Tribunal decisions

The decision

Case No: JR-2025-LON-002664
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR

JUDGMENT DATE: 9 September 2026

Before:

UPPER TRIBUNAL JUDGE LODATO

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Between:

THE KING
on the application of
BIJAY GHIMIRE
Applicant
- and -

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

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Ms Norman
(instructed by DMH Stallard LLP), for the applicant

Mr Howarth
(instructed by the Government Legal Department) for the respondent

Hearing date: 13 August 2026

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J U D G M E N T

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Judge Lodato:

Introduction

1. These proceedings concern the decision of the respondent to immediately cancel the applicant’s leave to remain in the UK under the skilled worker scheme because he was encountered when delivering pizzas. This form of work was found to be a breach of the applicant’s conditions of leave to remain and work in the UK.

The Factual Background

2. Following the completion of his studies pursuant to entry clearance granted as a student, the applicant was granted leave to remain as a skilled worker on 12 January 2023, valid until 4 January 2028. The grant was subject to the following relevant conditions:

You must work for the employer who sponsored you.

You can:

• only work in the job you are sponsored for as your main job
• work overtime in the job you are sponsored for - subject to the working time regulations
[…]

Additional part-time work

While you are working in the job you are sponsored for, you can also do part-time work.

Part-time work must:

• be in an eligible Skilled Worker occupation
• only be done for up to 20 hours per week in total, even if you have more than one part-time job
• only be done outside the contracted hours of the job you are sponsored for - part-time work cannot take priority over your sponsored job

3. At approximately 8:35 pm on 9 May 2025, Police Constable Trebble observed the applicant placing what appeared to be a bag containing pizzas into the boot of his car outside Texas Pizza on Worthing High Street. Suspecting him of working in breach of immigration laws, the officer followed the applicant on his brief journey from Texas Pizza until he stopped in a car park. PC Trebble found him to be in possession of hot pizzas in the boot of his car with a delivery slip. He was also in possession of £64 in cash and 10 receipts relating to previous deliveries that night. In the officer’s first witness statement of 10 May 2025, he said that upon putting his suspicion to the applicant that he was working delivering pizzas, his response was: “I was just helping my friend Navid who owns the shop”. After contacting Home Office officials, the officer arrested the applicant and took him into custody. The applicant did not respond to caution.

4. In response to requests from the respondent for clarification of his evidence, PC Trebble provided further witness statements dated 2 and 3 May 2026. In the first of these additional statements, the officer stated that, when he first approached the applicant, he said that he had stopped at a shop to buy tomatoes for his wife. However, the delivery slip found with the hot pizzas in the boot of the car recorded that delivery was to be completed by 9:10 pm to an address 2 miles away. The applicant was said to have denied working for the pizza shop, but to be employed as a computer engineer. In the second of his additional witness statements, the officer clarified that he did not complete a pocket notebook entry and that the body worn video footage which had been recorded was automatically deleted after 31 days had elapsed.

5. Immigration Officer Johnson completed two witness statements dated 2 August 2025 and 25 April 2026. He stated that he was contacted by PC Trebble on the evening of the encounter with the applicant. Home Office systems were checked and it was found that the applicant had been granted a Tier 2 (Leave to Remain) work visa to work for Tesla Engineering Ltd as an engineer and that he was under conditions which permitted him to work an additional 20 hours per week in a skilled role which did not include pizza delivery driver. In his first witness statement, the Immigration Officer set out a record of the interview he conducted with the applicant while he remained in custody:

At 13:16, I interviewed Mr Ghimire in the first available custody interview room. I confirmed the following with him

Interpreter requirement: “Are you happy for this interview to be carried out in English. or would you like an interpreter?”
Response: “Yes. sir.”
Fitness for interview: “Are you fit and well to be interviewed?’
Response: “Yes. I am."
I read aloud Officer Trebble’s witness statement and presented the photographic evidence Mr Ghimire acknowledged that the account and images were accurate representations of the events

I then informed Mr Ghimire that he had been stopped by Sussex Police on 9 May 2025 for delivering pizzas from Texas Pizza Shop and JUST EAT, which constitutes a breach of his visa conditions. I explained that his visa conditions were being cancelled with immediate effect and that he was now required to leave the UK.

Mr Ghimire responded:
“Yes. I understand, but I am allowed to work 20 hours extra under the UK government website.”

