JR-2024-LON-002126
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The decision
JR-2024-LON-002126
In the Upper Tribunal
(Immigration and Asylum Chamber)
Judicial Review
In the matter of an application for Judicial Review
The King on the application of
Thi Lam Thao Dao
Applicant
And
Secretary of State for the Home Department
Respondent
ORDER
BEFORE Upper Tribunal Judge Hirst
HAVING considered all documents lodged and having heard Mr Fazli of counsel, instructed by Aspen Crown Solicitors, for the Applicant and Mr Bedford of counsel, instructed by GLD, for the Respondent at a hearing on 4 February 2025
AND UPON the court having handed down judgment on 3 April 2025
IT IS ORDERED THAT:
(1) The application for judicial review is allowed for the reasons in the attached judgment.
(2) The Respondent’s decision of 12 July 2024 to cancel the Applicant’s skilled worker leave is quashed, with the result that the Applicant’s leave remains valid.
(3) The Respondent shall pay the Applicant’s reasonable costs of these proceedings to be subject to detailed assessment if not agreed.
(4) The Respondent has indicated she wishes to seek application for permission to appeal but no grounds of appeal have been received. Permission to appeal is refused. The appeal does not have a realistic prospect of success and there is no other compelling reason for the appeal to be heard.
Signed: L Hirst
Upper Tribunal Judge Hirst
Dated: 3 April 2025
The date on which this order was sent is given below
For completion by the Upper Tribunal Immigration and Asylum Chamber
Sent / Handed to the applicant, respondent and any interested party / the applicant's, respondent’s and any interested party’s solicitors on (date): 03/04/2025
Solicitors:
Ref No.
Home Office Ref:
Notification of appeal rights
A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.
A party may appeal against such a decision to the Court of Appeal on a point of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).
If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant’s notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal’s decision on permission to appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3).
Case No: JR-2024-LON-002126
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR
3 April 2025
Before:
UPPER TRIBUNAL JUDGE HIRST
- - - - - - - - - - - - - - - - - - - -
Between:
THE KING
on the application of
THI LAM THAO DAO
Applicant
- and -
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
- - - - - - - - - - - - - - - - - - - -
Mr M Fazli
(instructed by Aspen Crown Solicitors), for the Applicant
Mr B Bedford
(instructed by the Government Legal Department) for the Respondent
Hearing date: 4 February 2025
- - - - - - - - - - - - - - - - - - - -
J U D G M E N T
- - - - - - - - - - - - - - - - - - - -
Judge Hirst:
1. The Applicant seeks judicial review of the Respondent’s decision dated 12 July 2024 cancelling her leave to remain as a skilled worker.
Background
2. The Applicant is a national of Vietnam. She first arrived in the UK on 10 January 2019 with leave to remain as a student, which was subsequently extended by in-time applications.
3. On 3 January 2024 the Applicant submitted an application for leave to remain as a skilled worker, which was granted on 5 January 2024 valid until 29 January 2029. The conditions of the Applicant’s leave permitted her to work as a valuer for her sponsor, Cadmore Auctions Ltd, to take supplementary paid employment of up to 20 hours a week with another employer in a job in the same occupation code or on the Shortage Occupation List, and/or to take voluntary work.
4. At around 4.20pm on the afternoon of Friday 12 July 2024 immigration officers made an enforcement visit to Fabulous Nails, a nail salon in Whitley Bay. They encountered the Applicant in the salon carrying out a pedicure.
5. The Applicant was arrested and detained at the local police station, where Immigration Officer Lawton carried out three interviews. In the first interview, which took place from 17:31 to 17:56, the Applicant gave her residential address as an address in Radlett. She told Officer Lawton that she worked for Cadmore Auctions at “3 Potters Bar”; that she travelled there by the 83 bus each day; and gave the first names of her line manager and another colleague. She stated that she was paid approximately £2400 before tax each month and that the money was paid into her bank account; her phone had been left in the nail salon.
6. Whilst Officer Lawton was interviewing the Applicant, other immigration officers entered the Applicant’s brother’s address and seized around £3000 in cash which they found there.
7. Officer Waller telephoned Cadmore Auctions but there was no answer. In a subsequent witness statement dated 10 September 2024, Chief Immigration Officer (‘CIO’) Hanson recorded that on 12 July 2024, Cadmore Auctions “was publically [sic] advertised as permanently closed”. The basis for that belief has not been disclosed.
8. The second interview of the Applicant took place from 18:05 to 18:34. The Applicant was asked why she was working at Fabulous Nails and said that she was helping the owner because he was a friend and had been short of staff; she had helped him out on weekends 2 -3 times since June 2024. The Applicant was asked why she was in Newcastle on a Friday and said that she had come to have a conversation with her brother. The interview record then noted the following questions and answers:
Q: Thao, I do not believe that you are working at Cadmore Auctions. I believe that you work for Fabulous Nails and this is based on evidence found at your premises, the fact that the premises you have been staying at appears to be lived in (rather than stayed at) by you and the fact that Cadmore Auctions is permanently close [sic], this is your opportunity to be honest.
A: I don’t work for cadmore [sic]. I work for Fabulous Nails.
Q: How much are you paid by Fabulous Nails?
A: Cash weekly. Calculated by how many days I work. I am paid £100 per day from half 9 until 6.
9. The third interview took place from 18:35 to 18:39. The Applicant was asked whether the money found at her brother’s address was hers. She answered that it was, and that it was payment from the nail shop for the last 3-4 months.
10. The Applicant does not dispute that she made the admissions recorded in the record of the second and third interviews, but maintains that they were the result of a combination of her own fear, panic and confusion at being detained and questioned, and oppressive conduct in the interview by Officer Lawton.
