Tribunal decisions

The decision

Case No: JR-2025-LON-000068
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR

Before:

UPPER TRIBUNAL JUDGE MAHMOOD

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Between:

THE KING
on the application of
MAHIBUR RAHMAN CHOWDHURY
Applicant
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

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Mr Zane Malik of King’s Counsel
(instructed by Legit Solicitors), for the Applicant

Mr Michael Biggs of Counsel
(instructed by the Government Legal Department) for the Respondent

Hearing date: 24 October 2025

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J U D G M E N T

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Judge Mahmood:

1. In this matter I deal with the Applicant’s application for Judicial Review against the Respondent’s decision dated 9 October 2024 to cancel his leave to enter and remain.

The Background:

2. The Applicant is a national of Bangladesh. He was born on 15 October 1994. On 16 January 2024 the Applicant applied for permission to enter the United Kingdom as a dependent partner of a skilled worker. His partner being his wife. The application was granted on 17 January 2024, and the Applicant was granted entry clearance valid to 22 January 2025. The Applicant states that he entered the UK in March 2024.

3. On 9 October 2024 the Applicant was encountered by immigration officers at an enforcement visit to a restaurant. The Applicant was arrested and detained and his leave to enter was cancelled.

The Procedural History and Applications

4. On 11 October 2024 the Applicant claimed asylum and was granted immigration bail.

5. On 15 October 2024 the Applicant was released from detention.

6. On 8 November 2024 the Applicant attended an asylum screening interview.

7. On 19 November 2024 the applicant submitted a Pre-Action Protocol letter challenging the Respondent’s failure to issue an Application Registration Card (ARC) specifying that the Applicant had permission to work. It was claimed that the Applicant had the benefit of section 3C of the Immigration Act 1971.

8. On 7 January 2025 the Applicant filed this application for permission to apply for Judicial Review.

9. On 9 January 2025 the Respondent replied to the Pre-Action Protocol letter and provided disclosure.

10. On 17 February 2025 the Respondent filed and served her acknowledgment of service and summary grounds of defence.

11. On 23 May 2025 Upper Tribunal Judge Lodato refused permission to apply for Judicial Review on consideration of the papers.

12. The Applicant renewed the application for permission to apply for Judicial Review. Upper Tribunal Judge O’Brien granted the Applicant permission on limited grounds at an oral renewal hearing on 25 June 2025. The learned Judge explained in his written decision that permission had been granted only on 2 grounds:

“[10]. ...that the respondent acted procedurally unfairly in making her decision on 9 October 2024 without further investigation of the apparently false proposition put to the applicant in interview [that he had breached his leave conditions] and his intimated asylum claim and/or acted unreasonably in failing to consider an[d] exercise of her discretion to grant a period of grace in which the applicant could properly make an asylum claim. Consequently, I grant permission only to advance those arguments only.”

13. The Judge further explained his reasoning at paragraph 9 of his decision:

“[9]. … Any reasonable decision maker should know the conditions of the applicant’s visa, and therefore that the applicant has made an admission to a potentially misleading proposition. Moreover, I do consider that it was tolerably clear that the applicant intended to intimate an asylum claim. It is arguable that any rational respondent in such circumstance should have considered whether, in accordance with the applicable guidance, it was necessary to give the applicant a period of grace, in which those matters could be further investigated….”

The Legal Framework

14. Section 3(1) of the Immigration Act 1971 (“the 1971 Act”) provides:

“Except as otherwise provided by or under this Act, where a person is not a British citizen;

(a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, this Act;

(b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period.”

The power to impose conditions on any such leave arises pursuant to section 3(1)(c), which provides:

“if he is given limited leave to enter or remain in the United Kingdom, it may be given subject to all or any of the following conditions, namely—

(i) a condition restricting his work or occupation in the United Kingdom;

(ia) a condition restricting his studies in the United Kingdom;

(ii) a condition requiring him to maintain and accommodate himself, and any dependants of his, without recourse to public funds;

(iii) a condition requiring him to register with the police.

(iv) a condition requiring him to report to an immigration officer or the Secretary of State; and

(v) a condition about residence.”

Section 3(2) of the Immigration Act 1971 refers to the Immigration Rules as follows:

“The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances …”
15. Part 9 of the Immigration Rules sets out general rules for refusing applications for leave to enter or remain, and for cancelling leave.
16. Paragraphs 9.8.8 and 9.23.1 within Part 9 of the Immigration Rules provide:
“9.8.8. 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 …
Ceasing to meet requirement of rules
9.23.1. A person’s entry clearance or permission may be cancelled if they cease to meet the requirements of the rules under which the entry clearance or permission was granted.”
17. Section 3(3)(a) of the Immigration Act 1971 confers power on the Respondent to vary limited leave to remain by reducing its duration, including by ending the remaining period of leave by an immediate cancellation of that leave.
18. This power is discretionary, but its exercise will be informed by the Immigration Rules and relevant policy. Accordingly, a decision to cancel leave to enter or remain falls to be reviewed against Wednesbury principles and does not raise an issue of ‘precedent fact’: R (Kanwal) v SSHD [2021] EWHC 2071 (Admin) at [41]-[44] and R (Giri) v SSHD [2015] EWCA Civ 784, [2016] 1 WLR 4418 at [30].
19. In R v Secretary of State for the Home Department Ex p Doody [1994] 1 AC 531, 560, Lord Mustill said as follows which sets out the rule for common law fairness:
“In my view, the rule is that, before a statutory power is exercised, any person who foreseeably would be significantly detrimentally affected by the exercise should be given the opportunity to make representations in advance, unless (i) the statutory provisions concerned expressly or impliedly provide otherwise or (ii) the circumstances in which the power is to be exercised would render it impossible, impractical or pointless to afford such an opportunity. I would add that any argument advanced in support of impossibility, impracticality or pointlessness should be very closely examined, as a court will be slow to hold that there is no obligation to give the opportunity, when such an obligation is not dispensed with…”
20. As Mr Biggs said in his skeleton argument, the relevant principles in respect of procedural fairness within an immigration law context were summarised in R (Kanwal) v SSHD [2022] EWHC 110 (Admin) at [48]:
“(1) the Defendant was under a duty to act procedurally fairly in respect of the decisions challenged in this case: see R (Mohibullah) v. SSHD (TOEIC - ETS - judicial review principles) [2016] UKUT 561 (IAC) at (78) (general duty on Secretary of State to act procedurally fairly in immigration cases); and
(2) The question of whether there has been procedural fairness or not is an objective question for the Court to decide for itself. The question is not whether the decision-maker has acted reasonably, still less whether there was some fault on the part of the public authority concerned: see R (Balajigari) and Ors. v SSHD [2019] EWCA Civ 673, [2019] 1 WLR 4647 ("Balajigari") at [46] and R (Osborn) v. Parole Board [2013] UKSC 61, [2014] AC 1115 at [65]).
(3) "… [3] The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken…
[5] Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both.
[6] Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests, fairness will very often require that he is informed of the gist of the case which he has to answer." per Lord Mustill in R v Home Secretary ex p. Doody [1994] 1 AC 531 at 570.
(4) "Although the courts cannot and have not purported to lay down rules of general application, there is a broad consensus in the decisions of appellate courts as to the factors that affect what is required in a given context. That consensus runs from Lord Upjohn's important statement in Durayappah v. Fernando [1967] 2 AC 337 at 349 to the refinements in more recent cases such as Lloyd v. McMahon [1987] AC 625 at 702, and Doody and Osborn's cases. The factors include the nature of the function under consideration, the statutory or other framework in which the decision-maker operates, the circumstances in which he or she is entitled to act and the range of decisions open to him or her, the interest of the person affected, the effect of the decision on that person's rights or interests, that is, the seriousness of the consequences for that person. The nature of the function may involve fact-finding, assessments of matters such as character and present mental state, predictions as to future mental state and risk, or policymaking. The decision- maker may have a broad discretion as to what to do or may be required to take into account certain matters, or to give them particular or even dispositive weight. The decision may affect the individual's rights and interests, and its effect can vary from a minor inconvenience to a significant detriment." per Beatson LJ in R (Howard League for Penal Reform & Anor) v. The Lord Chancellor [2017] EWCA Civ 244, [2017] 4 WLR 92 at [38].
(5) In Re HK (An Infant) [1967] 2 QB 617, an immigration officer suspected that HK, a Pakistani national seeking to enter the UK as the son of a Pakistani national ordinarily resident in the UK was older than the date stated on the passport presented. Lord Parker C.J observed at p.630:
"I doubt whether it can be said that the immigration authorities are acting in a judicial or quasi-judicial capacity as those terms are generally understood. But at the same time, I myself think that even if an immigration officer is not in a judicial or quasi-judicial capacity, he must at any rate give the immigrant an opportunity of satisfying him of the matters in the subsection, and for that purpose let the immigrant know what his immediate impression is so that the immigrant can disabuse him. That is not, as I see it, a question of acting or being required to act judicially, but of being required to act fairly. Good administration and an honest or bona fide decision must, as it seems to me, require not merely impartiality, nor merely bringing one's mind to bear on the problem, but acting fairly; and to the limited extent that the circumstances of any particular case allow, and within the legislative framework under which the administrator is working, only to that limited extent do the so-called rules of natural justice apply, which in a case such as this is merely a duty to act fairly. [emphasis added]"
(6) The requirement of procedural fairness applies in respect of an entitlement to address an immigration officer in other contexts: R (Humnyntskyi & Ors) v. SSHD [2020] EWHC1912 at [270] (entitlement of foreign national offenders inter alia, to make representations in advance of a decision as to whether to provide bail accommodation, and to know what factors will be considered significant by the decision maker); Gaima v. SSHD [1989] Imm AR 205 (an overstayer who claimed asylum where the issue in that case was that the SSHD had not put to an asylum seeker the matters taken into account in assessing their sincerity and credibility.)
(7) In Balajigari in the judgment of the Court (Underhill, Hickinbottom and Singh LJJ), it was said as follows:
"[55]…where the Secretary of State is minded to refuse ILR on the basis of paragraph 322 (5) on the basis of the applicant's dishonesty, or other reprehensible conduct, he is required as a matter of procedural fairness to indicate clearly to the applicant that he has that suspicion; to give the applicant an opportunity to respond, both as regards the conduct itself and as regards any other reasons relied on as regards "undesirability" and the exercise of the second-stage assessment; and then to take that response into account before drawing the conclusion that there has been such conduct.
[56] We do not consider that an interview is necessary in all cases. The Secretary of State's own rules give a discretion to him to hold such an interview. However, the duty to act fairly does not, in our view, require that discretion to be exercised in all cases. A written procedure may well suffice in most cases."
[60] …unless the circumstances of a particular case make this impracticable, the ability to make representations only after a decision has been taken will usually be insufficient to satisfy the demands of common law procedural fairness. The rationale for this proposition lies in the underlying reasons for having procedural fairness in the first place. It is conducive to better decision-making because it ensures that the decision-maker is fully informed at a point when a decision is still at a formative stage. It also shows respect for the individual whose interests are affected, who will know that they have had the opportunity to influence a decision before it is made. Another rationale is no doubt that, if a decision has already been made, human nature being what it is, the decision-maker may unconsciously and in good faith tend to be defensive over the decision to which he or she has previously come. [emphasis added]"
(8) R. v. Hackney London Borough Council, ex p Decordova (1995) 27 HLR 108 at p.113 where Laws J observed: "… where an authority lock, stock and barrel is minded to disbelieve an account given by an applicant for housing where the circumstances described in the account are critical to the issue whether the authority ought to offer accommodation in a particular area, they are bound to put to the applicant in interview, or by some appropriate means, the maters that concern them. This must now surely be elementary law in relation to the function of decision-makers in relation to subject matter of this kind. It applies in the law of immigration, and generally where public authorities have to make decisions which affect the rights of individual persons. If the authority is minded to make an adverse decision because it does not believe the account given by the applicant, it has to give the applicant an opportunity to deal with it."
(9) The fairness of the procedure used by the defendant falls to be evaluated at the date of the impugned procedure and decision, not in retrospect. What was unfair then remains unfair now: see R (Pathan) v. SSHD [2020] UKSC 41, [2020] 1 WLR 4506 at [131]-[135]. “
21. Mr Malik referred to Bank Mellat v HM Treasury [2013] UKSC 39; [2014] AC 700 which had reconciled all earlier authorities on the subject of procedural unfairness. Lord Neuberger, at [179], identified “the rule” in these terms:
“In my view, the rule is that, before a statutory power is exercised, any person who foreseeably would be significantly detrimentally affected by the exercise should be given the opportunity to make representations in advance, unless (i) the statutory provisions concerned expressly or impliedly provide otherwise or (ii) the circumstances in which the power is to be exercised would render it impossible, impractical or pointless to afford such an opportunity. I would add that any argument advanced in support of impossibility, impracticality or pointlessness should be very closely examined, as a court will be slow to hold that there is no obligation to give the opportunity, when such an obligation is not dispensed with in the relevant statute.”
22. This approach, as held in Balajigari v Secretary of State for the Home Department [2019] EWCA Civ 673; [2019] 1 WLR 4647, Pathan v Secretary of State for the Home Department [2020] UKSC 41; [2021] 2 All ER 761 and Prestwick Care v Secretary of State for the Home Department [2025] EWCA Civ 184, applies to the decisions made under the Immigration Rules.

