Tribunal decisions

The decision

Case No: JR-2024-LON-002158
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR

31st July 2025

Before:

UPPER TRIBUNAL JUDGE JACKSON

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Between:

THE KING
on the application of
Ayesha Munir
Applicant
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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Mr A Jafar of Counsel
(instructed by Lawise Solicitors), for the Applicant

Mr J Swain of Counsel
(instructed by the Government Legal Department) for the Respondent

Hearing date: 29th May 2025

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J U D G M E N T

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Judge Jackson:

1. In this application for Judicial Review, the Applicant challenges the Respondent’s decision dated 15 May 2024 which cancelled her leave to remain in the United Kingdom as a Tier 4 (Student) with immediate effect pursuant to paragraph 9.26.1(a) of the Immigration Rules.

2. The Applicant is a national of Pakistan, born on 8 March 1993. She applied for entry clearance to the United Kingdom as a Tier 4 (Student) on 12 January 2024, relying on a ‘Confirmation of Acceptance for Studies Letter’ which set out basic details of her BA in Business and Management course at the University of Central Lancashire (the “University”). The letter confirmed the deposit paid, the start date of the course commencing on 22 January 2024 and the course completion date of 1 June 2026. Further details as to payments and conditions were included and refers to the University having already provided the Applicant with essential information regarding her course, rules and regulations as well as various requirements as to production of original documents and maintenance.

3. The application was granted on 13 January 2024, valid from 15 January 2024 to 1 October 2026. Pursuant to this, the Applicant entered the United Kingdom on 27 January 2024.

4. The University notified the Respondent on 17 April 2024 that they had withdrawn their sponsorship of the Applicant as she had failed to enrol on her course.

5. On 22 April 2024, the University wrote to the Applicant to notify her that they had withdrawn immigration sponsorship following the failure to enrol for the course and the Respondent had been notified of the same.

6. The Respondent’s decision dated 15 May 2024 gave the following reasons:

“You were granted permission as a student under Appendix Student of the Immigration Rules.

Your permission has been cancelled under paragraph 9.26.1a of the Immigration Rules because your sponsor notified the Home Office that you have failed to start your studies on your course within the allocated time. You failed to enrol on your course at University of Central Lancashire on 22 January 2024.

It is not considered that the circumstances in your case are such that discretion should be exercised in your favour. I am satisfied that you have failed to start your studies on your course and that your entry permission should be cancelled because your sponsor notified the Home Office that you failed to enrol.

Your permission is cancelled from 16 May 2024.”

7. On 22 May 2024, the Applicant emailed the University (in response to their email of 22 April 2024) stating that the reason she had not attended any of the classes was because she was under the impression that the semester started in June. She referred to her phone being lost when she arrived in the UK, losing access to all her emails and contacts through her international number and had not had access to the internet pretty much the whole time since the Applicant had been in the UK. The Applicant had only since found the emails sent to her regarding the course and stated that she would like to continue her studies as planned.

8. On 4 June 2024, the University replied to the Applicant. First, they refer to her date of travel to the UK on 27 January 2024 and confirmed that there had only been an offer for the January 2024 intake for the course. Reference was made to paragraph ST 25.3 of the Immigration Rules that a period of leave would only be granted for up to one month before the course start date. Secondly, that as the Applicant had not made any attempt to contact the University and by her own admission had not responded to any correspondence, had not enrolled and had not attended the University; the Respondent had cancelled her visa. Finally, in these circumstances, it would not be possible for the University to sponsor the Applicant.

Preliminary matters

9. This application has a difficult procedural history which is necessary to set out to put in context the preliminary applications made at the outset of the hearing on behalf of the Applicant for (i) relief from sanctions to file the composite bundle and skeleton argument late and in breach of directions; (ii) permission to renew the third ground of challenge; and (iii) for an adjournment of the substantive hearing.

10. In an order sealed on 15 November 2024, Judge Rastogi granted permission on the papers to apply for Judicial Review on the first two grounds of challenge only; refusing permission to rely on a third ground that the Respondent had erred in placing the Applicant on immigration bail on the basis that only the cancellation decision was under challenge and that was not an appropriate basis upon which that decision could be challenged. The Applicant had the usual nine-day period in which to renew her application for permission on the third ground of challenge. She did not do so.

11. In accordance with the order sealed on 15 November 2024, the Applicant was to file and serve no later than 21 days before the hearing, a skeleton argument and a trial bundle. The substantive hearing was initially listed for 16 April 2025 and neither the Applicant’s skeleton argument nor the bundle was filed or served 21 days beforehand (by 26 March 2025) as required.