11. The records of the enforcement visit record that at 18.41 the Applicant was offered voluntary departure from the UK and at 18:53 she was served with notice of liability to removal. The notice informed her that she did not have permission to enter or stay in the UK and referred her to the ‘reasons for decision’ section. That section, which was handwritten, stated in its entirety:
“You were granted leave to remain in the UK as a skilled worker and your sponsor was named as Cadmore Auctions Ltd. Your leave was granted until 29 January 2029. You were encountered at Fabulous Nails and Beauty on 12/07/24 and you later admitted that you have never worked at Cadmore Auctions but in fact worked at Fabulous Nails. This is an offence under s10(1)(a) and a breach under s24(1)(b)(ii) as amended by IA 1999. Subsequently your leave is now cancelled in accordance with section 9.8.8 of Immigration Rules.[sic]”
That is the decision under challenge in this claim.
12. At 23:53 on 12 July 2024, Officer Waller emailed Cadmore Auctions asking for confirmation of details of the Applicant’s employment. On Saturday 13 July at 8.23am, Mark Lyons of Cadmore Auctions responded to the email. He confirmed that the Applicant had been employed full time as a valuer since January 2024, that she was assigned to a project working on a fine art auction due to be held in Hanoi on 27-28 July 2024, and had been working remotely with the Vietnam team. She reported to the office a few times a week but her times were flexible due to the time zone difference with Hanoi. He confirmed that the Applicant was paid monthly by bank transfer. His email concluded:
“We cannot get hold of her since yesterday for the end-of-week schedule check up. If you have any information about her whereabouts and wellbeing we would be much appreciated” [sic]
13. On 15 July 2024 the Applicant’s solicitor wrote an attendance note recording a telephone conversation he had had with Mr Lyons. Mr Lyons was recorded as stating that the Applicant had worked with Cadmore Auctions since January 2024; that she had been present on site when Home Office officers had visited on two or three occasions; and that she had checked in with her employer every day prior to her detention.
14. On 16 July 2024 the Applicant was served with notice of intention to remove her from the UK. On 18 July 2024 the Applicant submitted a pre-action protocol challenging the removal decision and on 23 July 2024 she submitted an asylum and human rights claim. She was released from detention on 26 July 2024.
15. On 5 August 2024 Cadmore Actions sent a ‘change in worker circumstances’ notification to the Respondent stating that the Applicant had been put on unpaid leave since 12 July 2024.
16. On 8 August 2024 the Applicant lodged this claim for judicial review. On 18 September 2024 the Respondent filed summary grounds of defence together with a bundle containing written records of the Applicant’s interviews and witness statements by Officers Waller and Lawton and CIO Hanson produced in August and September 2024 for the purposes of the Respondent’s application for forfeiture of the cash seized from the Applicant’s brother’s home.
17. Permission was granted on 11 October 2024 by Upper Tribunal Judge O’Brien. He directed that the Respondent disclose any audio or video records of the Applicant’s interview and copies of correspondence with Cadmore Auctions.
18. On 12 November 2024 the Respondent confirmed to the Applicant’s solicitor that the cash seized was to be returned to the Applicant.
19. The Respondent filed detailed grounds of defence on 19 November 2024, which were accompanied by a 3-page disclosure bundle containing the email dated 12 July 2024 from Officer Waller to Cadmore Auctions and the reply, and a statement by Officer Lawton dated 19 November 2024 confirming that there was no audio or video recording of the interviews.
Legal framework
20. Section 2 of Part 9 of the Immigration Rules set out the grounds for refusing or cancelling an individual’s entry clearance or permission to enter or stay in the UK.
21. The relevant paragraph in this case is paragraph 9.8.8 of the Rules, which provides that:
“Permission (including permission extended under section 3C of the Immigration Act 1971) may be cancelled where the person has failed to comply with the conditions of their permission.”
22. The Respondent has published policy guidance on cancellation of leave (‘Cancellation and curtailment of permission’). The version of the policy applicable at the time of the decision was version 5.0, published on 5 March 2024, but the parties agreed that there were no material differences in the current version of the policy.
23. The policy distinguishes between mandatory grounds for cancellation, including on the basis of exclusion, deportation and criminality, and discretionary grounds for cancellation, which include paragraph 9.8.8. Page 56 of the guidance provides, under the heading “Use of discretion when considering cancellation”:
“In cases where the reasons for cancellation are discretionary, you must not automatically cancel an individual’s entry clearance or permission if there are reasons that suggest it may not be appropriate to do so.
It is the Secretary of State’s responsibility to establish the reasons why an individual’s entry clearance or permission is to be cancelled. You must establish the relevant facts and then carefully consider all an individual’s relevant circumstances and the proven facts of the case before you make a final decision.
…
In cases where you must consider discretion, you must record your consideration and the reasons for your decision on whether to exercise discretion on the casework system. You must also explain your decision on whether you exercised discretion in the decision letter, so an individual can see that you considered the circumstances of their case.
…
Cancellation of permission with immediate effect
…
In discretionary cancellation cases where you would normally cancel permission with immediate effect, you may cancel so that an individual has permission to stay in the UK remaining if there are circumstances which mean that it is not appropriate to cancel with immediate effect.”
24. At page 61, under the heading “Cancellation with immediate effect on discretionary grounds”, the policy provides a non-exhaustive list of circumstances in which immediate cancellation of leave will normally be appropriate on discretionary cancellation grounds. Those include where the individual has been complicit in the reason for the withdrawal of sponsorship or loss of sponsor licence; where the level of non-compliance merits immediate cancellation; and where the individual poses a significant risk to a member or members of the public. Even in those cases where immediate cancellation is normally appropriate, the policy provides that there may be circumstances where leave should be cancelled with a period remaining.
25. Page 64 of the guidance states that a cancellation decision notice must include the grounds for cancellation, the reasons in detail, and the date when permission expires. Where the cancellation ground is discretionary, the policy states that the decision notice must include the reasons why it has been decided that it is appropriate to cancel permission.
Discussion and decision
26. The Applicant’s claim as issued relied on two grounds of challenge:
(i) Ground 1: the Respondent’s decision was based on material errors of fact and was procedurally unfair due to the failure to provide a decision with full reasons and to disclose the records of the Applicant’s interviews; and
(ii) Ground 2: the Respondent had failed to exercise discretion or to consider all relevant factors.