23. Mr Malik also states and with which I agree:

“In Balajigari, the Court of Appeal reviewed the operation of general grounds in Part 9 of the Immigration Rules. The Court considered Paragraph 322(5) of the Immigration Rules that sets out the grounds on which an application “should normally be refused”. After considering earlier authorities on the subject, the Court, at [55], concluded (emphasis added):

“… we have come to the conclusion that where the Secretary of State is minded to refuse ILR on the basis of paragraph 322 (5) on the basis of the applicant's dishonesty, or other reprehensible conduct, he is required as a matter of procedural fairness to indicate clearly to the applicant that he has that suspicion; to give the applicant an opportunity to respond, both as regards the conduct itself and as regards any other reasons relied on as regards "undesirability" and the exercise of the second-stage assessment; and then to take that response into account before drawing the conclusion that there has been such conduct.””

The Parties Submissions Summarised

24. Mr Malik submitted that when considering the facts in Balajigari the position in this Applicant’s case was a fortiori, (all the more certain) because there is not even a presumption of cancelation in Paragraphs 9.8.8 and 9.23.1 of the Immigration Rules. Especially when comparing “should normally be refused” with “may”. Mr Malik further submitted that the Secretary of State’s published policy guidance, “Cancellation and curtailment of permission” at page 54, acknowledges that the guidance in Balajigari, in principle, applies to cancellation decisions and the Applicant must be given an opportunity to address any allegation before a cancellation decision is made.

25. Mr Malik said that there was no doubt that the Applicant was “significantly detrimentally affected” by the Secretary of State’s decision. He said that the consequences were quite serious for the Applicant and that the Secretary of State was obliged to put the Applicant on notice and invite representations by adopting a “minded to cancel” process before making any cancellation decision. He said that there was no such invitation given to the Applicant. He said that therefore there had been no “minded to cancel” process.

26. Mr Malik said that although the Appellant was interviewed by the immigration officer, Balajigari, at [159]-[161], demonstrated that any such interview must meet the “minded to” requirements identified at [55]. He said that a non-compliant interview was insufficient for this purpose. Mr Malik referred to the decision in Mushtaq v Entry Clearance Officer (ECO - procedural fairness) IJR [2015] UKUT 224 (IAC). The judicial headnote at (ii) stated that, “Interviews serve the basic twofold purpose of enabling applications to be probed and investigated and, simultaneously, giving the applicant a fair opportunity to respond to potentially adverse matters” and that “the ensuing decision must accord with the principles of procedural fairness”. Mr Malik said that similarly in Anjum v Entry Clearance Officer (entrepreneur - business expansion - fairness generally) [2017] UKUT 406 (IAC), at the second judicial headnote at (ii), the Upper Tribunal said that:

“an immigration interview may be unfair, thereby rendering the resulting decision unlawful, where inflexible structural adherence to prepared questions excludes the spontaneity necessary to repeat or clarify obscure questions and/or to probe or elucidate answers given”.

27. Mr Malik said that this Applicant’s interview was unfair and insufficient to meet the common law requirement of procedural fairness. He said that the purpose of the interview was not explained to the Applicant at the outset. That there was no “clear indication” of the suspicion. Nor was the Applicant given a fair opportunity to address material issues. Mr Malik said that the Applicant was not even notified that the purpose of the interview was to afford him an opportunity to address a suspected breach of immigration conditions and failure to meet the requirements in the Immigration Rules, or to probe matters concerning the exercise of discretion.

