Manpreet Kaur & Anor, R (on the application of) v The Secretary of State for the Home Department

INTRODUCTION

The Claimants are married. They are Indian nationals who came to the UK in 2023. The Claimant had entry clearance as a Tier 4 student and the Second Claimant (her husband) had entry clearance as her dependent. They both challenge a decision by the Defendant to cancel their permission to stay in the UK and to serve them with notice of liability to removal from the UK at the same time by service of a RED.0001 notice. The Claimants also challenge the lawfulness of their detention which followed. In this judgment “the Claimant” refers to Ms Manpreet Kaur and “the Second Claimant” refers to Mr Manpreet Singh (collectively the Claimants).

Permission was originally refused on the papers and again following an oral renewal hearing. The Claimants however appealed and permission was granted by Arnold LJ on 24 September 2024.

The grounds of claim are (1) the RED.0001 notice should not have been used to cancel permission, (2) the Defendant failed to follow its own policy when cancelling permission to remain with immediate effect and (3) the decision to detain the Claimants was unlawful. The Claimants seek quashing orders, declarations and damages for false imprisonment.

FACTUAL BACKGROUND

The Claimants entered the UK lawfully on a student visa (issued to the Claimant) and a dependent visa (issued to the second Claimant) on 25 January 2023. The Claimant’s sponsor was the University of Dundee.

On 16 May 2023 immigration officers encountered the Second Claimant working at a factory in the West Midlands where in due course the Claimant attended upon request. A record of this encounter was provided by the Defendant at the hearing of the claim (see below).

The Defendant cancelled both Claimants’ permission to stay in the UK with immediate effect and notified them that they were liable to be removed from the UK. This was on the basis that the Claimant’s sponsorship had been revoked by her sponsor.

The Claimants were served with documents including a RED.0001 notice (issued to a person liable to removal from the UK) and an IS.91R notice (reasons for detention). Removal directions were set the next day. The RED.0001 notice was also used to notify the Claimants that their permission to stay had been cancelled.

On 23 May 2023 the Claimants sent a pre-action protocol letter and submitted a human rights claim in which it was argued that their removal would breach Article 8 of the European Convention on Human Rights.

On 21 June 2023 the Defendant refused the human rights claim and certified it as clearly unfounded under section 94 of the Nationality, Immigration and Asylum Act 2022.

THE CLAIM IN JUDICIAL REVIEW

These judicial review proceedings were issued on 26 June 2023. Permission was refused on the papers on 06 December 2023 whereupon the Claimants renewed their applications.

During the period between the paper refusal and the oral renewal hearing, the Defendant issued notices to the Claimants which purported to cancel their permission to remain within a 60-day period. The Defendant says that this was done in error and is a nullity. The late emergence of this material caused the renewal hearing to be adjourned. The Government Legal Department was unaware of this until her lawyers were shown the paperwork at court. This should have been a wake-up call to the Defendant that all was not right with this case.

At the adjourned oral renewal hearing on 21 March 2024, permission was again refused. The Claimants applied for leave to appeal and permission to bring this claim was granted by Arnold LJ on 24 September 2024.

A day before the substantive hearing, the Defendant served a witness statement from Colin Hubbard of the Home Office Student Sponsor Assessment Unit and applied for permission to rely upon this evidence. The statement confirms that the University of Dundee withdrew its sponsorship of the Claimant on 16 February 2023. This was reported to the Home Office the same day. The reason for withdrawal was that she had “failed to engage and academically progress in line with immigration rules”.

The parties asked whether the case ought to be adjourned to enable the Claimants to respond to this evidence. I indicated that due to the history of the case I was not minded to adjourn unless this were truly unavoidable. I agreed to consider the evidence but assured the Claimants that I would not allow their case to be prejudiced by it. It was very unfortunate that this evidence was served so late.

During the substantive hearing, Mr Seifert who represents the Defendant informed me that he had received some significant information and would need time to consider it. The court therefore rose early for the lunch break. When the hearing resumed at 14:00, I was told that a 31-page document had just been provided to counsel. This included records of interviews between the Defendant’s officers and the Claimants from 16 May 2023. This was material which the Claimants had been seeking from an early stage in the claim. It is unacceptable that the Defendant provided these documents so late. It placed the Claimants and the court in a very difficult position. I agreed to consider the evidence on the same basis as the late witness statement. In the event, this did not require the case to be adjourned but this was no more than good fortune.

RELEVANT LAW AND GUIDANCE

To avoid confusion I am using the word permission (as opposed to leave) and cancellation (as opposed to curtailment) as these are the terms currently used by the Defendant.

Under section 3(3)(a) of the Immigration Act 1971, the Defendant has the power to vary limited permission to remain the UK. It is accepted that varying permission to remain includes cancelling it.

Section 4 of the Immigration Act 1971 requires that the power to vary permission under section 3(3)(a) be exercised by notice in writing.