Ground 1
27. In the Applicant’s grounds of claim, Ground 1 criticised the Respondent’s failure to consider material evidence before curtailing the Applicant’s leave. That evidence included evidence that the Applicant was in fact working at Cadmore Auctions as confirmed by her employer, her payslips and her bank statements as well as the previous enforcement visits carried out by the Respondent to Cadmore Auctions.
28. The second aspect of Ground 1 as put in the grounds of claim was procedural unfairness. In summary, the Applicant’s case was that she had been pressured and lied to by the officers during her interview, and had been assured that she would be released from detention if she confessed to illegally working at the nail salon. The Respondent’s failure to disclose the records of the Applicant’s interviews was also relied on.
29. As put in the Applicant’s skeleton argument for the substantive hearing and in oral submissions, the focus of Ground 1 shifted somewhat and focused on (i) the factual dispute between the parties as to the conduct of the interviews and the basis on which the Applicant admitted to working at the nail salon; and (ii) the Respondent’s failure to carry out proper factual enquiries prior to the decision.
Conduct of the interviews
30. The basis on which the Applicant made the admissions during interview that she had been working at Fabulous Nails and not at Cadmore Auctions and that the cash found at her brother’s residence had been earned by her at the nail salon is a matter of significant factual dispute between the parties.
31. The Applicant says in her witness statement that she was frightened, nervous and confused as a result of her arrest and detention; she described being in ‘complete shock’ and shaking during the interview. She makes a number of allegations about the conduct of the interviewing officer, including that she was threatened with immediate deportation and told that if she did not confess to illegal working she would be prohibited from returning to the UK indefinitely. On behalf of the Applicant, Mr Fazli submitted that the propositions which had been put to the Applicant in a single question at the end of the second interview were factually incorrect or had no real evidential basis.
32. The Applicant’s allegations are refuted by the Respondent. Although the Respondent has not filed any statement made for the purpose of the judicial review proceedings, the Respondent relies on the witness statements of the three immigration officers filed in relation to the criminal confiscation proceedings. The Respondent’s detailed grounds of defence maintain that the interviews were not oppressive and that in any event the Applicant had been observed carrying out a pedicure when the immigration officers entered the premises; there was no impropriety. Mr Bedford submitted that I could not resolve the factual dispute as to the conduct of the interviews without cross-examination, because it involved an allegations of coercion and dishonesty by the interviewing officers. Whether the Respondent’s decision was sufficiently informed was a question for the Tribunal but here, the Applicant having been found carrying out a pedicure, there was no other aspect which required the Respondent’s consideration prior to the decision.
Discussion
33. Judicial review is a process of reviewing decision-making and is not primarily directed towards resolving disputes of fact. It is only in an exceptional case that oral evidence, which would normally be required in a civil claim involving this type of factual dispute, will be heard, and then only where it is absolutely necessary for justice to be done: R (Talpada) v SSHD [2018] EWCA Civ 841. The Upper Tribunal does have the power, under Rule 15 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and/or s25 Tribunals, Courts and Enforcement Act 2007, to direct that oral evidence be heard in judicial review proceedings, but that power would normally only be exercised on the application of a party and then only in an exceptional case. Neither party made any application for cross-examination of witnesses in this case.
34. In the event I have not found it necessary to resolve the factual dispute as to the conduct of the interview, or whether the Applicant was subject to improper pressure, given the matters not in dispute between the parties and my conclusions on the other issues in the claim.
35. It is not in dispute that the Applicant was found in the nail salon carrying out a pedicure when officers entered the premises. That was, at the very least, a prima facie breach of the conditions of her leave, because whilst the Applicant was permitted to take secondary employment in addition to her role at Cadmore Auctions that was limited to work in a similar role or in another role on the shortage occupations list. Even if the Applicant were not receiving pay for work in the nail salon, and had just been helping a friend on an unpaid basis as she stated, unpaid work at the nail salon was not for a charitable organisation and was hence not ‘voluntary work’ for the purposes of the Immigration Rules: R (Andrews) v SSHD [2025] EWHC 64 (Admin). The fact that the Applicant had been found working apparently in breach of her conditions therefore gave the Respondent sufficient basis to consider cancellation of leave, whether or not the Applicant’s later admissions in interview were the result of improper pressure.
36. However, because working in breach of conditions is a discretionary ground for cancellation of leave, whether the Applicant was or had been working for Cadmore Auctions in accordance with her conditions of leave was relevant to the decision as to whether to cancel her leave and if so, the decision as to whether to do so with immediate effect. The Respondent was therefore under a public law duty (the Tameside duty1) to take reasonable steps to obtain relevant information to enable a properly informed decision in both respects.
37. Mr Fazli submitted that the Respondent had failed to take such steps prior to the decision, by failing to make proper enquiries or follow up on the information given by the Applicant in her first interview that she was working as permitted for Cadmore Auctions. The Respondent had been, or would have been had proper enquiry been made, aware that the Applicant had been encountered at Cadmore during enforcement visits. The information from Mr Lyons in his email to Officer Waller on 13 July 2024 was relevant information which should have been obtained and considered prior to the decision. On proper enquiry, the Respondent had returned the cash seized from the Applicant’s brother’s home; that indicated that it was not considered to be the proceeds of illegal working. All of this information would have been available had the Respondent made proper enquiries as to the facts prior to the decision.
38. Mr Bedford’s submission on behalf of the Respondent was that once the interviewing officers had “got” the admissions from the Applicant that she was working at the nail salon, there was no need to carry out further enquiries; no further investigation was required. He was unable to explain why, if no further enquiry were needed, Officer Waller had emailed Cadmore Auctions after the cancellation decision had been taken and communicated to the Applicant. Although he accepted that Mr Lyons’ email of 13 July 2024 would have been relevant to the cancellation decision and would have had to have been considered by the Respondent if it had been received prior to the decision, it had been received afterwards; the decision could not be judged by a failure to take into account information which was not available at the time of the decision.