28. Mr Malik said that the Applicant was positively misled by the interviewing officer. It was suggested to him, in a leading manner, that he was in breach of his immigration conditions. This was a false assertion and an improper question. The Applicant was not in breach of any immigration conditions. He said that the record of the interview provided by the Secretary of State only begins after the interview had already started. Mr Malik said that the record of the “conversation” prior to the interview was striking. The conversation started abruptly, and the Applicant was not advised of its purpose or of his rights. Mr Malik said it was suggested during the conversation that he was required to inform the Home Office of any change in circumstances, but there was no such requirement. Mr Malik said it was clear from the record of the conversation that the immigration officer had formed the view that the Applicant had breached his immigration conditions and committed an immigration offence. That conclusion was false. In any event, said Mr Malik, if the immigration officer had already made up their mind about the issue during the conversation, the subsequent interview served no real purpose.

29. Mr Malik said that there has been no probing or follow-up questioning in the interview. The nature of the separation and the circumstances relating to it were not clarified. There was no attempt to repeat or clarify obscure questions, or to elucidate answers given. In particular, when the Applicant raised an issue relating to his political activities as a barrier to his return to Bangladesh, the immigration officer abruptly ended the interview. Mr Malik said that was plainly a matter relevant to whether discretion should be exercised to cancel the Applicant’s leave with immediate effect. Yet, no attempt was made to probe it or to ask follow-up questions for clarification.

30. Mr Malik said that this raised two public law errors. First, it breached the common law duty of procedural fairness. Second, no reasonable decision-maker could have proceeded in this manner and cancelled the Applicant’s leave without further probing and enquiries.

31. In respect of Ground 2 relating to the exercise of discretion, Mr Malik submitted that it was tolerably clear that Paragraphs 9.8.8 and 9.23.1 of the Immigration Rules, as the use of the word “may” shows, do not require mandatory cancellation of leave (unlike those provisions in Part 9 of the Immigration Rules that use the word “must”). He said these were discretionary provisions. Even if a person falls within their scope, the Secretary of State was required to exercise discretion with a two-fold exercise. He said that first, the Secretary of State must decide whether a person’s leave should be cancelled at all in the exercise of discretion. Second, if so, the Secretary of State must then decide whether discretion should be exercised to cancel leave with immediate effect, or to cancel it to 60 days to enable the person concerned to make another application for leave to remain or to arrange their departure from the United Kingdom.

32. Mr Malik submitted that it was plain from the contents of the Secretary of State’s decision and the records that the key reason leading the immigration officer to cancel the Applicant’s leave was the conclusion that he was in breach of immigration conditions and had committed an immigration offence. He said that was not the case.

33. Mr Malik said that the imposition of conditions in this context was governed by section 3(1)(c) of the Immigration Act 1971. This provision allowed the Secretary of State to impose all or any of the listed conditions. He said that the Court of Appeal made clear in Anwar v Secretary of State for the Home Department [2017] EWCA Civ 2134; [2018] WLR 2591, at [63]-[69], a condition may only be imposed from the list of specified conditions in section 3(1)(c) of the 1971 Act by notice in writing. The Applicant’s leave was not subject to a condition that he must at all times live with his wife. Mr Malik said that thereby the Applicant had breached no immigration condition and committed no immigration offence. Mr Malik submitted that the premise on which the Secretary of State cancelled the Applicant’s leave with immediate effect was flawed and unreasonable.

34. Mr Malik referred to Ukus (Discretion: When Reviewable) [2012] UKUT 00307 (IAC), in which the Upper Tribunal gave guidance as to the proper approach to discretionary provisions in Part 9 of the Immigration Rules. He said that this entailed acknowledging the existence of discretion, identifying the factors to be taken into account, conducting a balancing exercise, and reaching a reasoned conclusion. In making that decision, the Secretary of State did not acknowledge the discretion or identify the relevant factors. He said that there had been no balancing exercise, nor any reasoned consideration as to whether his leave should be cancelled to 60 days, as opposed to being cancelled with immediate effect.

35. Mr Malik said that in line with Ukus, the policy guidance makes a clear distinction between mandatory (“must”) and discretionary (“may”) cancellations. He said that in the present case, there was a complete failure by the Secretary of State to acknowledge and follow the policy on “Case consideration and use of discretion” (see page 53) and “Use of discretion when considering cancellation” (see page 55). Likewise, the Secretary of State acted inconsistently with the part of the policy relating to “Deciding the date of expiry for cancelled permission” (see page 59). It is plain that the Applicant did not fall within the cases justifying “Cancellation of permission with immediate effect” (see page 60) or cases where “Cancellation with immediate effect on discretionary grounds” is justified (see pages 60–62). The Secretary of State should have cancelled leave to 60 days, as opposed to cancelling it with immediate effect. The complete failure to consider this issue, or to have any regard to the policy guidance or the case law, constitutes plain public law error.

36. Mr Malik said that therefore on the facts of this case no reasonable decision-maker could have cancelled the Applicant’s leave with immediate effect. The consequences of such cancellation were draconian, resulting in deprivation of liberty, detention, and stringent bail conditions.

37. In his skeleton argument dated 19 October 2025 Mr Biggs helpfully set out the law and states in summary that section 3(3)(a) of the Immigration Act 1971 confers power on the defendant to vary limited leave to remain by reducing its duration, including by ending the remaining period of leave by an immediate cancellation of that leave.

