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

Permission for judicial review may be refused where a challenge is unarguable or where the outcome would have been substantially the same despite the alleged error. A person arriving with continuing leave may have that leave cancelled under the Immigration Rules where the evidence supports an alternative cancellation ground, even if the stated ground is arguable. Procedural fairness does not generally require an immigration applicant to be offered legal advice before waiving administrative review, particularly where the waiver and its consequences are understood, the applicant is not vulnerable and interpretation is available. A waiver cannot be revoked where the Rules provide no mechanism for revocation. Removal and detention challenges ordinarily fail where the underlying immigration decisions remain lawful and detention pending removal is rationally reviewed.

The claimant, an Indian national granted entry clearance to study in the United Kingdom, was refused entry after immigration officers concluded that his English ability was inconsistent with the requirements relied upon for his student leave. His continuing leave was cancelled, he waived administrative review, and removal directions were made. He was detained pending removal but later released.

Permission to challenge the cancellation, refusal to reopen administrative review, removal and detention decisions was refused on the papers. The claimant renewed his application before the Administrative Court. The issues included procedural fairness, the proper basis for cancellation under the Immigration Rules, access to legal advice before waiver, revocation of waiver, and the effect of any error on the result.

1. Disposition. The renewed application for permission to apply for judicial review was refused and the claim was dismissed. The grounds were unarguable and, alternatively, relief was barred because the outcome would not have been substantially different under section 31(3D) of the Senior Courts Act 1981.
2. Cancellation of leave. The claimant had a fair opportunity to answer concerns about his English ability. The interview conducted through an interpreter allowed him to explain his earlier answers. The decision was not irrational or based on a material mistake of fact merely because he answered some questions correctly; the substance of the decision was that he could not hold the required conversation and had given materially inadequate answers.
3. The court considered it arguable that “change of circumstances” in paragraph 321A(1) of the Immigration Rules referred to an objective change in the applicant’s circumstances or case, rather than merely a later officer’s different assessment. However, the evidence strongly supported cancellation under paragraph 321A(2), because false representations may have been made or material facts withheld concerning the claimant’s English ability. The same outcome was therefore highly likely.
4. Administrative review waiver. There was no general entitlement to legal advice before signing the waiver. The claimant understood its essential consequences, was not vulnerable, was well and had an interpreter. The case was distinguishable from R v Secretary of State for the Home Department, Ex p Anderson [1984] QB 778. It was also distinguishable from the access-to-justice principle discussed in R (UNISON) v Lord Chancellor [2017] 3 WLR 409. The Rules made no provision for revocation, and no right to revoke could be implied.
5. The removal challenge depended on the invalidity of an earlier decision and was therefore not arguable. The access-to-justice point was academic because legal advice and interim relief were obtained before removal took effect. Detention pending removal was lawful and rationally reviewed, with no barrier to removal apart from interim relief and a high risk of absconding. A damages claim for unlawful detention was more appropriately brought in the County Court.

• Administrative Court: Permission to apply for judicial review was refused on the papers by Nicol J on 14 December 2020.
• High Court (Administrative Court): The renewed application was refused and the claim dismissed. [2021] EWHC 260 (Admin)