if the conduct complained of had not occurred. The Court rejected that argument. At paragraph 75, it said this:

“75.

We consider that submission mistaken. The common law principles of procedural fairness are intended to ensure an individual is treated fairly. What procedures are required to ensure fairness will, as we have said, depend on a number of factors including the nature of the decision, the decision-making process, and the facts. And there will be no breach of the principles of procedural fairness even if a particular step has not been taken where that has not resulted in any prejudice to the individual (see George v Secretary of State for the Environment and another (1979) P. & C.R. 609 ). It is clear that the judge was doing no more at [115] and the following paragraphs of his judgment than summarising and applying the principles of procedural fairness, and that he did so accurately in the light of the case law. ….”.

That is the position in the present case. Any failure to comply with the principles of procedural fairness by not making it clear to the claimant that he had an opportunity to make representations as to why his leave should not be cancelled immediately, or at a later date, did not in fact result in any prejudice. As a result of the questions that were asked during the decision-making process, the claimant did, in fact, provide the information that he wanted the decision-maker to consider when deciding whether to cancel his leave immediately. In the circumstances, there was no, or no material, breach of the principles of procedural fairness and certainly none that vitiated the decision.

For completeness, even if the decision had been flawed (which it is not) I would in any event have refused a remedy. Section 31(2A) of the Senior Courts Act 1981 provides that the court must refuse relief where it is highly likely that the outcome for the claimant would not have been substantially different if the conduct complained of had not occurred. The outcome here was the cancellation of leave with immediate effect. The conduct complained of was that the defendant did not make it clear to the claimant that he could make representations about whether the leave should, as a matter of discretion, be cancelled with immediate effect. The proper approach is set out in R (Bradbury) v Brecon Beacons National Park Authority [2025] EWCA Civ 489; [2025] 4 WLR 58 especially at paragraph 71, and R (Greenfields (IOW) Ltd) v Isle of Wight Council [2025] EWCA 488, [2025] 2 P & C.R 16 especially at paragraph 73. The court is concerned with evaluating the significance of the error on the decision-making process. It considers the decision that the public body has reached and assesses the impact of the error on that decision in order to ascertain whether it is highly likely that the outcome (the decision) would not have been substantially different if the error had not been made.

In this case, the decision was to cancel the claimant’s leave with immediate effect because he had failed to comply with a condition of leave. The conduct complained of was not telling the claimant that he could make representations about whether, as a matter of discretion, the immigration officer should decide not to cancel the leave with immediate effect. However, the claimant was asked a number of specific questions, and, in fact, provided all the information that he wished to provide before the decision was reached. The immigration officer reached the decision on the basis of all the information that the claimant wanted to be considered. In those circumstances, any error did not impact on the decision-making process. For those reasons, if the decision had been flawed because of a breach of procedural fairness, I would have refused a remedy.