6. In his second witness statement, prepared after being asked by the respondent to clarify his evidence, IO Johnson stated the following in relation to the interview he held with the applicant:

Interview with the Claimant

22. I was introduced to GHIMIRE by the Custody Sergeant, and we proceeded to an interview room.

23. The interview began at approximately 13:12 and was conducted in English, which GHIMIRE confirmed he understood.

24. I confirmed his personal details and explained the purpose of the interview.

25. I explicitly put it to GHIMIRE that he was suspected of working as a delivery driver, specifically delivering pizzas as evidenced by the police observations, and that such work constituted a breach of the conditions attached to his leave to remain.

26. I read aloud PC TREBBLE’s witness statement in full and showed GHIMIRE the photographic evidence obtained by the police.

27. I asked GHIMIRE whether the contents of the statement and the evidence were true and accurate to the best of his knowledge, to which he replied “yes”.

28. This exchange formed part of my process of putting the allegation clearly to him and providing him with the opportunity to respond.

Claimant’s Explanation

29. GHIMIRE stated, in response, that he believed he was permitted to undertake up to 20 hours of additional work, having checked the UK Government website.

30. I explained to him that while supplementary work may be permitted, it must still meet the conditions of being on the Shortage Occupation List or within the same occupation code as his sponsored role.

31. GHIMIRE did not dispute that delivery driving does not fall within those permitted categories.

32. When I stated that the work he had been undertaking did not meet the requirements of his visa conditions, he did not provide any further explanation or evidence to justify that the work fell within the permitted scope.

Clarification of “No Defence”

33. In my earlier statement, I stated that “he had no defence to the fact that the work he was conducting was not on the shortage occupation list.”

34. By this, I mean that when the specific nature of the work and the applicable immigration conditions were put to him, GHIMIRE did not contest that:
- he had been undertaking delivery driving work, and
- such work was not on the Shortage Occupation List nor within his permitted occupation code.

35. While he provided a general explanation that he believed he could work up to 20 hours, he did not provide any explanation addressing the specific restriction that such work must fall within defined categories.

7. In the context of explaining how he came to decide to cancel the applicant’s leave, and not to exercise discretion in his favour, IO Johnson stated at [44]: “During the interview, GHIMIRE stated that he had a wife in the United Kingdom, who held leave as his dependant”.

8. The applicant provided three witness statements for the purposes of the judicial review proceedings. He stated that he told PC Trebble at the outset of their encounter that he held a skilled worker visa with the right to work 20 hours per week under his conditions [witness statement of 8 August 2025]. He further denied ever stating that he worked as a delivery driver and that he had repeatedly informed the police officer that “Texas Pizza was owned by a friend and that I occasionally helped out when they were very busy”; he further denied being asked by either PC Trebble or IO Johnson about his specific role with Texas Pizza [witness statement of 22 August 2025]. In his third witness statement of 1 June 2026, the applicant said this about the interview he had with IO Johnson:

As I set out in my first witness statement, my meeting with Officer Johnson on that date was very brief. During the meeting, Officer Johnson asked me whether I was content to be interviewed in the English language and whether I was fit to be interviewed. He also asked me for details relating to my wife, who is on my dependent visa. He then read out the NOL letter and asked me whether I understood it. I objected and informed him that I was permitted to work an additional 20 hours per week, as evidenced by my right to work document. Officer Johnson then asked me to send this information to him via email. That was the full extent of the interview. The conversation was short and was nothing like what Officer Johnson seeks to portray in his supplementary witness statement.

9. The applicant sent an email to the Home Office at 3:31 pm on 10 May 2025 in which he set out his understanding of his entitlement to work before stating:

[…] I am currently employed in this restaurant as a service manager. This falls under Occupation Code 1222, which is an eligible Skilled Worker Occupation and also meets all the required conditions. This means I am responsible for timely delivery and customer satisfaction. This means in case of lack of staff on any particular day I might have to assume their responsibility as my own and keep the service of the restaurant efficient. There was a lack of delivery drivers yesterday, and orders were getting very late hence as a service manager I was responsible for timely delivery of these orders, hence I was out doing those few deliveries. […]

10. In a letter, also dated 10 May 2025, Naveed Aziz said this:

[…]

This letter is to confirm that Mr. Bijay Ghimire (Passport number 11949415) is currently employed at Texas Pizza in the capacity of Service Manager (Occupation Code 1222).

The terms of employment are based on a zero-hour contract, and the number of hours worked per week does not exceed 20 hours. Please note that the nature of this contract means that hours may vary from week to week, depending on the needs of the business.