12. The Applicant sought an adjournment of the hearing and an extension of time to file and serve her skeleton argument and trial bundle on 2 April 2025. The application for adjournment was on the basis that both Counsel previously instructed, Mr Rahman and Mr Jafferji were unavailable for the hearing.

13. In an order sealed on 11 April 2025, Judge Khan granted the request for an adjournment given the unavailability of Counsel, the absence of a skeleton argument and trial bundle and in light of the short time to substantive hearing only a few days later. It was noted that the Applicant’s solicitors should have organised themselves more effectively to ensure compliance with the deadlines in this case. Judge Khan directed the Applicant to file and serve her skeleton argument no later than 2 May 2025 and for the hearing to be relisted on the first available date after 23 May 2025.

14. On 28 April 2025, the Applicant’s solicitors sent an email to the Upper Tribunal requesting the hearing then listed for 29 May 2025 be relisted as Counsel instructed was not available. The solicitors were advised a formal application was needed, but in any event, I refused the request for an adjournment given that sufficient time was available for alternative Counsel to be instructed.

15. On 6 May 2025, the Applicant made a formal application for an adjournment of the hearing on the basis that Counsel instructed was away attending Hajj and alternative Counsel could not be instructed as there was a conditional fee agreement in place. Further that they had been unable to submit a hearing bundle as the Applicant’s skeleton argument was crucial for adequate preparation of the same. For more detailed reasons given in an order sealed on 12 May 2025, I refused the application for an adjournment and ordered the Applicant to file and serve a skeleton argument and hearing bundle no later than 4pm on 16 May 2025.

16. The Applicant failed to comply with the order to file and serve her skeleton argument and bundle by 16 May 2025. There followed a number of requests and reminders to do so from the Upper Tribunal which did not elicit compliance.

17. On 23 May 2025, less than four working days before the hearing, the Applicant’s solicitors sought to renew their application for an adjournment on the same grounds that had already been refused twice and failed to engage with the reasons for refusal already given. The application was refused the same day, with an order for the Applicant to file and serve her skeleton argument and bundle no later than 4pm on 26 May 2025. The same was finally filed and served late on 28 May 2025, the day before the substantive hearing.

18. On 28 May 2025, the Applicant filed and served her skeleton argument and bundle for the hearing the following day, together with an application for an extension of time/relief from sanctions in relation to the same and an application to renew the application for permission to challenge the Respondent’s decision on the third ground.

19. The Applicant’s solicitors explained the delay in filing the skeleton argument and bundle as being due to ‘the confluence of exceptional circumstances’, namely their repeated applications for an adjournment which were all refused. Lawise Solicitors accepted that the breach was serious and stated that it was not the Applicant’s fault but was due to unavailability of Counsel, late notice of the refusal of the (final) adjournment request and an intervening public holiday. It is stated that in all of the circumstances, the Tribunal has a broad discretion to grant relief where the default is inadvertent, justified and non-prejudicial.

20. At the oral hearing I indicated that the Applicant’s skeleton argument and bundle would be accepted despite the lateness of which they were filed purely for practical reasons that it made management of the hearing more efficient on the day and enable all the parties to work from a single bundle. To refuse to do so would only have increased unnecessarily the burden on the Upper Tribunal and the Respondent; both of whom who had already been put to additional inconvenience by the Applicant’s solicitors conduct already.

21. However, I would not have otherwise granted relief from sanctions to admit these documents as the reasons given for the extreme lateness of service the afternoon before the substantive hearing are not accepted. The suggestion of inadvertent lapses or circumstances beyond the solicitors’ control was wholly without merit and their conduct was prejudicial to the Respondent and Upper Tribunal’s preparation for the hearing. The Applicant’s solicitors failed to offer any credible or detailed explanation at all as to why so many orders for the filing of these documents were missed; most of which were not even the subject of any application for an extension of time, which should always be made prior to the deadline and not, in this case, many weeks or months after it had already passed.

22. The unavailability of Counsel for a particular hearing date did not in any way provide an explanation as to why a skeleton argument could not be filed on time (particularly when the earlier deadlines were all at points where the original Counsel were in the country and available and fell within dates proposed by the Applicant’s solicitors themselves); nor did it have any relevance at all for the preparation and filing of a composite bundle.