38. Mr Biggs said that the power was discretionary, but its exercise will be informed by the Immigration Rules and relevant policy. Accordingly, a decision to cancel leave to enter or remain falls to be reviewed against Wednesbury principles and does not raise an issue of ‘precedent fact’: R (Kanwal) v. SSHD [2021] EWHC 2071 (Admin) at [41]-[44] and R (Giri) v. SSHD [2015] EWCA Civ 784, [2016] 1 WLR 4418 at [30]. In respect of procedural fairness, he said that the relevant principles were summarised in R (Kanwal) v. SSHD [2022] EWHC 110 (Admin) and which I have referred to above.

39. Mr Biggs submitted that the Respondent had not acted procedurally unfairly. The Applicant had been interviewed and was given a fair chance to explain his circumstances. That it was put to him the Applicant in interview that he had breached a visa condition, did not undermine this; it was a point of form and not substance. Mr Biggs said that neither procedural fairness nor the Tameside principles required the Respondent to undertake further enquires before making the Decision. He submitted that the Respondent was entitled to rely upon the fact that the Applicant had stated and accepted that the basis for his leave to enter as a dependent of his partner had fallen away, as he and his partner had separated, as well as other factors.

40. Mr Biggs said that although the Respondent’s Decision incorrectly referred to paragraph 9.8.8. of the Immigration Rules, it also referred to the correct rule, rule 9.23.1, which clearly applied in the light of the Applicant’s statements in interview. The reference to paragraph 9.8.8. in the Decision and during the Applicant’s interview was immaterial he said. He also said that the decision-maker did reasonably consider the exercise of discretion in the light of the information available to them and relevant policy, including the claims made by the Applicant in interview, having done so the decision-maker reasonably concluded that it was appropriate to cancel the Applicant’s leave to remain with immediate effect in the circumstances. He said that conclusion was open to the Respondent. He also said that there was no duty to make further enquires, and the decision-maker did not fail to consider legally mandatory considerations.

41. Mr Biggs said in summary in respect of Ground 1 that the Respondent did not act procedurally unfairly in all the circumstances. He said that the Applicant was interviewed at 8.12 pm on 9 October 2024 during the enforcement visit. He said that the interview had given the Applicant a fair chance to explain his position as to whether there were grounds to cancel his permission, and to explain whether his leave should be cancelled or not in the circumstances.

42. Mr Biggs said that the Applicant told the interviewing officer that he and his wife had separated “before June”, and that he does not “speak to her at all anymore”. He was asked whether he told the Secretary of State of this important change of circumstances, and his response was “My wife said she's going to make an application, but she didn't so no”. The Applicant also explained that his wife had applied “for a divorce too”. The Applicant was further asked to explain whether there was any reason why his permission to stay should not be cancelled. He replied: “Yes I do, because I would like to remain in this country. I used to be a politician in my country. A party called awami league. It was the government of Bangladesh”.

43. Mr Biggs said it was accepted that the interviewer incorrectly expressed the question “are you aware that you're in breach of your visa conditions by being separated from your wife”, but the substance and intended meaning of the question was sound. He said that the Applicant’s answer was reliable and telling when he said, “Yes I do know that. I will get a skilled worker visa”.

44. Mr Biggs said that the reason the question was incorrectly expressed was that the correct legal analysis was that the Applicant was not in breach of his permission conditions as a result of his separation from his wife. Mr Biggs said that it was not, strictly, a “condition” of his permission for the purposes of the statutory scheme and the Immigration Rules that the Applicant remain in a genuine and subsisting relationship with his wife, and that he remained dependent upon her. Mr Biggs said that this was merely a point of form. He said that the substance of the question was valid and interpreted in context its meaning was clear. The interviewer used the words “breach of a visa condition” loosely, to refer to the fact that the basis for the Applicant’s permission to enter as a dependent of his wife had fallen away. Mr Biggs submitted that there was no reason to think that the Applicant did not understand the interviewer’s meaning in this way, and, in any case, there was no reason to think that the Applicant’s answer to this question was unreliable. Mr Biggs said that there could be no proper argument that the Applicant was in some way tricked into accepting that the basis of his leave to remain had fallen away as he was no longer a dependent on his wife. The unexplained claim that the Applicant was “positively mislead” by the interviewing officer at para. 19 of the applicant’s skeleton argument was not supported by the terms of the interview transcript, considered fairly and in context, and is wrong.

45. Mr Biggs said that at most the Applicant could argue that he falsely told the interviewing officer what the Applicant thought he wanted to hear when he stated “Yes I do know that. I will get a skilled worker visa”. But that would have been deceptive, and in any case does not indicate that the other answers the Applicant gave were not truthful. Mr Biggs submitted that the better view was that the Applicant took the question “are you aware that you're in breach of your visa conditions by being separated from your wife” to ask whether he was aware that the basis of his visa in the UK had fallen away because he was no longer his estranged wife’s dependent, which also reflected the likely intention of the questioner.

46. Mr Biggs said that even if the interviewer was mistaken in thinking that the fact that the basis of the Applicant’s leave to remain as a dependent had fallen away meant that he had breached a condition of his leave, that came nowhere near to showing that there was any procedural unfairness. Mr Biggs said that the new argument made in the Applicant’s skeleton argument that the interview was conducted in an unfairly inflexible way was a bad point. Having regard to the PRONTO record, there was no reason to think that the Applicant was not given a fair opportunity to set out his position in respect the Secretary of State’s concerns, and to explain why his leave should not be cancelled with immediate effect.