Employment commenced on 01/05/2025, and Bijay Ghimire has been fulfilling all duties and responsibilities associated with this role since that date.

[…]

11. The applicant further relied on a Written Statement of Employment signed by him and Mr Aziz and dated 1 May 2025. The job description was set out in the following terms:

Role: Service Manager
To represent the Employer's business positively and professionally.
To provide excellent customer service and maintain cleanliness and presentation of the front-of-house area.

The position was described as a “zero hours contract” which came with 28 days paid holiday.

The Cancellation Decisions

12. IO Johnson cancelled the applicant’s leave to remain with immediate effect on 10 May 2025. The decision was founded upon the conclusion that the applicant had breached the terms of his right to work by working in a supplementary employment other than that with his named sponsor. This decision did not expressly exercise discretion. Following the institution of judicial review proceedings, a supplemental decision was taken by IO Johnson on 8 August 2025. In this decision, it was noted that the applicant had not indicated that he worked in a managerial capacity for Texas Pizza, nor did the circumstantial evidence support such a proposition. The following point was then taken: “You have not provided an independently sourced contract of employment stating your position as managerial that predates your encounter with Police”. IO Johnson next considered whether to exercise discretion in the applicant’s favour and gave reasons for declining to do so.

13. A final supplemental decision was taken by IO Johnson on 9 December 2025. The parties agreed that this final decision functioned as the primary focus of the judicial review proceedings albeit the applicant argued that this decision amounted to a revisionist and unlawful reformulation of previous reasons which were demonstrably flawed. As this was the final articulation of the respondent’s reasons for cancelling the applicant’s leave with immediate effect, I set it out in full notwithstanding that much of it replicates the content of previous decisions:

Reasons for decision

You are specifically considered a person who has breached their visa conditions of leave to remain in the United Kingdom.

You have come to notice to South-East Immigration Compliance and Enforcement having been arrested by Sussex Police Constable CT116 on the 09/05/2025 at approximately 20:35 hrs.

Statement of PC CT116 notes they were monitoring the area of your encounter following allegations of Immigration offenders working as delivery drivers. You were observed by the police officer loading pizzas boxes into the boot of your car from the Texas Pizza 24A North Street, Worthing. The police officer stopped you moments later in a supermarket carpark after you had left Texas Pizza shop.

When questioned by the police officer you claimed to have attended the supermarket to buy tomatoes for your wife, but no tomatoes were found in your car. The officer found hot pizzas with an address to deliver too. When you were searched by the officers they found several delivery receipts in your pocket from Texas pizza, Uber Eats, Just Eat and Deliveroo. When given the opportunity to comment upon the evidence gathered on body worn video, you denied working as a pizza delivery driver on two occasions.

Checks against Home Office systems reveal an entry clearance for Tesla Engineering Ltd valid until 04/01/2028 with work restricted to the named sponsor only.

Supplementary employment of 20 hours is permitted provided this is in line with the conditions of the applicants leave. Regardless of the 20 hours supplementary limit, Pizza delivery driver is not listed as an occupation qualifying for supplementary employment. Similarly delivering pizza’s is not in the same capacity or level as your sponsored employment, a computer engineer.

You were found in possession of pizzas in a delivery capacity along with multiple receipts for deliveries from the previous 3 hours. It was therefore considered proportionate at the time to formulate the opinion you were in breach of your working conditions. You were given two opportunities to comment upon the circumstances of your encounter and only admitted the suspected offence when presented with overwhelming evidence to the contrary in the form of receipts and food items in the process of being delivered by you in your car.

At no point did you reveal your job role at Texas Pizza 24A North Street, Worthing as managerial, present in demeanour as the manager of the restaurant or was referred to as the manager when Police entered the premises and spoke to other employees about you. Moreover, the kitchen staff were annoyed you hadn’t delivered their orders further demonstrating inconsistency with any claim to hold a managerial or senior position.

If you believed you were compliant with the conditions of your visa there would be no cause to deny the allegation and it is reasonable to assume you would have disclosed your position at the restaurant if this demonstrated compliance with your working conditions.

You stated the owner of the restaurant is your friend. This individual was confirmed as the owner from food safety certificates in the restaurant. The owner was not present to question regarding your job role as the officer was told by staff he had just walked out.

You have not provided an independently sourced contract of employment stating your position as managerial that predates your encounter with Police.