39. I do not accept Mr Bedford’s submissions, which mischaracterise the nature of the Tameside duty. The decision-maker is required to take reasonable steps prior to a decision to ensure that the decision is fully informed. In the Applicant’s case, there was no obvious and immediate urgency to the cancellation decision and the Respondent has not put forward any reason why the decision had to be taken within hours of the Applicant being encountered. The information which the Applicant had given in interview was not consistent: she was initially recorded as saying she worked for Cadmore Auctions, and given some details (albeit brief and lacking in detail) about her employment and salary, before she was recorded as making the statements that she did not work for Cadmore and worked for Fabulous Nails. Although Officer Lawton’s subsequent statement and the cancellation decision both referred to the Applicant as saying she had “never” worked for Cadmore (which the Applicant disputes), that was not recorded in the interview notes and was in any event obviously inconsistent with the Applicant’s first interview. The Applicant was also recorded as giving inconsistent information about whether she had been paid by the nail salon. The suggestion that Cadmore Auctions was advertised as permanently closed at the time of the enforcement visit is clearly at odds with Officer Waller’s email enquiry later that day.
40. The obvious and reasonable step for the decision-maker faced with these inconsistencies and considering whether to cancel the Applicant’s leave was to ascertain whether Cadmore Auctions could confirm her employment there. The Respondent accepts that the information from Cadmore Auctions contained in the 13 July 2024 email from Mr Lyons was relevant to the decision; indeed, it seems to me that the only basis for sending the email to Mr Lyons asking for confirmation of the Applicant’s employment was that the Respondent recognised it was relevant. It would have been reasonable in the circumstances (particularly given that the enforcement visit took place after close of business on a Friday night) to wait to obtain and consider Mr Lyons’ response prior to the decision. Nor did the Respondent take steps to obtain the Applicant’s bank statements and/or payslips from Cadmore Auctions to which she had referred in her first interview, or to obtain a statement from the owner of the nail salon who was present during the enforcement visit. Those were all potentially relevant to the discretionary decision as to whether to cancel the Applicant’s leave for breach of conditions.
41. In the circumstances, I conclude that the Respondent breached the Tameside duty by failing to carry out reasonable enquiries prior to the cancellation decision. Ground 1 of the claim is made out.
Ground 2
42. The Applicant’s second and related ground of challenge is that the Respondent failed to exercise discretion when considering the cancellation decision.
43. On behalf of the Applicant, Mr Fazli submitted that the Respondent’s guidance was clear. Even if the Respondent had had a proper basis for concluding that the Applicant was in breach of the conditions of her leave, the decision-maker was still required to consider (i) whether to cancel the Applicant’s leave as a result of the breach, and (ii) if so, to consider whether to cancel leave with immediate effect or give the Applicant a notice period. The Respondent’s guidance also required that the exercise of discretion be recorded. Mr Fazli submitted that there was no reference, either in the decision or anywhere else, to the exercise of discretion; the Respondent had failed to appreciate there was a discretion or to exercise her discretion taking into account all of the relevant circumstances of the Applicant’s case.
44. For the Respondent, Mr Bedford submitted that in the circumstances in which the Applicant had admitted working in breach of the conditions of her leave, there was no need for the Respondent to exercise discretion. The only question for the Tribunal on review was whether there had been sufficient evidence for the view that the Respondent had formed that the Applicant had breached her conditions.
Discussion
45. It is trite that a public authority on whom a discretionary power is conferred must ensure that the exercise of that discretion is not fettered: the power must be exercised in light of all the relevant circumstances of the case, and not in a rigid or inflexible way. Further, where there is a published policy as to how a discretionary power will be exercised, a decision-maker must follow that policy unless there are good reasons for not doing so in the individual case.
46. The duty to consider discretion, and to avoid fettering discretion, is distinct from but complementary to the Tameside public law duty on the decision-maker to take reasonable steps to ensure that a decision is fully informed. The decision-maker must both consider the exercise of discretion, and ensure that he is sufficiently informed as to factors relevant to the exercise of his discretion; a failure to do either is likely to be unlawful.
47. It is clear from the use of the word ‘may’ in paragraph 9.8.8 of the Immigration Rules, and from the relevant policy guidance on curtailment of leave, that the power to cancel leave for breach of conditions is discretionary. The Respondent’s policy guidance on cancellation requires decision-makers in discretionary cases to exercise discretion in two steps. Where a breach of conditions is made out, the decision-maker must first decide whether in all the circumstances of the case, it is appropriate to cancel leave. Second, if it is appropriate to cancel leave, the decision- maker must decide whether it is appropriate to do so with immediate effect. The policy also requires decision-makers to record the exercise of discretion and the reasons for cancellation in the cancellation notice.
48. The Respondent appears to accept in this case that there was no consideration of discretion. Mr Bedford’s submission was that the Respondent was not required to do so, given the circumstances in which the Applicant was encountered and her subsequent admissions in interview.
49. I am not able to accept that submission, which is inconsistent with both the discretionary wording used in paragraph 9.8.8. of the Immigration Rules and the Respondent’s guidance on cancellation on discretionary grounds. The fact that breach of conditions is a discretionary ground for cancellation means that in each case where a breach is made out, the Respondent must consider whether to cancel leave, and if so whether to do so with immediate effect. The Respondent is obviously not obliged to exercise discretion in the individual’s favour, but must consider the exercise of discretion and record that she has done so. The circumstances in which the conditions of leave have been breached, the level and extent of the breach, and any mitigating circumstances are all obviously relevant factors to be considered in the exercise of the Respondent’s discretion.
50. In the Applicant’s case, the cancellation decision did not record, or make any reference to, the exercise of discretion and the Respondent accepts that discretion was not considered.
51. I have considered whether the failure to do so was material in the circumstances of the Applicant’s case. I have already concluded, in relation to Ground 1, that the Respondent did not take reasonable steps to obtain information relevant to the cancellation decision. Had discretion been considered on a properly informed basis, I do not consider that the inevitable result would have been immediate cancellation of leave. The failure to consider exercising discretion, compounded by the failure to ensure that the decision was sufficiently informed, was material to the outcome. Ground 2 of the claim is also made out.
Conclusion
52. I allow the Applicant’s claim for judicial review on both grounds. The Respondent’s decision of 12 July 2024 to cancel the Applicant’s leave to remain is quashed.
