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

This is a claim for judicial review of a decision of the defendant, the Secretary of State for the Home Department, given on 7 November 2023 cancelling the claimant’s leave to remain in the United Kingdom with immediate effect. Permission to apply for judicial review was refused by the High Court but was granted, on two grounds, by Nugee LJ who also directed that the claim be retained in the Court of Appeal rather than remitted to the High Court for determination.

In brief, the claimant entered the United Kingdom on a student visa on 5 October 2022. That leave was subject to the condition that the claimant worked no more than 20 hours a week in term time. On 7 November 2023, he was encountered by immigration officers in an off licence called Lucky’s. He was asked questions about his work pattern and said that he was training at Lucky’s and also disclosed that he was working for 20 hours a week in Tesco. He was arrested and cautioned as the immigration officer suspected that he was in breach of a condition of his leave by working more than 20 hours. He was asked questions, including questions about his physical and mental health and whether he had a partner or dependants in or outside the United Kingdom. He was then taken into detention and interviewed and asked further questions about his work and his studies. The facts are set out in more detail below. The decision was then taken to cancel his leave with immediate effect as he had failed to comply with a condition of his leave as he was working more than the permitted 20 hours a week in term time.

The claimant was granted permission to apply for judicial review of the decision of 7 November 2023 on two grounds, namely,

In essence, Mr Malik KC for the claimant submitted that the principles of procedural fairness required the decision-maker to give the claimant a clear indication of the suspicion that the claimant had breached a condition of his leave and that had not happened. He submitted that procedural fairness also required that the claimant be told that the defendant had a discretion to decide whether or not to cancel the claimant’s leave, and whether that cancellation should take effect immediately or be deferred to a later date, and be given the opportunity to make representations on those issues. He submitted that that had not occurred. As there had been a breach of procedural fairness, he submitted that the decision was unlawful. On the second ground, he submitted that for the purposes of the Immigration Rules, a week is defined as a seven day period beginning with a Monday. He was at Lucky’s on 6 and 7 November 2023 (a Monday and a Tuesday) but did not work at Tesco’s on 10 and 11 November 2025 as he had taken time off and so had not worked more than 20 hours in that week.

Mr Palmer KC, with Mr Bourke, for the defendant submitted that the claimant had been told that the immigration officer suspected the claimant was working more than the hours permitted by the conditions of his leave, and that, together with the interview that was conducted, was sufficient to satisfy the requirements of procedural fairness. He submitted that procedural fairness did not require the claimant to be told about, or be invited to make representations on, the discretion to cancel the claimant’s leave. Furthermore, he submitted that all the matters that the claimant sought to rely on had been elicited in the course of the interviews and any failure to inform the claimant that he could make representations on whether leave should be cancelled with immediate effect did not, on the facts, render the particular decision unlawful.