It is not reasonable for the Secretary of State to explore infinite elements of discretion where the evidence and material gathered overwhelmingly demonstrates a clear breach of the applicant’s working conditions.

Thapa, R (On the Application Of) v Secretary of State for the Home Department [2014] EWHC 659 (Admin) (11 March 2014) sets out there is no duty specifically to make mention of the exercise of discretion when making a decision to enforce under s10 IAA 1999; that what fairness demands by way of reasons is context-specific; and that the duty to give reasons at the point of making a s10 decision is limited, since an out-of-country appeal is the primary route envisaged for challenge of a removal decision.

I have considered whether to exercise discretion regarding the cancellation of your entry clearance/permission. It is not considered that the circumstances in your case are such that discretion should be exercised in your favour. You were untruthful in mitigating the circumstances of the encounter, and it is considered that you did so in the knowledge that your employment as a delivery driver for Texas Pizza constituted a breach. I find no compassionate or compelling reason to alter the belief your employment at the restaurant is anything other than as a food delivery driver.

You are therefore considered to be a Worker in Breach of your conditions having committed an offence under Section 24(1)(b)(ii) of 1971 Immigration Act (aa) – Failing to observe a condition of leave.

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.

The decision has been made under the provisions of Immigration Rules Part 9. You are now required to leave the UK immediately.

The Grounds of Challenge

14. The judicial review proceedings have involved shifts of positions brought about by the respondent’s subsequent decision-making summarised above. In response to those new decisions, the applicant was granted permission to adjust his grounds of challenge so that they engaged with the respondent’s decisions. By the time of the substantive hearing, the applicant’s grounds were as follows:

Ground 1: Failure to follow appropriate guidance
This ground involved various sub strands. It was suggested that the respondent had failed to observe her duty and policy guidance to take reasonable steps to acquaint herself with relevant material. It was further suggested that an allegation of deception was intrinsic to the cancellation decision such that the principles settled in Balajigari v SSHD [2019] EWCA Civ 673; [2019] 1 WLR 4647, fell to be applied. For reasons which will become clear, one particular sub strand of this ground calls for particular emphasis. This is reflected at paragraph [26] of the applicant’s skeleton argument:

26. A has produced evidence in support of his contentions, and it is not apparent from the third decision that these have been taken into account at all. These include
1. contract of employment dated 1 May 2025 [HB/96-99]. The third decision still maintains that there is no contract of employment stating his position as managerial that predates his encounter with police. This is factually wrong.
2. letter from the owner of Texas Pizza confirming A’s role as Service Manager [HB/95]
3. Witness statement of A dated 8 August 2025 and 22 August 2025 [HB/336-340]

Ground 2: Failure to consider discretion as to immediate cancellation

Ground 3: Inadequate reasons / “retro-reasons” in that it was argued that the respondent had engaged in a process of adding layers of impermissible reasoning to bolster the manifestly unlawful and inadequately reasoned original decisions

Ground 4: Unlawfulness in that the evidence before the decision-maker demanded a conclusion in the applicant’s favour as to the capacity in which he was working.

15. In her skeleton argument, the respondent complained that an additional challenge, which did not have permission to be argued, had been inserted by the applicant in his reply to the detailed grounds. This was referred to as the “unpleaded April 2024 point”. At the outset of the hearing, I clarified with Ms Norman whether this point was pursued because there was no mention of it in her skeleton argument. She clarified that the point would not be pursued before me. I therefore need say no more about it.

The Substantive Hearing and Issues to be Decided

16. At the outset of the hearing, I canvassed with the parties the potentially decisive issues in the claim. It was agreed that the point addressed at paragraph [26] of the applicant’s skeleton argument was a complete answer to the claim if it was decided in the applicant’s favour. However, this was subject to the respondent’s argument as to whether the overall outcome was highly likely to have been the same even if the suggested error had not occurred. The parties agreed with my suggestion that I hear arguments on these discrete points first before hearing submissions going to the other sub strands of ground 1 and grounds 2-4. I address the parties’ submissions going to these matters in the context of the discussion section below.

The Legal Framework

17. Section 3 of the Immigration Act 1971 provides the statutory power for the Secretary of State to grant leave to enter or remain in the UK and that such leave may be subject to conditions restricting the ability to work. The Immigration Rules regulate how these powers are exercised. Paragraph 9.8.8 of the Immigration Rules provides:

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.