53. I invite the parties to agree an order in appropriate terms.
~~~~0~~~~
In the Upper Tribunal
(Immigration and Asylum Chamber)
Judicial Review
In the matter of an application for Judicial Review
The King on the application of
Thi Lam Thao Dao
Applicant
And
Secretary of State for the Home Department
Respondent
ORDER
BEFORE Upper Tribunal Judge Hirst
HAVING considered all documents lodged and having heard Mr Fazli of counsel, instructed by Aspen Crown Solicitors, for the Applicant and Mr Bedford of counsel, instructed by GLD, for the Respondent at a hearing on 4 February 2025
AND UPON the court having handed down judgment on 3 April 2025
IT IS ORDERED THAT:
(1) The application for judicial review is allowed for the reasons in the attached judgment.
(2) The Respondent’s decision of 12 July 2024 to cancel the Applicant’s skilled worker leave is quashed, with the result that the Applicant’s leave remains valid.
(3) The Respondent shall pay the Applicant’s reasonable costs of these proceedings to be subject to detailed assessment if not agreed.
(4) The Respondent has indicated she wishes to seek application for permission to appeal but no grounds of appeal have been received. Permission to appeal is refused. The appeal does not have a realistic prospect of success and there is no other compelling reason for the appeal to be heard.
Signed: L Hirst
Upper Tribunal Judge Hirst
Dated: 3 April 2025
The date on which this order was sent is given below
For completion by the Upper Tribunal Immigration and Asylum Chamber
Sent / Handed to the applicant, respondent and any interested party / the applicant's, respondent’s and any interested party’s solicitors on (date): 03/04/2025
Solicitors:
Ref No.
Home Office Ref:
Notification of appeal rights
A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.
A party may appeal against such a decision to the Court of Appeal on a point of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).
If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant’s notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal’s decision on permission to appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3).
Case No: JR-2024-LON-002126
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR
3 April 2025
Before:
UPPER TRIBUNAL JUDGE HIRST
- - - - - - - - - - - - - - - - - - - -
Between:
THE KING
on the application of
THI LAM THAO DAO
Applicant
- and -
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
- - - - - - - - - - - - - - - - - - - -
Mr M Fazli
(instructed by Aspen Crown Solicitors), for the Applicant
Mr B Bedford
(instructed by the Government Legal Department) for the Respondent
Hearing date: 4 February 2025
- - - - - - - - - - - - - - - - - - - -
J U D G M E N T
- - - - - - - - - - - - - - - - - - - -
Judge Hirst:
1. The Applicant seeks judicial review of the Respondent’s decision dated 12 July 2024 cancelling her leave to remain as a skilled worker.
Background
2. The Applicant is a national of Vietnam. She first arrived in the UK on 10 January 2019 with leave to remain as a student, which was subsequently extended by in-time applications.
3. On 3 January 2024 the Applicant submitted an application for leave to remain as a skilled worker, which was granted on 5 January 2024 valid until 29 January 2029. The conditions of the Applicant’s leave permitted her to work as a valuer for her sponsor, Cadmore Auctions Ltd, to take supplementary paid employment of up to 20 hours a week with another employer in a job in the same occupation code or on the Shortage Occupation List, and/or to take voluntary work.
4. At around 4.20pm on the afternoon of Friday 12 July 2024 immigration officers made an enforcement visit to Fabulous Nails, a nail salon in Whitley Bay. They encountered the Applicant in the salon carrying out a pedicure.
5. The Applicant was arrested and detained at the local police station, where Immigration Officer Lawton carried out three interviews. In the first interview, which took place from 17:31 to 17:56, the Applicant gave her residential address as an address in Radlett. She told Officer Lawton that she worked for Cadmore Auctions at “3 Potters Bar”; that she travelled there by the 83 bus each day; and gave the first names of her line manager and another colleague. She stated that she was paid approximately £2400 before tax each month and that the money was paid into her bank account; her phone had been left in the nail salon.
6. Whilst Officer Lawton was interviewing the Applicant, other immigration officers entered the Applicant’s brother’s address and seized around £3000 in cash which they found there.
7. Officer Waller telephoned Cadmore Auctions but there was no answer. In a subsequent witness statement dated 10 September 2024, Chief Immigration Officer (‘CIO’) Hanson recorded that on 12 July 2024, Cadmore Auctions “was publically [sic] advertised as permanently closed”. The basis for that belief has not been disclosed.
8. The second interview of the Applicant took place from 18:05 to 18:34. The Applicant was asked why she was working at Fabulous Nails and said that she was helping the owner because he was a friend and had been short of staff; she had helped him out on weekends 2 -3 times since June 2024. The Applicant was asked why she was in Newcastle on a Friday and said that she had come to have a conversation with her brother. The interview record then noted the following questions and answers:
Q: Thao, I do not believe that you are working at Cadmore Auctions. I believe that you work for Fabulous Nails and this is based on evidence found at your premises, the fact that the premises you have been staying at appears to be lived in (rather than stayed at) by you and the fact that Cadmore Auctions is permanently close [sic], this is your opportunity to be honest.
A: I don’t work for cadmore [sic]. I work for Fabulous Nails.
Q: How much are you paid by Fabulous Nails?
A: Cash weekly. Calculated by how many days I work. I am paid £100 per day from half 9 until 6.
9. The third interview took place from 18:35 to 18:39. The Applicant was asked whether the money found at her brother’s address was hers. She answered that it was, and that it was payment from the nail shop for the last 3-4 months.
10. The Applicant does not dispute that she made the admissions recorded in the record of the second and third interviews, but maintains that they were the result of a combination of her own fear, panic and confusion at being detained and questioned, and oppressive conduct in the interview by Officer Lawton.