47. Mr Biggs submitted that overall, the Applicant had a fair chance to set out his position on all relevant matters.

48. Mr Biggs referred to the caselaw cited by the Applicant at paragraph 17 of his skeleton argument and said that caselaw did not assist the Applicant. He said procedural unfairness was not about form, but the substantive impact of an allegedly unfair procedure and he referred to R (Taj) v SSHD [2021] EWCA Civ 19, [2021] 1 WLR 1850 at [53].

49. Mr Biggs submitted that the argument that the Respondent was obliged to follow a ‘minded to’ procedure rather than an interview was wholly unsupported by the authorities. He referred to Kanwal and Balajigari at [55]-[56] and [159]-[161]). He said imposing such a requirement would tend to undermine the statutory scheme for immigration control, by making it difficult or impossible for officers to immediately cancel a person’s leave and detain them with a view to removal. He said that the common law should be slow to require such a procedure and referred to EK (Ivory Coast) v SSHD [2014] EWCA Civ 1517; [2015] INLR 287 at [28]-[37].

50. Mr Biggs said neither procedural fairness nor the Tameside principles required the respondent to undertake further enquires, or to defer the Decision. He said that the Respondent had adequate information available to make a reasonable decision as to whether to cancel the Applicant’s leave with immediate effect. He said that there was no Tameside duty of further enquiry, because it was open to the decision-maker to make the Decision on the basis of the available information. Mr Biggs referred to Balajigari at [70] and R (Mott) v. Environment Agency [2016] EWCA Civ 564; [2016] 1 WLR 4338 at [68]-[82]).

51. Mr Biggs submitted that it was also plainly procedurally fair to do so and was consistent with the Guidance, which explained at page 54:

“You should make a cancellation decision on the basis of 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 but in some circumstances, it may be appropriate for you to ask an individual to provide additional information before making a cancellation decision.”

52. Mr Biggs said that in the circumstances the decision-maker formed the view that giving the Applicant a period of 60 days in the UK was unwarranted.

53. In respect of Ground 2 relating to discretion, Mr Biggs submitted that the decision-maker plainly did exercise discretion in the light of all and only material matters and reasonably concluded that it was appropriate to cancel the Applicant’s leave to remain with immediate effect in the circumstances.

54. Mr Biggs referred to the 9 October 2024 decision:

“Your permission is being cancelled because: You were granted permission as a dependant of Nadiya Sultana Pinki under Skilled Worker Partner – LTE of the Immigration Rules. In a conversation with PC 41105 from Surrey police and in the presence of 2 immigration officers you stated that your wife lives in London, you have been separated since before June 2024 and that you have not spoken to her since June 2024. You stated that you do not talk to your wife at all anymore and that she’s made an application for divorce…”

55. Mr Biggs said that the decision-maker also reasonably considered the relevant facts known to them at that time when exercising discretion. He submitted that the Respondent’s decision making was consistent with the Guidance, which is the relevant policy. Mr Biggs said and properly understood, Ukus [2012] UKUT 00307 (IAC) did not assist the Applicant because the Tribunal in Ukus at [12] did not set out fixed legal requirements that have to be followed in all cases for a decision involving use of a discretionary power to be lawful. He said that the decision-making in this case involved the lawful application of a discretion and indeed is analogous to the decision-making upheld as lawful in Ukus at [5]-[7] and [12].

56. Mr Biggs said that the decision maker also properly considered and reasonably applied the relevant Guidance when they applied their discretion, bearing in mind that the Respondent is entitled under the statutory scheme to apply policy subject only to Wednesbury review. He referred to R (Gurung) v. SSHD (ACRS meaning - policy interpretation principles) [2025] UKUT 90 (IAC) at [57] citing Tesco Stores v. Dundee City Council [2012] UKSC 13 at [19]-[21]).

57. Mr Biggs concluded that even if the decision-maker did err by referring to paragraph 9.8.8 of the immigration rules or in some other way, it was highly likely that the relevant outcome for the Applicant would not have been substantially different if any such error had not occurred. He said, if necessary, relief should therefore be refused he said, when applying section 31(2A) of the Senior Courts Act 1981.

The Interview

58. Page 252 of the trial bundle contains the interview which the Respondent’s immigration officer conducted with the Applicant. It states as follows (I have added the bold so it is easier to see the question being asked by the immigration officer):

Q&A
When did you separate from your wife.
Before June
Did you tell the home office you separated from your wife?
My wife said she's going to make an application, but she didn't so no.
Are you aware that you're in breach of your visa conditions by being separated from your wife
Yes I do know that.
I will get a skilled worker visa.
How often do you talk to your wife
I don't speak to her at all anymore
Are you going to be getting divorced
Yes she's made an application for divorce too.
Is there any reason why I shouldn't cancel your permission to stay in the UK?
Yes I do, because I would like to remain in this country. I used to be a politician in my country. A party called awami league. It was the government of Bangladesh”

59. The Respondent’s document referring to that interview also states,

“As such, and by listening to this conversation between them both, it was deemed he had breached the conditions of his Visa and committed an Immigration offence”.

Consideration and Analysis

60. Both parties have made skilful and helpful arguments before me. I am grateful to Mr Malik and to Mr Biggs for them.

61. Mr Biggs is correct that this case is different to the Balajigari line of cases because the Applicant in the instant matter before me was interviewed by the immigration officer. That has made me pause.

62. Having set out the legal framework and the parties’ respective submissions in some detail, I consider the core of Mr Malik KC submissions in respect of the facts of this case. The immigration officer’s question to the Applicant “Are you aware that you're in breach of your visa conditions by being separated from your wife” was wrong. It clearly then misled the Applicant. Mr Malik said that in fact the Applicant was not in breach of his visa conditions. Not least because the Applicant’s leave was not subject to a condition that he must at all times live with his wife. He breached no immigration condition and committed no immigration offence.