18. In South Bucks DC v Porter (No 2) [2004] UKHL 33; [2004] 1 W.L.R. 1953, the House of Lords settled the principles which apply to the assessment of the lawfulness of reasons in support of a decision. Their Lordships held, at [36]:

The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal important controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be brieﬂy stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.

[Underlining added]

19. The Supreme Court returned to these principles in Zoumbas v SSHD [2013] UKSC 74; [2013] 1 W.L.R. 3690 in the context of a challenge to the decision of the Secretary of State for the Home Department and the assessment of the best interests of relevant children. Lord Hodge, JSC, made the following observation at [23] as to the inferences which fall to be drawn from information which was plainly before the decision-maker:

In our view, the Secretary of State does not have to record and deal with every piece of evidence in her decision letter. The decision-maker was clearly aware that the children were born in the United Kingdom as it is recorded on the fourth page of the decision letter. The letter also recorded that the children were aged seven years, four years, and five months respectively and referred to the evidence that the eldest child was at primary school. The decision-maker would also have been aware from the narrative of the family’s immigration history that two of the children had not been to the Republic of Congo.

[Underlining added]

20. Section 31(2A) of the Senior Courts Act 1981 provides:

The High Court—
(a) must refuse to grant relief on an application for judicial review, and
(b) may not make an award under subsection (4) on such an application,
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.

21. Mr Howarth relied on the recent judgment of the Court of Appeal in R (oao Singaram) v SSHD [2025] EWCA Civ 1375 which was said to have involved a similar decision-making context in that the challenge in that appeal was against the cancellation of leave due to a suggested breach of conditions attached to a skilled worker visa. The Court discussed, between [49] and [53], the interrelationship between a Tameside challenge and s.31(2A) of the 1981 Act in this context:

The underlying purpose of the principle of public law that has been said to have been violated needs to be borne in mind and consideration should be given to whether that purpose has in fact been achieved. Here the underlying purpose was to enable the claimant to have the opportunity to make representations as to why he should not have his leave cancelled and, in substance, that was achieved on the facts of this case. In those circumstances, the courts have in similar circumstances taken the view that there has been no breach, or no material breach, of the principles of procedural fairness or certainly none that renders the decision unlawful. By way of example, it has long [been] said that there is “no such thing as a technical breach of natural justice” and a court should not find a breach of natural justice (now more commonly called procedural fairness) in the absence of substantial prejudice to the individual as a result of the procedural failing (see George v Secretary of State for the Environment (1979) 38 P & CR 608, per Lord Denning MR at 517). Alternatively, the courts may, depending on the circumstances, find that the decision was vitiated by a breach of the principles of procedural fairness but have refused to grant a remedy to quash the decision either as a matter of the discretion of the court or the operation of section 31(2A) of the Senior Courts Act 1981.

The matter was considered recently by this Court in R (Save our Stonehenge World Heritage Site Ltd) v Secretary of State for Transport [2024] EWCA Civ 1227; [2025] PTSR 726. There it was said that a judge had erred by considering whether there had been any material prejudice suffered as a result of alleged procedural unfairness. It was said that the position was that if there had been a breach of the principles of procedural fairness, the decision was unlawful and the only question was whether a remedy had to be refused because of section 31(2A) of the Senior Courts Act 1981. That subsection placed a burden on the decision-maker to show that it was highly likely that the outcome for the individual would not have been substantially different if the conduct complained of had not occurred. The Court rejected that argument. At paragraph 75, it said this:

“75. We consider that submission mistaken. The common law principles of procedural fairness are intended to ensure an individual is treated fairly. What procedures are required to ensure fairness will, as we have said, depend on a number of factors including the nature of the decision, the decision-making process, and the facts. And there will be no breach of the principles of procedural fairness even if a particular step has not been taken where that has not resulted in any prejudice to the individual (see George v Secretary of State for the Environment and another (1979) P. & C.R. 609). It is clear that the judge was doing no more at [115] and the following paragraphs of his judgment than summarising and applying the principles of procedural fairness, and that he did so accurately in the light of the case law. ….”.

That is the position in the present case. Any failure to comply with the principles of procedural fairness by not making it clear to the claimant that he had an opportunity to make representations as to why his leave should not be cancelled immediately, or at a later date, did not in fact result in any prejudice. As a result of the questions that were asked during the decision-making process, the claimant did, in fact, provide the information that he wanted the decision-maker to consider when deciding whether to cancel his leave immediately. In the circumstances, there was no, or no material, breach of the principles of procedural fairness and certainly none that vitiated the decision.