11. The records of the enforcement visit record that at 18.41 the Applicant was offered voluntary departure from the UK and at 18:53 she was served with notice of liability to removal. The notice informed her that she did not have permission to enter or stay in the UK and referred her to the ‘reasons for decision’ section. That section, which was handwritten, stated in its entirety:
“You were granted leave to remain in the UK as a skilled worker and your sponsor was named as Cadmore Auctions Ltd. Your leave was granted until 29 January 2029. You were encountered at Fabulous Nails and Beauty on 12/07/24 and you later admitted that you have never worked at Cadmore Auctions but in fact worked at Fabulous Nails. This is an offence under s10(1)(a) and a breach under s24(1)(b)(ii) as amended by IA 1999. Subsequently your leave is now cancelled in accordance with section 9.8.8 of Immigration Rules.[sic]”
That is the decision under challenge in this claim.
12. At 23:53 on 12 July 2024, Officer Waller emailed Cadmore Auctions asking for confirmation of details of the Applicant’s employment. On Saturday 13 July at 8.23am, Mark Lyons of Cadmore Auctions responded to the email. He confirmed that the Applicant had been employed full time as a valuer since January 2024, that she was assigned to a project working on a fine art auction due to be held in Hanoi on 27-28 July 2024, and had been working remotely with the Vietnam team. She reported to the office a few times a week but her times were flexible due to the time zone difference with Hanoi. He confirmed that the Applicant was paid monthly by bank transfer. His email concluded:
“We cannot get hold of her since yesterday for the end-of-week schedule check up. If you have any information about her whereabouts and wellbeing we would be much appreciated” [sic]
13. On 15 July 2024 the Applicant’s solicitor wrote an attendance note recording a telephone conversation he had had with Mr Lyons. Mr Lyons was recorded as stating that the Applicant had worked with Cadmore Auctions since January 2024; that she had been present on site when Home Office officers had visited on two or three occasions; and that she had checked in with her employer every day prior to her detention.
14. On 16 July 2024 the Applicant was served with notice of intention to remove her from the UK. On 18 July 2024 the Applicant submitted a pre-action protocol challenging the removal decision and on 23 July 2024 she submitted an asylum and human rights claim. She was released from detention on 26 July 2024.
15. On 5 August 2024 Cadmore Actions sent a ‘change in worker circumstances’ notification to the Respondent stating that the Applicant had been put on unpaid leave since 12 July 2024.
16. On 8 August 2024 the Applicant lodged this claim for judicial review. On 18 September 2024 the Respondent filed summary grounds of defence together with a bundle containing written records of the Applicant’s interviews and witness statements by Officers Waller and Lawton and CIO Hanson produced in August and September 2024 for the purposes of the Respondent’s application for forfeiture of the cash seized from the Applicant’s brother’s home.
17. Permission was granted on 11 October 2024 by Upper Tribunal Judge O’Brien. He directed that the Respondent disclose any audio or video records of the Applicant’s interview and copies of correspondence with Cadmore Auctions.
18. On 12 November 2024 the Respondent confirmed to the Applicant’s solicitor that the cash seized was to be returned to the Applicant.
19. The Respondent filed detailed grounds of defence on 19 November 2024, which were accompanied by a 3-page disclosure bundle containing the email dated 12 July 2024 from Officer Waller to Cadmore Auctions and the reply, and a statement by Officer Lawton dated 19 November 2024 confirming that there was no audio or video recording of the interviews.
Legal framework
20. Section 2 of Part 9 of the Immigration Rules set out the grounds for refusing or cancelling an individual’s entry clearance or permission to enter or stay in the UK.
21. The relevant paragraph in this case is paragraph 9.8.8 of the Rules, which provides that:
“Permission (including permission extended under section 3C of the Immigration Act 1971) may be cancelled where the person has failed to comply with the conditions of their permission.”
22. The Respondent has published policy guidance on cancellation of leave (‘Cancellation and curtailment of permission’). The version of the policy applicable at the time of the decision was version 5.0, published on 5 March 2024, but the parties agreed that there were no material differences in the current version of the policy.
23. The policy distinguishes between mandatory grounds for cancellation, including on the basis of exclusion, deportation and criminality, and discretionary grounds for cancellation, which include paragraph 9.8.8. Page 56 of the guidance provides, under the heading “Use of discretion when considering cancellation”:
“In cases where the reasons for cancellation are discretionary, you must not automatically cancel an individual’s entry clearance or permission if there are reasons that suggest it may not be appropriate to do so.
It is the Secretary of State’s responsibility to establish the reasons why an individual’s entry clearance or permission is to be cancelled. You must establish the relevant facts and then carefully consider all an individual’s relevant circumstances and the proven facts of the case before you make a final decision.
…
In cases where you must consider discretion, you must record your consideration and the reasons for your decision on whether to exercise discretion on the casework system. You must also explain your decision on whether you exercised discretion in the decision letter, so an individual can see that you considered the circumstances of their case.
…
Cancellation of permission with immediate effect
…
In discretionary cancellation cases where you would normally cancel permission with immediate effect, you may cancel so that an individual has permission to stay in the UK remaining if there are circumstances which mean that it is not appropriate to cancel with immediate effect.”
24. At page 61, under the heading “Cancellation with immediate effect on discretionary grounds”, the policy provides a non-exhaustive list of circumstances in which immediate cancellation of leave will normally be appropriate on discretionary cancellation grounds. Those include where the individual has been complicit in the reason for the withdrawal of sponsorship or loss of sponsor licence; where the level of non-compliance merits immediate cancellation; and where the individual poses a significant risk to a member or members of the public. Even in those cases where immediate cancellation is normally appropriate, the policy provides that there may be circumstances where leave should be cancelled with a period remaining.
25. Page 64 of the guidance states that a cancellation decision notice must include the grounds for cancellation, the reasons in detail, and the date when permission expires. Where the cancellation ground is discretionary, the policy states that the decision notice must include the reasons why it has been decided that it is appropriate to cancel permission.
Discussion and decision
26. The Applicant’s claim as issued relied on two grounds of challenge:
(i) Ground 1: the Respondent’s decision was based on material errors of fact and was procedurally unfair due to the failure to provide a decision with full reasons and to disclose the records of the Applicant’s interviews; and
(ii) Ground 2: the Respondent had failed to exercise discretion or to consider all relevant factors.
