Mohammad Mohibullah, R (on the application of) v The Secretary of State for the Home Department

Where several lawful immigration decision-making routes are available, the decision maker must identify and conscientiously consider them, particularly where they carry materially different procedural consequences. A Tier 4 student alleged to have used deception, and also withdrawn from study, falls within overlapping parts of the Secretary of State’s Curtailment of Leave guidance. Both must be considered.

An unexplained failure to follow applicable published policy is unlawful under the Lumba principle. A curtailment decision underpinned by an allegation of TOEIC deception is reviewed on Wednesbury principles, not by proof of a precedent fact. Conspicuous substantive unfairness may itself constitute irrationality where it amounts to an abuse of power. Knowledge of the gist of the deception allegation will normally satisfy procedural fairness.

The applicant, a Bangladeshi Tier 4 student, sought judicial review of the Secretary of State’s decision of 18 December 2014 to curtail his leave under paragraph 323A(a)(ii)(2) of the Immigration Rules. Blakehall College had withdrawn him from his course after UKVI alleged that his TOEIC certificate had been obtained by deception.

The Tribunal found that UKVI had pressured the college into withdrawing a cohort of students, including the applicant. The applicant contended that the Secretary of State should instead have considered routes based on alleged deception which carried different procedural protections, including an appeal. He also alleged irrationality and procedural unfairness.

The central issues were the lawfulness of the chosen curtailment route, compliance with published policy, the applicable standard of review for the deception allegation, and whether the applicant had been given a fair opportunity to answer it.

1. The claim succeeded. The Tribunal quashed the curtailment decision of 18 December 2014.

2. The Secretary of State had three potentially available routes: removal under section 10 of the Immigration and Asylum Act 1999, discretionary curtailment for deception, and mandatory Tier 4 curtailment following withdrawal from study. Choosing between them involved a public-law discretion. The decision maker failed to recognise and consider the alternatives, which were material because they could provide a statutory right of appeal. That failure amounted to disregard of material considerations and fettering of discretion: [52]–[54].

3. The applicable Curtailment of Leave guidance was a single instrument and had to be read as a whole. The applicant fell within both its false-representations and mandatory-Tier-4 sections. The mandatory wording did not eliminate the need to consider other available routes. The decision maker neither considered the guidance nor followed its required consultation and evaluative steps. There was no justification for that departure, contrary to Lumba v Secretary of State for the Home Department [2011] UKSC 12: [55]–[60].

4. Following R (Giri) v Secretary of State for the Home Department [2015] EWCA Civ 784, whether TOEIC deception occurred was a factual issue for the Secretary of State, reviewable for rationality rather than as a precedent fact. On the evidence then available, the ETS notification made the deception assessment rational: [62]–[63].

5. Nevertheless, the choice of the unappealable mandatory-curtailment route was conspicuously unfair and therefore irrational. UKVI had improperly pressured the college to withdraw the applicant; the chosen route deprived him of a suitable merits forum; and no reason was given for the exceptional and inconsistent choice of route. Those features amounted to an abuse of power: [64]–[75].

6. The separate procedural-unfairness ground failed. The applicant knew the gist of the allegation, its Home Office source, and the possibility of further action for about four months before the decision. He could have made representations and was not disabled from doing so: [76]–[84]. The claim was not defeated by delay: [85]–[88].

• Upper Tribunal (Immigration and Asylum Chamber): Judicial review of the Secretary of State’s curtailment decision of 18 December 2014. The claim succeeded and the decision was quashed.