For completeness, even if the decision had been flawed (which it is not) I would in any event have refused a remedy. Section 31(2A) of the Senior Courts Act 1981 provides that the court must refuse relief where it is highly likely that the outcome for the claimant would not have been substantially different if the conduct complained of had not occurred. The outcome here was the cancellation of leave with immediate effect. The conduct complained of was that the defendant did not make it clear to the claimant that he could make representations about whether the leave should, as a matter of discretion, be cancelled with immediate effect. The proper approach is set out in R (Bradbury) v Brecon Beacons National Park Authority [2025] EWCA Civ 489; [2025] 4 WLR 58 especially at paragraph 71, and R (Greenfields (IOW) Ltd) v Isle of Wight Council [2025] EWCA 488, [2025] 2 P & C.R 16 especially at paragraph 73. The court is concerned with evaluating the significance of the error on the decision-making process. It considers the decision that the public body has reached and assesses the impact of the error on that decision in order to ascertain whether it is highly likely that the outcome (the decision) would not have been substantially different if the error had not been made.

In this case, the decision was to cancel the claimant’s leave with immediate effect because he had failed to comply with a condition of leave. The conduct complained of was not telling the claimant that he could make representations about whether, as a matter of discretion, the immigration officer should decide not to cancel the leave with immediate effect. However, the claimant was asked a number of specific questions, and, in fact, provided all the information that he wished to provide before the decision was reached. The immigration officer reached the decision on the basis of all the information that the claimant wanted to be considered. In those circumstances, any error did not impact on the decision-making process. For those reasons, if the decision had been flawed because of a breach of procedural fairness, I would have refused a remedy.

22. A point to be noted about the above judicial observations is that s.31(2A) did not decisively apply to the facts of that appeal because the Court found that there was not a public law error in the challenged decision. The relief question under s.31(2A) did not, strictly speaking, arise because the decision was found not to involve unlawfulness. The counter-factual assessment of whether the decision would have been highly likely to have been the same without the error was obiter. In my discussion below, I explain why there are other features of distinction going to the lawfulness of the decisions I am reviewing.

23. The Court in Singaram relied upon the principles settled in the leading authority of R (Bradbury) v Brecon Beacons National Park Authority [2025] EWCA Civ 489; [2025] 4 W.L.R. 58. It is important to consider the principles which were settled here. In his discussion, Lewis LJ reached the following conclusions at [71]-[72] and [74]:

[71] In relation to section 31(2A), the court is concerned with evaluating the significance of the error on the decision-making process. It is considering the decision that the public body has reached, and assessing the impact of the error on that decision in order to ascertain if it is highly likely that the outcome (the decision) would not have been substantially different even if the decision-maker had not made that error. It is not for the court to try and predict what the public authority might have done if it had not made the error. If the court cannot tell how the decision-maker would have approached matters, or what decision it would have reached, if it had not made the error in question, the requirements of section 31(2A) are unlikely to be satisfied.

[72] […] Further, the Court of Appeal considered the section in R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214; [2020] PTSR 1446 (the decision was overturned on appeal to the Supreme Court but these observations were not the subject of comment in the Supreme Court and remain an accurate and helpful description of the position). It said this:

“272. The new statutory test modifies the Simplex test in three ways. First, the matter is not simply one of discretion, but rather becomes one of duty provided the statutory criteria are satisfied. This is subject to a discretion vested in the court nevertheless to grant a remedy on grounds of ‘exceptional public interest’. Secondly, the outcome does not inevitably have to be the same; it will suffice if it is merely ‘highly likely’. And thirdly, it does not have to be shown that the outcome would have been exactly the same; it will suffice that it is highly likely that the outcome would not have been “substantially different” for the claimant.

“273. It would not be appropriate to give any exhaustive guidance on how these provisions should be applied. Much will depend on the particular facts of the case before the court. Nevertheless, it seems to us that the court should still bear in mind that Parliament has not altered the fundamental relationship between the courts and the executive. In particular, courts should still be cautious about straying, even subconsciously, into the forbidden territory of assessing the merits of a public decision under challenge by way of judicial review. If there has been an error of law, for example in the approach the executive has taken to its decision-making process, it will often be difficult or impossible for a court to conclude that it is ‘highly likely’ that the outcome would not have been ‘substantially different’ if the executive had gone about the decision-making process in accordance with the law. Courts should also not lose sight of their fundamental function, which is to maintain the rule of law. Furthermore, although there is undoubtedly a difference between the old Simplex test and the new statutory test, ‘the threshold remains a high one’ (see the judgment of Sales LJ, as he then was, in R (Public and Commercial Services Union) v Minister for the Cabinet Office [2017] EWHC 1787 (Admin); [2018] ICR 269, para 89).”