23. Although the Applicant’s Solicitors have offered some explanation for their failure to comply with some of the deadlines and repeated applications for adjournment, primarily focused on a conditional fee agreement and Counsel’s availability; I do not accept that these were in any way sufficient explanations for the extent of the failures in this case. The Applicant’s Solicitors have, through their poor planning and unprofessional conduct, clearly failed to meet the required expectations to meet basic deadlines and to act with appropriate urgency to prepare for a substantive hearing. Their repeated attempts to avoid a substantive hearing rather than simply taking the required steps to prepare for it was wholly without any credible explanation. Whilst an application for an adjournment is acceptable, it should never be assumed that it would be granted and unless extensions of time are granted, the deadlines remain in place to be complied with. Lawise Solicitor repeatedly failed to do so, without any reasonable explanation. Repeated applications on the same factual basis are not appropriate and should not have been made once, let alone more than once as happened in this case, giving the impression of trying to force an adjournment of the hearing due to their own default in preparation.

24. For these reasons, the documents were admitted on an entirely pragmatic basis for efficiency at the hearing itself and not because Lawise Solicitors had otherwise met any of the tests for relief from sanctions.

25. In relation to the renewed application for permission to rely on a third ground of challenge, it is said that this was made so late because following a recent grant of permission by the Court of Appeal in CA-2024-001768, it has ‘acquired new legal significant and arguability’. That order was made on 7 April 2025, but was said to have only came to the attention of the Applicant’s representatives on 27 May 2025.

26. The Applicant’s original application for permission to apply for Judicial Review was expressly against the decision dated 15 May 2024 to cancel her permission to stay with immediate effect under paragraph 9.26.1(a) of the Immigration Rules. The remedies sought were in relation to the cancellation of leave. Although that decision included, as part of the information about the consequences of the decision, that the Applicant was granted immigration bail subject to conditions, this part of the decision was not identified specifically and no remedy was sought in relation to bail. Despite that, the third ground of challenge was on the basis that the Respondent did not have the power to place the Applicant on immigration bail, nor was doing so in accordance with her policy, ‘Immigration Bail’ version 19.

27. As the final part of the ground of challenge, placing the Applicant on immigration bail was said to have deprived her of an opportunity to make a further application within 14 days of the cancellation of her leave to remain in accordance with the grace period in paragraph 39E of the Immigration Rules. It is this part of the challenge that the Applicant says the grant of permission by the Court of Appeal is relevant to. So far as can be gleaned from the grant itself, that case concerned a person refused leave to remain under SW 2.2 (a suitability criteria for leave to remain as a Skilled Worker that a person must not be in breach of immigration laws (except where paragraph 39E applies), or on immigration bail, although they made an application within 14 days because they were on immigration bail. Lord Justice Nugee considered that the interaction of paragraph 39E of the Immigration Rules and the grant of immigration bail would benefit from consideration by the Court of Appeal.

28. The Applicant did not identify the decision under appeal to the Court of Appeal in the written application or skeleton argument relying on it; nor was Mr Jafar able to assist at the oral hearing as to the facts or nature of that particular case. Instead, Mr Jafar simply relied on the grant of permission that ‘this’ (the paragraph 39E point) warranted further consideration generally and due to the consequences to the Applicant. No such consequences had been identified, for example, although there was some indication that the Applicant had made a fee waiver application, there was nothing further as to whether that had been accepted, whether any substantive application for leave to remain had been made, nor importantly, no indication that any such application had been refused because the Applicant was on immigration bail.

29. In circumstances where this renewed application had been so late, essentially at the substantive hearing, Mr Jafar also suggested the hearing should be adjourned to allow the Respondent to consider and respond to the point and it would otherwise be unfair for the matter to be considered. No such request for an adjournment had been included in the application made only the night before the hearing.

30. The application for permission to renew this final ground was made some six months after the deadline for doing so and more than six weeks after the grant of permission by the Court of Appeal relied upon to show, by analogy, that the point was arguable. There was little by way of explanation for such a long delay and nothing to have prevented the Applicant from pursuing it in time if she considered it had arguable merit. To grant permission on this further ground at the substantive hearing would have also caused prejudice to the Respondent without an adjournment and any adjournment of the hearing would have caused significant further delay to the Applicant herself without any evidence of any actual adverse consequences to her of having been placed on immigration bail. In all the circumstances, there is no good reason to extend time for such a long delay and it is not in the interests of justice to do so. I refused the application at the hearing and proceeded to hear the application on the two grounds upon which permission was granted.

31. There was one final preliminary matter, in that in the Detailed Grounds of Defence, the Respondent had sought permission to cross-examine the Applicant at the hearing on her witness statement. Given the lateness with which the Applicant’s solicitors had prepared this case and in the absence of a separate application by the Respondent; this had not been addressed prior to the hearing. Mr Jafar indicated that the Applicant did not oppose the application (a point not made before the hearing itself) but that she had not attended the hearing to give evidence in the absence of any order to do so.

