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

Immigration rules channel the Secretary of State’s prerogative immigration powers, but they need not prescribe every detailed case-working instruction. A discretion remains available unless the rules prohibit the proposed action. Rule 34J treats an application as withdrawn when the passport is returned for travel outside the common travel area, rather than when a request for withdrawal is made. Internal Immigration Directorate Instructions must be consistent with the rules, but do not have the force of law. A requirement for a clear and unambiguous written withdrawal request does not oblige the Secretary of State to accept the withdrawal. Where an application relies on a suspected bogus qualification and withdrawals form part of a wider pattern, the Secretary of State may refuse to permit withdrawal and determine the application.

The claimant, who had made a Tier 1 post-study work application supported by a Cambridge College of Learning qualification, sought judicial review of its refusal. His application had been placed on hold during an investigation into the college. He later requested withdrawal, but the Secretary of State determined the application and awarded zero points because the qualification fell within an instruction identifying unsupported qualifications.

The claimant argued that paragraph 34J of the Immigration Rules applied, that the relevant internal guidance required acceptance of his withdrawal, and that the Secretary of State lacked power to determine an application after withdrawal without a further immigration rule. The central issues were the effect of paragraph 34J, the status of internal instructions, and whether the Secretary of State could act on the application in the circumstances.

1. The judicial review claim was refused. The claimant was ordered to pay the Secretary of State’s costs, to be assessed if not agreed. Permission to appeal was refused.
2. The Immigration Rules derive from section 3(2) of the Immigration Act 1971. They channel the exercise of the prerogative power, but they do not need to contain every detailed or specific administrative instruction. If the rules do not prohibit a particular exercise of discretion, that discretion remains available.
3. Paragraph 34J provides that an application is treated as withdrawn when the passport is returned in response to a request for travel outside the common travel area, provided the application has not already been determined. It does not require withdrawal merely because a request has been made. The Secretary of State could therefore postpone returning the passport while determining the application.
4. Under Schedule 2, Part 1, paragraph 1(3) of the Immigration Act 1971, immigration officers must follow instructions given by the Secretary of State, provided they are not inconsistent with the Immigration Rules. The instructions have no force of law and cannot replace or alter the rules.
5. The guidance requiring a clear and unambiguous written withdrawal request was directed to avoiding ambiguity. It did not oblige the Secretary of State to accept every such request. The policy of investigating applications supported by suspected bogus qualifications, particularly against a pattern of attempted withdrawals, was lawful and consistent with paragraph 34J.

The judgment itself records the following procedural history:

• High Court (Administrative Court): Mr Ian Dove QC, sitting as a deputy High Court judge, granted permission on the withdrawal issue but refused permission on the fee and substantive decision-making grounds.
• High Court: Mr Justice Stadlen adjourned the matter for further evidence and indicated that it should, if possible, return before him.
• High Court (Administrative Court): Mr Justice Irwin refused the judicial review claim and refused permission to appeal. Any further appeal would require permission from the Court of Appeal.