Ground 1
27. In the Applicant’s grounds of claim, Ground 1 criticised the Respondent’s failure to consider material evidence before curtailing the Applicant’s leave. That evidence included evidence that the Applicant was in fact working at Cadmore Auctions as confirmed by her employer, her payslips and her bank statements as well as the previous enforcement visits carried out by the Respondent to Cadmore Auctions.
28. The second aspect of Ground 1 as put in the grounds of claim was procedural unfairness. In summary, the Applicant’s case was that she had been pressured and lied to by the officers during her interview, and had been assured that she would be released from detention if she confessed to illegally working at the nail salon. The Respondent’s failure to disclose the records of the Applicant’s interviews was also relied on.
29. As put in the Applicant’s skeleton argument for the substantive hearing and in oral submissions, the focus of Ground 1 shifted somewhat and focused on (i) the factual dispute between the parties as to the conduct of the interviews and the basis on which the Applicant admitted to working at the nail salon; and (ii) the Respondent’s failure to carry out proper factual enquiries prior to the decision.
Conduct of the interviews
30. The basis on which the Applicant made the admissions during interview that she had been working at Fabulous Nails and not at Cadmore Auctions and that the cash found at her brother’s residence had been earned by her at the nail salon is a matter of significant factual dispute between the parties.
31. The Applicant says in her witness statement that she was frightened, nervous and confused as a result of her arrest and detention; she described being in ‘complete shock’ and shaking during the interview. She makes a number of allegations about the conduct of the interviewing officer, including that she was threatened with immediate deportation and told that if she did not confess to illegal working she would be prohibited from returning to the UK indefinitely. On behalf of the Applicant, Mr Fazli submitted that the propositions which had been put to the Applicant in a single question at the end of the second interview were factually incorrect or had no real evidential basis.
32. The Applicant’s allegations are refuted by the Respondent. Although the Respondent has not filed any statement made for the purpose of the judicial review proceedings, the Respondent relies on the witness statements of the three immigration officers filed in relation to the criminal confiscation proceedings. The Respondent’s detailed grounds of defence maintain that the interviews were not oppressive and that in any event the Applicant had been observed carrying out a pedicure when the immigration officers entered the premises; there was no impropriety. Mr Bedford submitted that I could not resolve the factual dispute as to the conduct of the interviews without cross-examination, because it involved an allegations of coercion and dishonesty by the interviewing officers. Whether the Respondent’s decision was sufficiently informed was a question for the Tribunal but here, the Applicant having been found carrying out a pedicure, there was no other aspect which required the Respondent’s consideration prior to the decision.
Discussion
33. Judicial review is a process of reviewing decision-making and is not primarily directed towards resolving disputes of fact. It is only in an exceptional case that oral evidence, which would normally be required in a civil claim involving this type of factual dispute, will be heard, and then only where it is absolutely necessary for justice to be done: R (Talpada) v SSHD [2018] EWCA Civ 841. The Upper Tribunal does have the power, under Rule 15 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and/or s25 Tribunals, Courts and Enforcement Act 2007, to direct that oral evidence be heard in judicial review proceedings, but that power would normally only be exercised on the application of a party and then only in an exceptional case. Neither party made any application for cross-examination of witnesses in this case.
34. In the event I have not found it necessary to resolve the factual dispute as to the conduct of the interview, or whether the Applicant was subject to improper pressure, given the matters not in dispute between the parties and my conclusions on the other issues in the claim.
35. It is not in dispute that the Applicant was found in the nail salon carrying out a pedicure when officers entered the premises. That was, at the very least, a prima facie breach of the conditions of her leave, because whilst the Applicant was permitted to take secondary employment in addition to her role at Cadmore Auctions that was limited to work in a similar role or in another role on the shortage occupations list. Even if the Applicant were not receiving pay for work in the nail salon, and had just been helping a friend on an unpaid basis as she stated, unpaid work at the nail salon was not for a charitable organisation and was hence not ‘voluntary work’ for the purposes of the Immigration Rules: R (Andrews) v SSHD [2025] EWHC 64 (Admin). The fact that the Applicant had been found working apparently in breach of her conditions therefore gave the Respondent sufficient basis to consider cancellation of leave, whether or not the Applicant’s later admissions in interview were the result of improper pressure.
36. However, because working in breach of conditions is a discretionary ground for cancellation of leave, whether the Applicant was or had been working for Cadmore Auctions in accordance with her conditions of leave was relevant to the decision as to whether to cancel her leave and if so, the decision as to whether to do so with immediate effect. The Respondent was therefore under a public law duty (the Tameside duty1) to take reasonable steps to obtain relevant information to enable a properly informed decision in both respects.
37. Mr Fazli submitted that the Respondent had failed to take such steps prior to the decision, by failing to make proper enquiries or follow up on the information given by the Applicant in her first interview that she was working as permitted for Cadmore Auctions. The Respondent had been, or would have been had proper enquiry been made, aware that the Applicant had been encountered at Cadmore during enforcement visits. The information from Mr Lyons in his email to Officer Waller on 13 July 2024 was relevant information which should have been obtained and considered prior to the decision. On proper enquiry, the Respondent had returned the cash seized from the Applicant’s brother’s home; that indicated that it was not considered to be the proceeds of illegal working. All of this information would have been available had the Respondent made proper enquiries as to the facts prior to the decision.
38. Mr Bedford’s submission on behalf of the Respondent was that once the interviewing officers had “got” the admissions from the Applicant that she was working at the nail salon, there was no need to carry out further enquiries; no further investigation was required. He was unable to explain why, if no further enquiry were needed, Officer Waller had emailed Cadmore Auctions after the cancellation decision had been taken and communicated to the Applicant. Although he accepted that Mr Lyons’ email of 13 July 2024 would have been relevant to the cancellation decision and would have had to have been considered by the Respondent if it had been received prior to the decision, it had been received afterwards; the decision could not be judged by a failure to take into account information which was not available at the time of the decision.
