Thapa, R (On the Application Of) v Secretary of State for the Home Department

An immigration officer who has a discretion whether to make removal directions under section 10 of the Immigration and Asylum Act 1999 must recognise and exercise that discretion fairly, rationally and transparently. The decision-maker must consider the gravity of the alleged breach, comply with relevant published policy, or explain any departure from it. At least outline reasons and the gist of the evidence relied upon must be given when the decision is made. Judicial review may be appropriate where the challenge concerns the prior choice of enforcement route, rather than the merits of the removal decision, because an out-of-country appeal may not provide an adequate remedy.

The claimant, a Nepalese student, held leave to remain but no longer had permission to work. An immigration officer believed that he had been working in breach of that condition and made removal directions under section 10(1)(a) of the Immigration and Asylum Act 1999. This triggered an out-of-country appeal under the Nationality, Immigration and Asylum Act 2002.

The claimant sought judicial review, arguing that the officer had failed to exercise the discretion whether to use section 10 rather than curtailment, had acted inconsistently with published policy, and had failed to give adequate reasons or disclose the gist of the evidence. The central issues were whether judicial review was an appropriate remedy and whether the enforcement decision was lawful and fair.

1. Judicial review was appropriate. The challenge concerned the prior decision whether to use section 10, or another enforcement route, rather than the factual or legal merits of the alleged breach. The First-tier Tribunal could not provide an adequate remedy after removal, because the choice of route determined whether the claimant had an in-country or out-of-country appeal. The public importance of clarifying the lawful exercise of the discretion also supported retaining the claim.
2. An immigration officer has a discretion whether to enforce an alleged breach by section 10 removal directions or by curtailment. Where a discretion exists, it must be recognised, exercised fairly and rationally, and exercised transparently. The decision-maker must record sufficient facts to enable the court to assess both the precedent fact and the exercise of discretion.
3. The Secretary of State’s published Enforcement Instructions and Guidance required firm and recent evidence and stated that the breach had to be sufficiently grave to warrant section 10 action. The evidence in this case did not meet those indicators, and there was no evidence that the officer had considered the gravity of the breach or the alternative enforcement route.
4. The fairness requirements applicable to enforcement against illegal entrants under R(Uluyol & Cakmak) v An Immigration Officer applied equally in substance to a person lawfully present but alleged to have breached a condition of leave. The requirements were no greater, but could not be lower.
5. Fairness required at least outline reasons and the gist of the evidence to be communicated when the section 10 decision was made. This enabled the court to assess whether the discretion had been lawfully exercised and helped preserve a fair appeal process despite the statutory requirement for an out-of-country appeal.
6. The application was allowed and the decisions of 28 January 2013 were quashed. Questions of further relief and consequential matters were reserved.