MS SHANILA KANWAL (R on the application of) v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Challenges to discretionary immigration decisions to curtail leave and detain are ordinarily reviewed on conventional public law principles, not by a full merits assessment or a precedent-fact approach. Procedural fairness is objective and context-dependent. It generally requires notice of the substance of the adverse concern and a reasonable opportunity to respond, but does not invariably require a written minded-to decision, an oral hearing, legal advice or time to assemble documents. Where the issue is straightforward and immediate enforcement action is rationally considered necessary, questioning at the enforcement visit may suffice. A procedural defect may nevertheless attract no relief where it is highly likely that the outcome would have been substantially the same. Detention must comply with the Hardial Singh principles, but the court must assess the position without hindsight.

The claimant, a Pakistani national with Tier 1 (Entrepreneur) leave, challenged decisions made during an immigration enforcement visit to curtail her leave, remove her under section 10 of the Immigration and Asylum Act 1999, and detain her. The defendant considered that she had been working as a receptionist at a hotel in breach of her leave conditions and was living there.

The claimant alleged procedural unfairness, an irrational evidential basis, and unlawful detention. A preliminary issue had established that the curtailment decision was reviewable on ordinary public law grounds rather than by determining a precedent fact. The central issues were whether the procedure and decisions were lawful, and whether the detention complied with the Hardial Singh principles.

1. Claim dismissed. The decisions to curtail leave, remove and detain were lawful.
2. The legality of the discretionary curtailment decision was governed by ordinary public law and Wednesbury principles. The court was not required to determine as a precedent fact whether the claimant had worked in breach of her conditions. The same supervisory approach applied to detention, subject to the Hardial Singh limits. This followed the approach in R (Giri) v SSHD [2015] EWCA Civ 784 and R (LE (Jamaica)) v Secretary of State for the Home Department [2012] EWCA Civ 597.
3. Procedural fairness was an objective, contextual question. The claimant knew that the officers were investigating illegal working and was asked about whether she worked at the hotel and where she lived. She had a fair opportunity to explain her position before the decisions were made. The inquiry was straightforward. A minded-to procedure, written notice, oral hearing, legal advice or time to obtain documentary evidence was not required. The cases concerning complex or nuanced allegations, including ex p. Fayed and Sapkota, were materially different.
4. The claimant’s answers, the evidence that her belongings were in room 301, her implausible account of visiting room 303, and her identification as a hotel employee provided a rational evidential basis for concluding that she was working in breach of her leave conditions. The mistaken belief that she was restricted to work for a particular company was not the reason for curtailment and had no material bearing on the decision.
5. Alternatively, any procedural unfairness would not have justified relief. The defendant considered the claimant’s subsequent representations and it was highly likely that the same outcome would have followed, within section 31(2A) of the Senior Courts Act 1981.
6. The detention challenge failed. Having reasonably found a breach of conditions, the defendant could rationally regard the claimant as presenting a significant absconding risk. The position had to be assessed without hindsight. When removal ceased to be imminent because of the judicial review and interim stay, the claimant was released.