[74] […] By way of example, the question for the court is whether it is highly likely that there would be no substantial difference in the outcome if the legal error had not occurred. That is a high test to surmount. I doubt that it is correct or helpful to express the test as expressing a standard somewhere between the civil and criminal burden of proof (as suggested in principle 3 in Cava-Bien). To give another example, principle 4 states that “the court is required to undertake an evaluation of the hypothetical or counterfactual world in which the identified unlawful conduct by the public authority is assumed not to have occurred” quoting one sentence (without context) from a judgment in the Divisional Court. Stated in those stark terms, the “principle” is open to misinterpretation or misapplication. The section emphatically does not require the court to embark on an exercise where the error is left out of account and the court tries to predict what the public body would have done if the error had not been made. Approaching section 31(2A) in that way would run the risk of the court forming a view on the merits and deciding if it thinks the public body would reach that view if it had not made the error. Rather, the focus should be on the impact of the error on the decision-making process that the decision-maker undertook to ascertain whether it is highly likely that the decision that the public body took would not have been substantially different if the error had not occurred.

24. Authoritative judicial observations were made to much the same effect, again by Lewis LJ, in R (Greenfields (IOW) Ltd) v Isle of Wight Council and another [2025] EWCA Civ 488; [2025] PTSR 2013 where the following was held, at [73]:

In relation to section 31(2A), the court is concerned with evaluating the signiﬁcance of the error on the decision-making process. It is considering the decision that the public body has reached, and assessing the impact of the error on that decision in order to ascertain if it is highly likely that the outcome (the decision) would not have been substantially diﬀerent even if the decision-maker had not made that error. It is not for the court to try and predict what the public authority might have done if it had not made the error. If the court cannot tell how the decision-maker would have approached matters, or what decision it would have reached, if it had not made the error in question, the requirements of section 31(2A) are unlikely to be satisﬁed.

Discussion

25. As I have indicated above, and as agreed by the parties, the sub strand of ground 1, reflected at paragraph [26] of the applicant’s skeleton argument, represents a decisive and dispositive challenge if it is resolved in the applicant’s favour, and the respondent’s relief argument under s.31(2A) of the 1981 Act fails. In essence, Ms Norman’s contention is that despite attempting to lawfully decide whether to cancel the applicant’s leave on no fewer than three occasions, the decision-maker has still not considered highly relevant information touching on the capacity in which he was working for Texas Pizza. In particular, it is suggested that it was always a critical question to determine whether the applicant was working as a pizza delivery driver, which would not be in accordance with the conditions of his leave to remain, or whether he was employed in a managerial capacity overseeing the production and delivery of pizza. To this end, and in particular, it is argued that the contract of employment he relied upon was, on its face, dated before the encounter with PC Trebble and recorded his role as being managerial. This, together with the letter of Mr Aziz dated 10 May 2025, is said to have plainly supported his case that he had not breached the conditions of his leave at all.

26. In seeking to persuade me that I should not find in favour of the applicant on this discrete point, Mr Howarth relied on the dicta cited above from South Bucks v Porter (No 2) in which it is clear that the reasons in support of a decision should not be examined with an overly legalistic microscope. Otherwise, the danger is that the minutiae becomes overly prominent at the expense of seeing the overall decision purposefully and fairly. To reiterate what their Lordships held in South Bucks v Porter (No 2), the reasons need refer only to the main issues in dispute, not to every material consideration. However, care is needed not to misunderstand this statement of principle. The Court was discussing the extent to which lawful reasons must set out the matters considered. Much the same point was made by the Supreme Court at [23] of Zoumbas and the inferences which fall to be legitimately drawn from material which was demonstrably and expressly before the decision-maker. The position in law is entirely different if the reasons in support of a decision strongly suggest that material considerations were not considered at all. At [58] and [62]-[63] of his skeleton argument, Mr Howarth made the following points on behalf of the respondent:

[58] The Applicant’s later evidence from Texas Pizza was relevant but not determinative. The contract identifies the job title “Service Manager”, states a zero-hours arrangement and describes front-of-house and customer-service duties. It does not establish that the decision-maker was bound to treat the delivery activity observed on 9 May as managerial work. [TB/95–98]

[62] The Respondent does not maintain that no contract bearing a date before the encounter existed. The contract at [TB/96–98] is dated 1 May 2025 and identifies the Applicant as a Service Manager.