63. Mr Biggs sought to persuade me that whilst it was accepted that the interviewer incorrectly expressed the question “are you aware that you're in breach of your visa conditions by being separated from your wife”, but the substance and intended meaning of the question was sound. Mr Biggs also said I should read the position as being that the Applicant had been asked by the immigration officer whether he was aware that the basis of his visa in the UK had fallen away because he was no longer his estranged wife’s dependent. Mr Biggs said that this also reflected the likely intention of the questioner.

64. As the caselaw makes clear, the issue of fairness will indeed be fact specific.

65. I conclude that Mr Malik is correct and which Mr Biggs appears to agree, at least to a sufficient level, that in fact there was no breach of the conditions of the leave.

66. I note that there was a 10 minute interview, in the evening, with no proper or clear announcement or warning to the Applicant of what was to happen. Whilst I am well aware that immigration officers will have to conduct all manner of investigations and enquiries, it still remained vital that basic principles of fairness applied. I also accept that there will be some persons who deliberately evade the immigration authorities because they clearly have no lawful basis to be in the UK. Immigration officer will be trained to deal with such matters.

67. In my judgment though, just as other investigating authorities, such as the Police, have to comply with certain procedures of fairness, whether set out in statutory form or when applying common law fairness principles, similarly fairness must apply when an immigration officer is interviewing a person of interest. Indeed, in some cases, including in this case, there might be an added need for care because an interpreter becomes necessary because of the different languages being used.

68. Therefore, whilst I note the submissions by Mr Biggs that the role of the immigration officer must not be made to be such that it becomes impossible or too difficult for immigration officers to perform their function, I am not seeking to impose arduous or difficult working practices for immigration officers. All I say is that immigration officers must have the correct foundation for asking questions of those they interview. Such a requirement is neither arduous nor difficult. It is basic fairness that the immigration officer refers to the correct position when asking questions of those detained or being questioned.

69. In my judgment, the stark facts of this case are that the Applicant was not in breach of the conditions of his visa, but the immigration officer told him he was. The Applicant then made certain ‘admissions’ that he was in breach of his visa conditions, even though he was not. The immigration officer then cancelled the Applicant’s leave to remain. He did so after the interview that I have set out above. On any fair reading it is plain to see that the interview was short (lasting 10 minutes) and with no real explanation about what it was about or what the consequences would be.

70. In my judgment the wholly incorrect premise of the immigration officer’s ‘statement’ that the Applicant was in breach of the conditions of his visa cannot be remedied by Mr Biggs’ submissions that I can somehow guess the ‘intention’ of the immigration officer who was asking the Applicant questions. Nor in my judgment can I add gloss to the questions to conclude that they were asking a different question which then fitted in with the Respondent’s Guidance and within the caselaw. In my judgment it is plain that the questions and statements made by the immigration officer were based on a false premise. The immigration officer was wrong about the Applicant being in breach of his visa conditions. The reason the immigration officer was wrong was because the Applicant was not in breach of his visa conditions.

71. In my judgment Mr Malik is correct that the interview conducted by the Respondent with the Applicant did not comply with basic fairness. It can be seen that that the first question was “When did you separate from your wife” with no indication first from the immigration officer why the Applicant was being interviewed. Nor was it obvious why the Applicant was being questioned. That it was about his immigration status was far too vague.

72. The immigration officer’s question, “Are you aware that you're in breach of your visa conditions by being separated from your wife” was legally, objectively and factually wrong. As agreed by Mr Biggs, the Applicant was not in fact in breach of the conditions of his visa. Nor was there any condition that the Applicant must live at certain address. Whilst the Applicant and his wife had separated, they were still married and the conditions of the visa were not breached.

73. In my judgment, it cannot be underestimated that an immigration officer will hold some power and that those being questioned will feel a sense of trust and respect in what is being said by an immigration officer. In my judgment the immigration officer asked the Applicant a leading question and one which was legally and factually wrong and to which the Applicant then agreed.

74. Whilst I can understand Mr Biggs’ submissions that immigration officers must undertake their functions, in my judgment, it is not permissible for them to do so in a manner which misleads the person being interviewed as was the case here. Nor am I able to read into the interview what the immigration officer “might really have meant” or what the immigration officer’s “intention” was when asking the questions. In my judgment I must take the plain reading of the interview and not attempt to add any gloss to what the immigration officer might have meant or what he might have intended. The plain fact is that the immigration misled the Applicant. I do not know if that was because the immigration officer himself did not know the correct legal position that there was no breach of the conditions of the visa.

75. In my judgment had the immigration officer put the correct legal position to the Applicant, namely that the Applicant was not in breach of any visa conditions, then the Applicant would obviously have answered differently when he was asked by the immigration officer, “Is there any reason why I shouldn't cancel your permission to stay in the UK?”. It is obvious the reasonable response would be that the immigration officer should not cancel leave because there had been no breaches of the conditions of the visa.

76. I therefore agree with Mr Malik that it was the false question from the immigration officer which led the Applicant to say “I know that” in response to whether or not the Applicant knew he was in breach of his visa conditions.

77. In my judgment, even without there being ‘probing or follow-up questioning’ in the short interview, the unfairness is manifest.