Paragraph 9.8.8 of the Immigration Rules provides that permission may be cancelled where the person has failed to comply with the conditions of their permission.

Paragraph 9.25.1 of the Immigration Rules provides that permission of a student may be cancelled if amongst other matterstheir sponsorship has been withdrawn.

Paragraph 9.24.1 of the Immigration Rules provides that a dependent’s permission may be cancelled where they are the dependent of another person whose permission has been cancelled.

Section 10(1) of the Immigration and Asylum Act 1999 provides that a person is liable to removal from the UK if they require permission to enter or remain but do not have it.

Section 10(2) of the Immigration and Asylum Act 1999 provides that family members of a person liable to removal are also liable to removal if three conditions are met. It is agreed that as the Second Claimant is (1) the Claimant’s partner, (2) was granted permission on the basis of his relationship with her and (3) is neither British nor Irish nor has permission under a residence scheme. It is accepted that this provision would therefore apply to the second Claimant were his wife liable to removal.

The Defendant’s Administrative Removal: notification and implementation – interim guidance version 2.0 dated March 2023 (the March 2023 guidance) provides that:

The Defendant has also issued guidance entitled Cancellation and Curtailment of Permission Version 1.0 (the cancellation guidance). This deals with immediate cancellation in the following terms.

A different approach is envisaged where cancellation is due to matters beyond a person’s control.

The following from the cancellation guidance is also of relevance to this case:

Unsurprisingly the cancellation guidance sets out a requirement that immigration officers:

“make a cancellation decision on the basis of the available facts…in some circumstances, it may be appropriate for you to ask an individual to provide additional information before making a cancellation decision….in cases where you exercise your discretion you must record your consideration and the reasons for your decision…you must refer…to a Senior Caseworker for review where action is taken out of the ordinary…this includes where: permission is being cancelled immediately but otherwise this would normally be 60 days.”

GROUND ONE

Under their first ground, the Claimants submit that the RED.0001 notice should not have been used to cancel permission in their cases. They point to the Defendant’s March 2023 guidance (above) which provides that permission to stay can be cancelled using a RED.0001 notice on the basis of amongst other mattersfailure to comply with conditions of permission to enter or stay under paragraph 9.8.8 of the Immigration Rules. The Claimants submit that none of the conditions set out in the March 2023 guidance are present in their cases. In particular they submit that there has been no fraud nor breach of the conditions of permission to stay. There is reference within the completed RED.0001 notice to it being a requirement of the Claimant’s “conditions” to attend all lectures in person but this is agreed to be incorrect.

Further, the Claimants point to the completed Form IS.91R (notification of reasons for detention) which makes reference to the Claimant previously breaching her conditions and working illegally. These are also agreed to be incorrect.

The Defendant accepts that there were errors in the RED.0001 notice and Form IS.91R but submits that they were immaterial. In her grounds of defence and skeleton argument, the Defendant submitted that it was a condition of the Claimant’s visa that she be sponsored by the University of Dundee. As sponsorship had been withdrawn the Defendant argued that this was a breach of condition case. It was therefore submitted that the guidance supports cancellation of permission by use of RED.0001 notice.

Given that the claim as pleaded in the grounds and skeleton arguments turned upon (i) the terms of the March 2023 guidance and (ii) the conditions of the Claimant’s permission to stay in the UK, it was surprising that neither this guidance nor the permission conditions had been provided to the court by either side in advance of the hearing. It was as such impossible to come to a decision on ground one based upon the hearing bundle.

I asked for and was provided with a copy of the March 2023 guidance during the hearing.

Counsel also sent two emails with screenshots from the Claimant’s immigration file. Based upon these documents, the Defendant submitted that the relevant condition relied upon as having been breached was in the following terms:

“Student Work limit 20 hrs p/w trm time SPX* No Public Funds”.

Mr Seifert initially argued that the above must be interpreted as imposing a condition upon the Claimant’s permission that she must “be a student” whilst in the UK. The Defendant’s position, however, changed during the hearing. To understand why, it is necessary to set out the reason for the decision to cancel permission and notify that they were liable to be removed from the UK within the RED.0001 notice in full (emphasis added):

Having considered this and in particular the final sentence, Mr Seifert abandoned a defence of the decision based upon paragraph 9.8.8 of the rules (breach of condition) but instead submitted that the decision was made under paragraph 9.25.1 (as stated in the notice). When asked whether this was consistent with the March 2023 guidance which sets out when a RED.0001 notice can be used, Mr Seifert initially stated that this guidance did not apply to decisions of this kind. Having taken instructions, he accepted that the policy did apply but argued that the guidance gave mere examples of circumstances in which a RED.0001 notice could be used to cancel permission. Mr Seifert argued that the guidance therefore allows a RED.0001 notice to be used to cancel permission under any of the rules including paragraph 9.25.1.

