Diffa, R (on the application of) v Secretary of State for the Home Department

An immigration decision will be lawful where the material before the decision-maker provides a reasonable evidential basis for concluding that a student is not intending to pursue the course for which leave was granted. Later evidence cannot retrospectively invalidate an otherwise reasonable decision unless it is placed before the Secretary of State for a further decision. A breach of student conditions may properly support administrative removal where the claimant failed to notify the Secretary of State of changed circumstances. Compassionate circumstances and an otherwise good immigration history do not, without more, make reliance on the breach unfair or irrational.

The claimant, a Nigerian national holding student leave, challenged the cancellation of her leave and the refusal of leave to enter for her daughter after immigration officers concluded that she was not intending to resume her studies until July 2006 and had breached her study conditions. She relied on pregnancy, bereavement and an asserted agreement with her college to resume studies earlier. Permission to apply for judicial review was granted after an earlier judge considered the July conclusion apparently erroneous on the evidence then available. Further immigration interview and college evidence was subsequently disclosed.

The central issue was whether the decisions made on 26 and 29 January 2006 were lawful on the material then before the immigration officers.

1. Claim dismissed. The challenge was not dismissed merely because the claimant’s leave would in any event have expired in July 2006. The court considered the legality of the cancellation because it remained part of her immigration record.
2. The immigration officers had a sufficient evidential basis for concluding that the claimant did not intend to study before July 2006. The college had reported that she had sought postponement because of pregnancy, and her answers about what she would do before July were equivocal. On that material, the decision was reasonable and unimpeachable.
3. The court distinguished between the reasonableness of the original decision and the claimant’s later assertion that she had in fact begun, or intended to begin, the course earlier. Later evidence might have required a further decision if cogent evidence had been presented to the Secretary of State, but that had not occurred.
4. The claimant accepted that she had not studied between July and November 2005. Reliance on that breach under Immigration and Asylum Act 1999 section 10 and paragraph 395D of the Immigration Rules was neither unfair nor irrational. She had not notified the defendant of the change in her circumstances. The evidence of pregnancy-related difficulty was also scanty.
5. The claimant’s previously unblemished immigration history did not invalidate an otherwise lawful decision. The proposed return to the United States, rather than Nigeria, was accepted to have been an error, but that did not undermine the challenged decisions. No costs order was made because the late disclosure of the immigration evidence may have contributed to the proceedings.

This was a first-instance judicial review. Permission was granted by Mr Justice Fulford on 24 May 2006. The hearing was later adjourned by Mr Justice Sullivan for disclosure of the immigration officers’ records. The claim was then determined and dismissed by Mr Justice Underhill.