32. In any event, this is not one of the relatively rare cases in which oral evidence would have been appropriate in a Judicial Review hearing. The Applicant’s evidence does not go to any issue of precedent fact and the application could be fairly determined without oral evidence.

Legal and Policy background

33. Part 9 of the Immigration Rules sets out grounds for refusal and cancellation of leave. So far as relevant to the present case, this provides as follows in paragraph 9.26.1:

The entry clearance or permission of a Student or Child Student may be cancelled if:

(a) they do not start their studies with their sponsor; or…

34. The Respondent’s guidance, ‘Cancellation and curtailment of permission – Version 5.0’ (the “Cancellation Guidance”) which, so far as relevant, provided:

Cancellation decisions: case considerations and use of discretion

…

Requesting further information before cancelling

When to consider asking for further information

You should make a cancellation decision on the basis of the available information, providing that it is sufficient to inform your decision. In the majority of cases, you will be able to make a decision after reviewing the available information but in some circumstances, it may be appropriate for you to ask an individual to provide additional information before making a cancellation decision.

…

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.

You must consider any other facts or evidence about the individual’s circumstances, such as those recorded on CID, provided with an application or stored on a case file that is relevant to your 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.

…

Exceptional or compassionate circumstances

Cancellation may still be appropriate where there are compassionate or exceptional circumstances. It may be appropriate to expect an individual to apply to regularise their stay in another category more appropriate to their circumstances.

For example, where an individual is unable to leave the UK due to pregnancy, serious illness or a serious medical condition …
…

Deciding the date of expiry for cancelled permission

…

Cancellation with immediate effect on discretionary grounds

The following list is not exhaustive, but for discretionary cancellation grounds, immediate cancellation will normally be appropriate where:

• an individual has been knowingly involved in the reason for cancellation, such as cases where:
• a PBS individual was complicit in the actions that resulted in their sponsor losing their licence
• a PBS individual was knowingly involved in the actions that resulted in their sponsor losing their licence
• there is evidence that an individual has fraudulently obtained their permission to enter or stay in the UK and this was material to the decision to grant their permission
• an individual has been involved in a sham marriage or civil partnership

• the level of non-compliance merits immediate cancellation, such as cases where:
• an individual sponsored on a PBS route who has been dismissed by their employer or excluded by their academic sponsor for gross misconduct which is serious enough to mean that they should not be granted 60 days permission to switch to another sponsor
• an individual sponsored on a PBS route whose sponsor ceased trading more than 60 days ago has not switched to another sponsor.

…

Discretionary cancellation: reasons outside an individual’s control

In cases where cancellation is discretionary, if your decision is to cancel an individual’s permission but either:

• the reasons why permission is being cancelled are outside the individual’s control
• it is not clear that an individual has failed to comply with the conditions of their permission

It will normally be appropriate to leave an individual with 60 days permission to stay in the UK. This will allow them either to make an application for further permission to stay or make arrangements to leave the UK. For example:

• when a college decides not to run, or withdraws a course
• if a sponsor loses their licence and an individual was not knowingly involved in the actions that resulted in their sponsor losing their licence
• in breakdown of relationship cases where there is no evidence that the settled spouse has been the victim of domestic violence

…

Cancellation: points-based system: 60 days permission remaining

You must consider cancelling permission to 60 days if an individual granted on a points-based system (PBS) route has ceased work or study, unless you decide it is appropriate to cancel permission with immediate effect (for one or more of the reasons set out above) or to a different date.

…

35. Further guidance was contained in ‘Suitability: Section 5 additional grounds for cancellation of entry clearance, permission to enter and permission to stay – Version 2.0’, (the “Suitability Guidance”) which so far as relevant, provided:

Burden and standard of proof

The burden of proof is on the Home Office to show that grounds for cancellation apply, for example, that the person has ceased to meet the requirements of the Rules for which their entry clearance or permission was granted or that their sponsorship has been withdrawn.

The standard of proof is the balance of probabilities (it is more likely than not). You must be able to show what the relevant grounds are and why, as a result, it is appropriate to cancel the persons permission to enter or stay. This will usually be clear for the context.

You should normally provide the person with an opportunity to say why their permission should not be cancelled and, if you do so, you should include in your decision any representations made and your response to them.