78. In coming to this view, I remind myself of the caselaw which I have referred to above and in particular paragraph 55 of Balajigari which states,

“… we have come to the conclusion that where the Secretary of State is minded to refuse ILR on the basis of paragraph 322 (5) on the basis of the applicant's dishonesty, or other reprehensible conduct, he is required as a matter of procedural fairness to indicate clearly to the applicant that he has that suspicion; to give the applicant an opportunity to respond, both as regards the conduct itself and as regards any other reasons relied on as regards "undesirability" and the exercise of the second-stage assessment; and then to take that response into account before drawing the conclusion that there has been such conduct.”

79. In my judgement here the decision was relying on alleged ‘reprehensible conduct’ by the Applicant. It was therefore necessary for the immigration officer to state that he had suspicion. It was then necessary to give the Applicant an opportunity to respond and then to exercise the second-stage assessment including taking the response into account before drawing any conclusions.

80. Whilst there was an interview, the interview was flawed for the reasons that I have referred to, including because the immigration officer misled the Applicant into believing that he was in breach of the conditions of his visa when that was plainly not the case. The approach of the immigration officer was procedurally improper and unfair.

81. In my judgment, procedural unfairness and procedural impropriety have plainly been shown.

82. I am fortified in my view because in Kanwal it was made clear at paragraph 61 that the Claimant did know what the allegations and breaches were. Freedman J noted that, “The Claimant well knew that the Defendant was enquiring about illegal working at the Hotel, and that there was an issue as to whether she had been working there”. Freedman J also concluded at paragraph 63 that in that case that appropriate questions had been asked by the immigration officers of the Claimant. In the instant case before me, however, as I have set out above, here the Applicant was asked false questions and indeed was misled by the false foundation of the immigration officer’s making. Namely that the Applicant was in breach of his visa conditions when he was not.

83. Whilst it is therefore not necessary to consider Ground 2, I do so in any event in view of the arguments made to me. Ground 2 relates to the Respondent’s exercise of discretion. Here it is essential to have in mind that Paragraphs 9.8.8 and 9.23.1 state that the decision maker ‘may’ cancel leave if the conditions of leave are not met in certain circumstances.

84. In my judgment, the Respondent’s failure to apply discretion lawfully is manifest. The foundation for the Respondent’s decision was the false assessment that the Applicant was in breach of the conditions of his visa. There was no such breach of the conditions.

85. In my judgment it was necessary for the decision maker to acknowledge that that there was a discretion and then to conduct a balancing exercise after identifying the factors to be taken into account. Here the decision maker had acknowledged that there was a discretion but that “the circumstances in your case are such that discretion should not be exercised in your favour”. This was mere standard wording which failed to acknowledge the error of the immigration officer stating that there was a breach of the conditions of the visa, when there were not. The Respondent therefore plainly had not reasonably considered and applied her discretion.

86. Therefore, the Respondent’s decision is plainly unlawful. The decision in Ukus whilst not on a similar factual matrix to the instant application before me, makes it clear that the acknowledgement of the discretion and then a balancing exercise are both necessary. In particular, the balancing exercise with the correct facts was not undertaken by the Respondent and thereby the Respondent had not reasonably considered and applied her discretion.

87. Mr Malik stated that the Respondent has not acknowledged or followed her policy “Case consideration and use of discretion” and “Use of discretion when consideration cancellation” and others. In my judgment the Respondent should have cancelled leave to 60 days, as opposed to cancelling it immediately, in accordance with the policy, or at least considered the terms of the policy in her decision. The failures to have regard to the policy guidance or caselaw shows the public law errors, but one can see the effect was that the Applicant was arrested following the short interview which had been conducted on a completely false basis. It has to be remembered that the reasoning for the Respondent’s decision was on a wholly false premise.

88. In my judgment, no reasonable decision-maker could have cancelled leave with immediate effect.

89. Therefore, whilst Mr Biggs has made important and skilful submissions, I am unable to agree with him.

Conclusion

90. I conclude that Ground 1 is made out and that the Respondent’s decision is vitiated by procedural unfairness and impropriety. I also conclude that Ground 2 is made out because the Respondent erred in respect of her application of discretion under the Immigration Rules in respect of the 60 day period.

91. I have also considered Mr Biggs’s submissions that I should not grant relief even if I was to find that there was the conduct complained. He relies on section 31(2A) of the Senior Courts Act 1981 (which by virtue of section 15(5A) of the Tribunals, Courts and Enforcement Act 2007 applies to the Upper Tribunal) which states:

“The High Court:

(a) must refuse to grant relief on an application for judicial review, and

(b) if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.”

92. I am not so satisfied. In my judgment it is highly likely the outcome for this Applicant would have been substantially different if the Respondent had undertaken a fair process.

93. Accordingly, I grant the Judicial Review on both grounds of challenge.

94. I invite the parties to agree a form of order and consequential matters, including costs and to send them to me for my approval.

5 January 2026
Upper Tribunal Judge Abid Mahmood

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Postscript

Following judgment having been provided to the parties in draft, I considered the parties further written submissions sent to me thereafter and I make the following order:

Costs:

The Respondent shall pay the Applicant’s costs to the subject of detailed assessment if not agreed on the standard basis.

If the parties wish to seek a summary assessment of costs, they shall file and serve the relevant costs schedule within 14 days of the date this order is sent.

Permission to Appeal:

Permission to appeal has not been sought, but I am required to consider it in any event. I refuse permission to appeal because there is no arguable error of law and any appeal would have no realistic prospect of success, and there is no other compelling reason for an appeal to be heard.

I am grateful for the Respondent who has today referred me to the decision of the Court of Appeal in R (Singaram) v. SSHD [2025] EWCA Civ 1375. The Respondent had made no submissions in respect of it. In any event, having now considered that decision, I see that it was on very different facts to the case before me and there is no reason for me to vary my decision.