[63] The operative decision referred to the absence of an “independently sourced” pre-encounter contract. That observation should not be treated as a finding that no document had been produced. More importantly, the decision did not turn solely upon the absence of a contract. Its central reasoning was that the objective circumstances demonstrated delivery work. [TB/363–365]

27. Certainly, at [58] and [62], the respondent recognises the contract of employment was relevant and it was not suggested that a contract bearing a date before the encounter never existed. This strikes me as acceptance that the contract the applicant relied upon was a material consideration in deciding the capacity in which he was working at the relevant time. It is clear to me that it was demonstrably material to the decision-making analysis which was required. The question I must ultimately ask myself is whether the way in which this material consideration was assessed was lawful.

28. The only part of the challenged series of decisions which expressly touched upon a contract of employment with Texas Pizza is the following line: “You have not provided an independently sourced contract of employment stating your position as managerial that predates your encounter with Police”. The strong inference to be drawn from this line is that the view was taken that in the absence of an independently sourced contract of employment, the contract and letter from Mr Aziz which was produced would not be considered. This dovetails with the omission to expressly consider the contract which was provided or the letter from Mr Aziz. The reliability of these documents is not rejected by the decision-maker. Instead, there is the most cursory assessment of what is regarded as a more reliable form of such evidence (the missing independently sourced contract of employment) that the decision-maker would like to see. Assessing the overall decision, I find that the decision does not demonstrate any substantive engagement with the documents and proceeds on a legally erroneous footing that the absence of independently sourced evidence justified sidelining them. I am satisfied that it is an unlawful procedural approach to fail to assess material considerations and evidence because it is not of a higher evidential standard. A decision-maker must confront and deal with the material considerations and evidence before them, not sideline such matters because it is possible to conceive of a stronger form of such evidence.

29. The public law error I have described above is different in kind to what was before the Court of Appeal in Singaram. A central reason why there was not an error in that decision-making process was that it was found that all of the relevant information was before the decision-maker and that providing an opportunity to make representations would not have materially added to the relevant matters which fell to be considered (see [53] of Singaram). This is qualitatively distinct from the error I have discussed above where a material consideration was before the decision-maker but left out of account on an unlawful basis. The failure to consider material considerations plainly prejudiced the applicant in how this decision was reached.

30. The next argument I must address is whether the outcome would be highly likely to be substantially the same were it not for the error. Mr Howarth pointed to various features of the contract of employment which raised meaningful doubts as to whether it reflected the truth of what was agreed between the applicant and Mr Aziz. An example is that it was rather odd and inconsistent for such a contract to be expressly made on a ‘zero-hours’ basis and yet to provide for holiday pay. There was undoubtedly force to these points and it may be that a decision-maker ultimately takes them in rejecting the reliability of this document and others. However, a decision-maker has not taken these points yet and I must exercise caution not to supplant the role of the competent decision-maker by coming to my own conclusion on the merits of the material considerations which fall to be evaluated. This would be to descend into the kind of impermissible predictive assessment the authorities have cautioned against in this field. On an objective basis, it would be open to the respondent decision-maker to rely on the contract as reliable and supportive of the applicant’s case that he had not breached the conditions of his leave. It is perhaps more likely that this document, and others, would be viewed with some caution and scepticism given the other evidence and indications in the matter, but I reject the proposition that it is highly likely such that s.31(2A) means that relief should be refused.

31. In view of the decision I have reached on this decisive element of the applicant’s grounds, it is unnecessary to decide the remaining grounds.

Conclusion

32. I am satisfied that the applicant has established that the respondent has failed to consider material matters going to the decision made to cancel his leave. The decision is accordingly unlawful and the claim succeeds.

33. I am not minded to conclude that it would be highly likely that the outcome would be the same were it not for the error. At the hearing, Ms Norman abandoned the suggestion she had previously made that I should make a mandatory order compelling the respondent to conclude that there was not a breach of the relevant conditions. Instead, I quash the respondent’s decisions. The matter will need to be lawfully considered afresh.

34. The parties are invited to draw up the necessary draft order in light of my judgment.

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