Eranga Gayashan Kuruwitage, R (on the application of) v The Secretary of State for the Home Department

The section 10 removal power may be exercised where the Secretary of State has sufficient evidence that a person has breached a condition of leave. An applicant challenging its use must show that there was no evidential basis for the decision, or that it constituted an abuse of power.

A case concerned with a person given no opportunity to comment on an alleged breach does not govern a case in which the person admitted both working and knowing that work was prohibited. In those circumstances, an available out-of-country appeal may provide an adequate remedy.

The applicant, a Sri Lankan national, had leave to remain as a student. His later leave prohibited employment. After his college’s sponsor licence was revoked, he was arrested and admitted that he had been working voluntarily for 20 hours a week despite knowing that he had no permission to work.

The Secretary of State made removal directions under section 10. The applicant sought judicial review, contending that the power had been exercised without evidence and that the Secretary of State should instead have curtailed his leave, thereby creating an in-country appeal. Permission had been granted before disclosure of the immigration officer’s notebook recording the admissions.

The central issue was whether the removal decision lacked an evidential basis or involved an abuse of power.

1. The judicial review application was dismissed. The applicant’s admission, recorded in the immigration officer’s notebook and confirmed by his employer, provided more than sufficient evidence that he had worked in breach of the conditions of his leave. That evidence engaged the section 10 removal power.

2. Under paragraph 6 of the Immigration Rules, unpaid voluntary work could constitute work. The applicant admitted both that he had been working and that he knew he lacked permission to do so. He therefore could not establish that the Secretary of State had no evidence on which to make the removal decision.

3. Shahbaz Ali v Secretary of State for the Home Department [2014] EWHC 3967 (Admin) was distinguished. That case was principally concerned with an applicant who had had no opportunity to comment on, or be interviewed about, the alleged breach of condition. The present applicant had made an express admission.

4. The applicant also failed to demonstrate that the Secretary of State’s use of the section 10 procedure was an abuse of power. An out-of-country appeal was available in which factual and legal challenges to the removal directions could be advanced. No sound reason was shown why that remedy was insufficient.

5. The applicant was ordered to pay the respondent’s costs, to be assessed if not agreed. Permission to appeal was refused.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial review dismissed. The court refused permission to appeal under paragraph 44(4B).
• Permission stage: Upper Tribunal Judge Freeman granted permission for judicial review before the respondent disclosed the immigration officer’s notebook recording the applicant’s admissions.