39. I do not accept Mr Bedford’s submissions, which mischaracterise the nature of the Tameside duty. The decision-maker is required to take reasonable steps prior to a decision to ensure that the decision is fully informed. In the Applicant’s case, there was no obvious and immediate urgency to the cancellation decision and the Respondent has not put forward any reason why the decision had to be taken within hours of the Applicant being encountered. The information which the Applicant had given in interview was not consistent: she was initially recorded as saying she worked for Cadmore Auctions, and given some details (albeit brief and lacking in detail) about her employment and salary, before she was recorded as making the statements that she did not work for Cadmore and worked for Fabulous Nails. Although Officer Lawton’s subsequent statement and the cancellation decision both referred to the Applicant as saying she had “never” worked for Cadmore (which the Applicant disputes), that was not recorded in the interview notes and was in any event obviously inconsistent with the Applicant’s first interview. The Applicant was also recorded as giving inconsistent information about whether she had been paid by the nail salon. The suggestion that Cadmore Auctions was advertised as permanently closed at the time of the enforcement visit is clearly at odds with Officer Waller’s email enquiry later that day.
40. The obvious and reasonable step for the decision-maker faced with these inconsistencies and considering whether to cancel the Applicant’s leave was to ascertain whether Cadmore Auctions could confirm her employment there. The Respondent accepts that the information from Cadmore Auctions contained in the 13 July 2024 email from Mr Lyons was relevant to the decision; indeed, it seems to me that the only basis for sending the email to Mr Lyons asking for confirmation of the Applicant’s employment was that the Respondent recognised it was relevant. It would have been reasonable in the circumstances (particularly given that the enforcement visit took place after close of business on a Friday night) to wait to obtain and consider Mr Lyons’ response prior to the decision. Nor did the Respondent take steps to obtain the Applicant’s bank statements and/or payslips from Cadmore Auctions to which she had referred in her first interview, or to obtain a statement from the owner of the nail salon who was present during the enforcement visit. Those were all potentially relevant to the discretionary decision as to whether to cancel the Applicant’s leave for breach of conditions.
41. In the circumstances, I conclude that the Respondent breached the Tameside duty by failing to carry out reasonable enquiries prior to the cancellation decision. Ground 1 of the claim is made out.
Ground 2
42. The Applicant’s second and related ground of challenge is that the Respondent failed to exercise discretion when considering the cancellation decision.
43. On behalf of the Applicant, Mr Fazli submitted that the Respondent’s guidance was clear. Even if the Respondent had had a proper basis for concluding that the Applicant was in breach of the conditions of her leave, the decision-maker was still required to consider (i) whether to cancel the Applicant’s leave as a result of the breach, and (ii) if so, to consider whether to cancel leave with immediate effect or give the Applicant a notice period. The Respondent’s guidance also required that the exercise of discretion be recorded. Mr Fazli submitted that there was no reference, either in the decision or anywhere else, to the exercise of discretion; the Respondent had failed to appreciate there was a discretion or to exercise her discretion taking into account all of the relevant circumstances of the Applicant’s case.
44. For the Respondent, Mr Bedford submitted that in the circumstances in which the Applicant had admitted working in breach of the conditions of her leave, there was no need for the Respondent to exercise discretion. The only question for the Tribunal on review was whether there had been sufficient evidence for the view that the Respondent had formed that the Applicant had breached her conditions.
Discussion
45. It is trite that a public authority on whom a discretionary power is conferred must ensure that the exercise of that discretion is not fettered: the power must be exercised in light of all the relevant circumstances of the case, and not in a rigid or inflexible way. Further, where there is a published policy as to how a discretionary power will be exercised, a decision-maker must follow that policy unless there are good reasons for not doing so in the individual case.
46. The duty to consider discretion, and to avoid fettering discretion, is distinct from but complementary to the Tameside public law duty on the decision-maker to take reasonable steps to ensure that a decision is fully informed. The decision-maker must both consider the exercise of discretion, and ensure that he is sufficiently informed as to factors relevant to the exercise of his discretion; a failure to do either is likely to be unlawful.
47. It is clear from the use of the word ‘may’ in paragraph 9.8.8 of the Immigration Rules, and from the relevant policy guidance on curtailment of leave, that the power to cancel leave for breach of conditions is discretionary. The Respondent’s policy guidance on cancellation requires decision-makers in discretionary cases to exercise discretion in two steps. Where a breach of conditions is made out, the decision-maker must first decide whether in all the circumstances of the case, it is appropriate to cancel leave. Second, if it is appropriate to cancel leave, the decision- maker must decide whether it is appropriate to do so with immediate effect. The policy also requires decision-makers to record the exercise of discretion and the reasons for cancellation in the cancellation notice.
48. The Respondent appears to accept in this case that there was no consideration of discretion. Mr Bedford’s submission was that the Respondent was not required to do so, given the circumstances in which the Applicant was encountered and her subsequent admissions in interview.
49. I am not able to accept that submission, which is inconsistent with both the discretionary wording used in paragraph 9.8.8. of the Immigration Rules and the Respondent’s guidance on cancellation on discretionary grounds. The fact that breach of conditions is a discretionary ground for cancellation means that in each case where a breach is made out, the Respondent must consider whether to cancel leave, and if so whether to do so with immediate effect. The Respondent is obviously not obliged to exercise discretion in the individual’s favour, but must consider the exercise of discretion and record that she has done so. The circumstances in which the conditions of leave have been breached, the level and extent of the breach, and any mitigating circumstances are all obviously relevant factors to be considered in the exercise of the Respondent’s discretion.
50. In the Applicant’s case, the cancellation decision did not record, or make any reference to, the exercise of discretion and the Respondent accepts that discretion was not considered.
51. I have considered whether the failure to do so was material in the circumstances of the Applicant’s case. I have already concluded, in relation to Ground 1, that the Respondent did not take reasonable steps to obtain information relevant to the cancellation decision. Had discretion been considered on a properly informed basis, I do not consider that the inevitable result would have been immediate cancellation of leave. The failure to consider exercising discretion, compounded by the failure to ensure that the decision was sufficiently informed, was material to the outcome. Ground 2 of the claim is also made out.
Conclusion
52. I allow the Applicant’s claim for judicial review on both grounds. The Respondent’s decision of 12 July 2024 to cancel the Applicant’s leave to remain is quashed.
53. I invite the parties to agree an order in appropriate terms.
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