It is right that the Defendant had the power to cancel permission in this case under paragraph 9.25.1 of the rules. It is clear that the March 2023 guidance points to the use of a RED.0001 notice as being appropriate where permission is cancelled due to fraud or breach of conditions of permission, none of which are relied upon in this case. I of course accept that the Defendant can depart from its guidance if there is good reason to do so. I cannot however accept that when the Defendant set out the examples of deception, fraud and breach of conditions in the March 2023 guidance, these were not intended to indicate that permission should normally only be cancelled with a RED.0001 notice in the more serious cases referenced within the guidance. To accept such an argument would be to render the terms of that guidance meaningless.

On the face of it therefore, the Defendant has acted outside the guidance. The next question that arises is what reasons have been provided for this? The Defendant here runs into further difficulties. This question is closely linked to ground two which challenges why permission was cancelled with immediate effect. It is convenient to turn to that ground now.

GROUND TWO

Mr Seifert stated at the hearing that “no reasons” had been given for the decision to cancel with immediacy. This of itself would suggest a public law error.

As with the use of a RED.0001 notice the cancellation guidance (above) seems to suggest that immediate cancellation should be reserved for cases where there has been fraud or gross misconduct.

The Defendant’s initial position was that in the circumstances of this case and when cancelling under paragraph 9.25.1, there was no requirement for the Defendant to seek any additional information. The Defendant argued that it was enough that the Claimant’s sponsorship had been withdrawn for not engaging with her studies. When the 31-page record of encounter appeared, that position changed. The Defendant sought to rely upon the interview and argued that such duty of inquiry as existed in this case was satisfied by the questions asked of the Claimants and their answers.

In her interview, the Claimant told the officers when asked that:

“I have attended some of my online classes but they have withdrawn me from

my classes

When I landed in Heathrow I had no money so I had to find accommodation

which made me busy, I needed to find cheap accommodation so I didn't

attend some of my classes because I was busy.

I want to study - it is my dream

I don't get a proper timetable - I get notifications of online lectures but not

Offline”

Whilst it is understandable that the Defendant would apply a high index of suspicion to these answers and they might raise questions about how she came to obtain a Tier 4 visa without proper means, the Claimant did not admit deception or similar and no such question was put to her.

I find it difficult to accept that the questions asked of the Claimant amounted to a proper inquiry into her circumstances not least of all because the report of the encounter also records that before speaking to the Claimant, the officers had made entries such as:

This suggests that the officers had already decided to cancel the Claimant’s permission with immediate effect before they spoke to her. Indeed they seemed to assume that her permission had already been cancelled.

I also note that the Second Claimant was arrested as a “Section 10 overstayer” before the interview with the Claimant or service of the RED.0001 notice. Obviously the Second Claimant could not be an overstayer before permission was cancelled.

There are therefore at least three problems with the decision to cancel permission immediately:

CONCLUSION

I consider that as (1) permission to remain was cancelled by use of a RED.0001 notice other than in accordance with guidance and (2) without a stated good reason and as the decision to cancel permission with immediate effect was (1) made other than in accordance with guidance, (2) with evidence of pre-determination and (3) without reasons, the decisions were unlawful as a result of multiple public law errors.

I also note that the Defendant incorrectly stated that the Claimant had breached the terms of her conditions by not attending lectures in person and made other errors in for example the documentation authorising her detention in which it is stated that you have previously failed to comply with conditions of your stay…you have used or attempted to use deception in a way that leads us to consider you may continue to deceive and that the Claimant was working illegally,all of which are wrong.

I cannot say that it is highly likely that the outcome would have been the same had these errors not been made. It is possible that the Defendant would have cancelled permission to 60 days which could have given the Claimant an opportunity to either leave the UK or apply to remain in a different category or upon different conditions.

I am conscious that this is a case in which a student who was supposed to be studying in Dundee was found in England. She claims to have run into difficulty due to a lack of funds but this would normally have prevented a certificate of acceptance of study having been issued by her sponsor. I also appreciate the difficult job the Defendant’s officers do and that the courts must not impose an unreasonable burden upon them when decisions such as these have to be made. These are important issues, however, and the Claimants were deprived of their liberty as a result of the decisions under review.

REMEDY

The standard of decision making in this case falls some way short of the required standard and the decisions to cancel permission and to notify the Claimants of their liability to be removed must be quashed. The decision in the Second Claimant’s case is parasitic upon the Claimant’s case. If the Claimant succeeds, so does the Second Claimant.

Mr Seifert accepts that on the facts of this case if the decisions to cancel permission are quashed then the detention that followed would be unlawful. I make a declaration to that effect. This aspect of the claim is transferred to the Central London County Court for a private law damages claim to be pleaded.

A number of things have gone wrong in this case. The adjournment of the renewal hearing, the very late service of the witness statement of Mr Hubbard, the failure to provide the relevant guidance or conditions of permission in advance of the hearing and the appearance of important documents half way through the hearing. This made the case very difficult for the advocates to argue. It saw the Defendant changing position multiple times. That is not how cases of this kind should be litigated.