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

Mr Malik KC submitted that the decision to curtail the claimant’s leave with immediate effect pursuant to paragraph 9.8.8 of the Immigration Rules involved three distinct decisions. These were, first, a decision that the claimant was in breach of a condition of his leave, secondly, that leave should be cancelled as a matter of discretion and thirdly, that it should be cancelled with immediate effect rather than at some later date. He submitted that that followed from the wording of paragraph 9.8.8 which provided a discretion - leave “may be cancelled” - where the person has “failed to comply” with a condition of the leave.

He submitted that procedural fairness required that the claimant be given a clear indication of the suspicion that there had been a failure to comply with a condition and an opportunity to comment upon the suspicion. Further, the claimant had to be told that there was a discretion to cancel the leave and be given the opportunity to make representations as to why the discretion should not be exercised or why the leave should not be cancelled immediately but at some later date. He submitted that that analysis was consistent with the analysis of this Court in Balajigari dealing with an analogous situation under paragraph 322(5) of the Immigration Rules which provided that leave to enter or remain would normally be refused because of the undesirability of permitting the person to stay in the United Kingdom in the light of certain specified matters.

Mr Malik submitted that, on the facts, the immigration officer did not give a clear indication of her suspicion that the claimant was in breach of a condition of his leave and she should have probed the answers given. Further, he submits that the claimant was not told that the immigration officer had a discretion whether to cancel leave, or whether to do so with immediate effect, and he was not given the opportunity to make representations on those matters. Consequently, he submitted that there was a breach of the requirements of procedural fairness and the decision of 7 November 2023 was unlawful.

Mr Palmer KC, with Mr Bourke, for the defendant submitted that the claimant had been given a clear indication of the nature of the allegation. He was spoken to when officers entered the shop and asked about his work pattern. He was cautioned as the immigration officer had a suspicion that he was working in breach of a condition of his leave. He was asked specific questions about his work and was given the opportunity to address those issues.

Mr Palmer submitted that procedural fairness did not require the claimant to be told that the officer had a discretion as to whether to cancel the claimant's leave, or to do so with immediate effect, or to be given the opportunity to comment on those matters. In any event, the questions asked at various elicited times all the information that the claimant wished the defendant to consider. There had, therefore, been no breach of procedural fairness, or any such breach was not material, or it was a technical breach only.