Deciding the cancellation date

When cancelling a person’s entry clearance or permission, you must decide when that cancellation should come into effect. It may not always be appropriate to cancel with immediate effect, so a date in the future may be used, for example where studies are due to end earlier than the original expected date, permission should normally be cancelled from the new end of studies date.

Calculating the new date of expiry for permission cancelled to 60 days (or other period)

Where the reason for cancellation is not the fault of the applicant but is, for example, due to the actions of their sponsor, you should normally allow them 60 days to find a new sponsor. …

…

Requesting further information before cancellation

You should make a cancellation decision based on the available information, providing that is sufficient to inform your decision. In the majority of cases, you will be able to make a decision after reviewing the available information, such as a sponsor notification that the person has ceased work or study.

In some circumstances, it may be appropriate for you to ask a person to provide additional information before making a cancellation decision. For example, you may need further information to decide whether cancellation should be with immediate effect, or the person should be given 60 days (or other period) to make a new application.

…

If you need further information before making a cancellation decision, you must send a ‘minded to cancel’ notice to the person to let them know that you are:

• considering cancelling their permission
• requesting the additional information to inform that decision

…

Student does not start course or ceases to study (9.26.1)

A person on the Student or Child Student route may have their entry clearance or permission cancelled where:

• they have not started their studies with their sponsor
• …

You should consider why the student has not started the course (if known) and how that came to notice. For example, if a student or their sponsor notifies the Home Office that their travel to the UK has been delayed for a month due to illness and they provide medical evidence to show that, it would not normally be appropriate to cancel their entry clearance or permission.

However, if the sponsor notifies the Home Office that the student has not started the course or has stopped attending the course, and the sponsor has not been able to contact them despite attempts to do so over a few weeks, and it appears that the student has therefore ceased to study, it would normally be appropriate to cancel the permission with immediate effect.

…

The Applicant’s written statement

36. In a written statement signed and dated 5 July 2024, submitted with the application for Judicial Review (but not before the Respondent at the date of the decision under challenge), the Applicant states that having arrived in the United Kingdom on 27 January 2024, she collected her BRP card on or around 30 January 2024. At the outset, she states that her impression was that her semester would start in June 2024 so there were no immediate classes for her to attend after arrival.

37. The Applicant states that, “upon arrival in the UK, I lost my mobile leaving me without any contacts.” Further, that as a result, she had no access to her emails, contact numbers or sponsor log in details (as they were linked to her international phone number). The Applicant only regained access to her email in the last week of May 2024, preparing to start her course in June. After regaining access, she informed her sponsor of the incident encountered.

38. The Applicant received an email on 15 May 2024 that her visa had been cancelled with immediate effect, but she had not been given any opportunity to explain her situation before the decision and she had not been given 60 days to apply for further permission to stay or to make arrangements to leave the UK.

39. The Applicant’s Certificate of Sponsorship letter confirmed that she had deposited approximately £7000 which demonstrated her intention and seriousness to pursue her studies and after investing a significant amount of money, would never jeopardise her future. The Applicant had no intention of discontinuing her studies and wished to continue with her studies.

Grounds of challenge

40. The Applicant was granted permission to challenge the Respondent’s decision dated 15 May 2024 on two grounds. First, that the Respondent’s decision was procedurally unfair because the Applicant was not given an opportunity to respond prior to the decision being taken; and secondly, that the Respondent’s decision failed to follow the published policy guidance, the Cancellation Guidance, in that the Applicant was not granted a period of 60 days in which to either leave the United Kingdom or make an application for further leave to remain.

Ground 1 – procedural fairness

41. The Applicant’s case on the first ground of challenge is that the Respondent’s decision was procedurally unfair as it cancelled her leave to remain with immediate effect, rendering her an overstayer instantly, without any opportunity for her to respond to the concerns raised. In the circumstances of this case, the Applicant was ‘significantly detrimentally affected’ by the Respondent’s decision, with foreseeable consequences for her (albeit these were not expressly identified).

42. At the oral hearing, Mr Jafar relied on the Applicant’s skeleton argument and its reference specifically to the requirements of procedural fairness as considered in R (ota Pathan) v Secretary of State for the Home Department [2020] UKSC 41 at 55, 104, 161; and R (ota Taj) v Secretary of State for the Home Department [2021] EWCA Civ 19 at 48-9. There was in essence no dispute between the parties that the requirements of procedural fairness in a particular case were an objective assessment and a question of law, with the nature of the obligation depending on the subject matter and context.

43. The essence of Mr Jafar’s submissions on behalf of the Applicant were that it was for the Respondent to establish the relevant facts in circumstances where there was a discretion as to whether to cancel the Applicant’s leave with immediate effect or give her 60 days to find an alternative sponsor. If the Respondent had done so, the Applicant could have given an explanation as she has in her witness statement that she had not received any communication from the University, had lost access to her phone and email account and believed that her course started in June. In such circumstances, she was not in any way dishonest or complicit in relation to her failure to enrol and it would have been open to the Respondent, in accordance with her guidance, to give the Applicant 60 days notice before cancellation of her leave to remain.

44. I asked Mr Jafar if in practical terms if the Respondent had given the Applicant an opportunity to respond prior to the decision whether it would have assisted given the Applicant’s case that she had no access to her phone number or email. He stated that we know the Applicant had access from 22 May 2025 when she responded to the University, so she would have been able to respond at that time.

45. On behalf of the Respondent, Mr Swain maintained that there was no procedural unfairness in the decision to cancel the Applicant’s leave to remain with immediate effect. The Confirmation of Acceptance of studies letter was clear that the course started in January 2024 and the Applicant’s own mistake or misunderstanding as to this does not affect the fairness of a decision based on her failure to enrol. It is for the Applicant to comply with the terms of her visa and no discretion is required to be considered for the same.

46. Mr Swain submitted that the Respondent had sufficient information from the University that the Applicant had not enrolled in her course and their sponsorship for her had therefore been withdrawn. No further information was needed to enable a decision to be undertaken and to be procedurally fair given there was no ambiguity in what had happened.

47. The Respondent further relies on the operational intention of the points based system to be simple, predictable and expeditious and in circumstances where a person does not satisfy their conditions for leave; there is normally no need for any further inquiry before a decision can be taken on clear facts. This is not a case in which there has been any allegation of dishonesty, where a minded to process may be required.

48. As to the Applicant’s ex poste facto explanation for her failure to enrol, it was questionable; but even taken at its highest, it did not suggest of any reasons for the failure that were outside of the Applicant’s control. It is notable that in any event, the Applicant had only entered the United Kingdom after the start date of her course, which had already passed before she claims to have lost her phone and email access. The Applicant has not included any explanation at all within her statement as to why she arrived after her course start date or why she thought the course commenced in June 2024.

49. At the hearing, Mr Swain questioned the Applicant’s lack of explanation for what happened and submitted that what was said in her witness statement was not plausible or credible. However, he did not have instructions to expressly make a submission that even had this explanation been given prior to the decision being made, the outcome would have been the same; albeit there are very strong grounds for considering that it would have been.

50. As accepted by the parties, the requirements of fairness in a particular case depends on the facts and context of the particular situation. In the Applicant’s case, there is nothing at all to suggest that there was any requirement on the Respondent to contact her before making the decision under challenge to ask for any further information or explanation as to why she failed to enrol on her course. The Applicant had a clear start date in January 2024, before she had even arrived in the United Kingdom. She failed to enrol on the required date and failed to enrol or even contact the University at all after her arrival in the United Kingdom. The University made at least one attempt (and in the Applicant’s own email to them on 22 May 2025, more than one attempt) to contact her about her failure to enrol and received no response. The information given to the Respondent by the University was clear and unambiguous, the Applicant had failed to enrol for the start of her course and as such, her sponsorship had been withdrawn.

51. This was not a case in which there has ever been any suggestion of fraud, or dishonesty by the Applicant and nothing to suggest that she did not have the required knowledge of her start date. Her complete lack of contact with either sponsor or the Respondent only reinforced the basic fact, sufficient for cancellation of leave under paragraph 9.26.1(a) of the Immigration Rules; that she had failed to enrol in her course as per the conditions of her leave to remain as a student.

52. In all of these circumstances and particularly in the context of the points-based system which, as the Courts have confirmed on many occasions, requires certainty and simplicity; the Respondent was not required to invite the Applicant to respond to the likely cancellation of her leave to remain for failure to enrol on her course as required in January 2024. This outcome is also entirely consistent with the Respondent’s policy guidance set out above that a cancellation decision should normally be made on the basis of available information, having established the relevant facts. In the present case, the facts were clear and ultimately, not in dispute by the Applicant that she failed to enrol and without any evidence to support her claimed misunderstanding of the course start date.

53. In any event, even if I had found that there had been procedural unfairness in the Respondent’s approach, I would not have granted any relief on the basis of section 31(2A) of the Senior Courts Act 1981 as the outcome for the Applicant would not have been substantially different even if she had been given an opportunity to respond prior to the decision being taken. First, there is a real practical question as to whether the Applicant would have even seen any communication from the Respondent prior to the decision on 15 May 2024 given that her own case is that she did not have any access to her phone or email until late May 2024. The Applicant was not precise about exactly where she lost access or when she regained it, although as there is evidence of an email sent by her on 22 May 2024, it can be assumed she had regained access by then. However, that was still a week after the decision had been taken and she had failed to respond to messages from the University prior to that. There is significant doubt that she would have seen or responded to any communication from the Respondent.

54. Secondly, there is considerable force in the Respondent’s submissions as to the plausibility and credibility of the Applicant’s explanation given after the decision to cancel her leave to remain. In my view, her written statement raises more questions than it provides answers, it lacks detail and clarity as to what happened when and fails to address obvious issues. The Applicant offers no explanation at all as to why she thought, contrary to the clear documentation in her Confirmation of Acceptance of Studies, that her course started in June 2024 or why she arrived in the United Kingdom after her start date. It is also entirely unexplained as to why she made no contact at all with the University or with the Respondent to provide them with new contact details, or explain that she was unable to access those that they held for her at any time from the end of January 2024. It is implausible that she would have been in the United Kingdom for a period of some four months, in expectation of a course starting in June 2024 but not making any contact at all during that time or checking any details in preparation for enrolling even if she was mistaken as to the course starting in June 2024.

55. Thirdly, for the reasons set out below in relation to the Respondent’s guidance, even taking the Applicant’s explanation at its highest, this was not a case in which the factual matrix fell within the examples given where discretion would normally be exercised in the Applicant’s favour to allow her a period of 60 days within which to regularise her position. There are no exceptional or compassionate circumstances, the Applicant’s failure to enrol on time was entirely her own fault with no factors beyond her control that contributed to it (given that she could and should have arrived before her start date and could and should have been in touch with her sponsor and the Respondent as to her contact details).

Ground 2 – breach of the Respondent’s guidance

56. The Applicant’s case on the second ground of challenge is that the Respondent failed to act in accordance with the Cancellation Guidance in that (i) the Respondent had not discharged the burden of proof on her that the Applicant had failed to start her course (which she disputes); (ii) should have allowed the Applicant 60 days within which to find a new sponsor; and (iii) required the Respondent to have been satisfied that the sponsor had not been able to contact the Applicant despite attempts to do so over a few weeks for leave to be cancelled with immediate effect and there was no such evidence before the Respondent.

57. The second two points are in essence that the Respondent should not have cancelled leave with immediate effect because she first, failed to take into account any reasons by the Applicant for failing to attend her course; secondly, had insufficient evidence to establish any breach by the Applicant; thirdly, there was no consideration of all of the relevant circumstances; and finally, because there was a failure to consider whether cancellation with immediate effect was appropriate due to the seriousness of the Applicant’s breach.

58. At the oral hearing, Mr Jafar submitted that the second ground of challenge was closely related to the first and again emphasised that there had been no dishonesty by the Applicant and without this, in accordance with the policy, there were no grounds for immediate cancellation of her leave to remain. He further emphasised that there had to have been effective communication by the University on more than one occasion, but there is only evidence of a single email, even if the Applicant herself referred to emails in the plural.

59. In relation to the start date of January 2024, Mr Jafar acknowledged that there was no explanation from the Applicant for her claimed understanding that the course started in June and that would have been a point which could have been put to her in cross-examination. It could however be inferred that without any issues of dishonesty, it would have been to the Applicant’s own detriment not to comply with the start date of her course. It can be inferred that this, combined with the loss of her phone and email access was an honest mistake which falls between the two different extremes of examples in the policy guidance.

60. On behalf of the Respondent, a number of submissions overlapped with those in relation to the first ground of challenge, which are not repeated again. The Respondent’s position is in essence that the policy set out as above was followed in the Applicant’s case. The facts of her failure to enrol were not ones which fell within any of the examples given in the guidance as to cases where it may be appropriate as an exercise of discretion to cancel leave to remain to 60 days rather than with immediate effect. The failure to enrol was a situation entirely within the Applicant’s control and she simply failed to do so on time. The Confirmation of Acceptance of Studies was clear as to the start date of the course. As to what happened after this, it was the Applicant’s responsibility to maintain contact with her sponsor and the Respondent and ensure that either she had access to the contact details she had given, or updated these with her sponsor and Respondent. The Respondent is not responsible for the failure to do so, nor would this be a reason for the exercise of discretion.

61. The first aspect as to compliance with the Respondent’s guidance overlaps with the procedural fairness point and has already been set out above in relation to the first ground of challenge. On the basis of the guidance, the Respondent should normally make a decision on the available information providing that it is sufficient to inform it. On the facts of this case, where the University had confirmed to the Respondent that the Applicant had not enrolled on her course as required, the facts were entirely clear and no further information was required before cancelling the Applicant’s leave to remain. Although the Applicant claims that she understood her course was due to start in June, there is no dispute that she did not enrol as required in January 2024 and the communication from the University established that.

62. There was no suggestion or claim by the Applicant that there were any exceptional or compassionate reasons as to why her leave to remain should not have been cancelled. The second aspect as to compliance with the Respondent’s guidance was not therefore on cancellation per se, but whether the Applicant’s leave to remain should have been cancelled with immediate effect or with 60 days notice.

63. The Respondent’s Cancellation Guidance, as set out above so far as relevant to this case, sets out the discretion available as to the period before cancellation takes effect. The guidance provides a non-exhaustive list of examples in which it would normally be appropriate for cancellation to have immediate effect (such as where the Applicant was involved in the reason for cancellation or where their conduct showed a significant level of non-compliance) and a non-exhaustive list of examples where a longer period of up to 60 days notice would normally be appropriate (such as where the reasons for cancellation were outside of the individual’s control, because a course is not run or a sponsor loses its licence; focusing on the actions of the sponsor).

64. The examples given in the Cancellation Guidance are at the two ends of the spectrum, whether either an individual’s conduct is such that immediate cancellation would be appropriate because of fraud, dishonesty, significant non-compliance and at the other end, where it is the sponsor’s conduct which has given rise to the reasons for cancellation through no fault of the individual, where a period of up to 60 days notice would be more appropriate. The present facts do not fall squarely within either end of this spectrum. There is no fraud or dishonesty or significant non-compliance similar to that set out in the guidance where immediate cancellation would normally be appropriate. Nor is there any fault of the sponsor in this case, who sent clear instructions to the Applicant as to the start date of her course and contacted her about her failure to enrol, without response.

65. The Respondent’s Suitability Guidance is consistent with the Cancellation Guidance in the types of examples they give as to appropriate cases for immediate cancellation as against appropriate cases for a longer notice period. However, the Suitability Guidance also deals more specifically with cases such as the present one where leave to remain is cancelled pursuant to paragraph 9.26.1 of the Immigration Rules.

66. In the section ‘Student does not start course or ceases to study (9.26.1)’ the first paragraph after the bullet points does not apply to the Applicant – she did not notify the Respondent of any reason for not starting her course, such as illness or delay to her travel (in fact no explanation has still been given as to why she travelled after her course start date, even if the remainder of her explanation after the decision was accepted). As above, there were no exceptional or compassionate reasons for the delay, ultimately, the Applicant failed to arrive in time to start her course and thereafter failed to contact the University or the Respondent, having misunderstood clear instructions as to her start date.

67. The next paragraph in that section is directly applicable to this Applicant. That provides that:

However, if the sponsor notifies the Home Office that the student has not started the course or has stopped attending the course, and the sponsor has not been able to contact them despite efforts to do so over a few weeks, and it appears that the student has therefore ceased to study, it would normally be appropriate to cancel the permission with immediate effect.

68. Whilst there is no copy of more than one email from the University to the Applicant about her failure to enrol, nor details given of the date of any other correspondence, the Applicant’s email to the University dated 22 May 2024 refers to ‘emails’, plural, from the University to her. I am satisfied that on balance, this particular paragraph in the Suitability Guidance is directly on point and relevant to the Applicant’s circumstances. The Respondent was entitled to rely on the communication from the University without more specific details as to attempts by them to contact the Applicant (which in any event it is established they did). The Respondent’s decision to cancel the Applicant’s leave with immediate effect is entirely in accordance with it and there is nothing to suggest that any other outcome would be appropriate (for example, as already stated, no exceptional circumstances or circumstances actually outside of the Applicant’s control). The outcome was entirely in accordance with the guidance and would be the same with or without the Applicant’s explanation as contained in her witness statement.

69. In these circumstances, the Respondent’s process in terms of decision making and substantive decision to cancel the Applicant’s leave to remain with immediate effect was entirely in accordance with the guidance set out in both the Cancellation Guidance and the Suitability Guidance.

Conclusion

70. For all of the reasons given above, this application for Judicial Review is dismissed. There was no procedural unfairness nor any failure by the Respondent to follow her own guidance in deciding to cancel the Applicant’s leave to remain with immediate effect for her failure to enrol in her course.

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