Manish Kumar, R (on the application of) v The Secretary of State for the Home Department

Under rule 9.9.2 of the Immigration Rules, cancellation of entry clearance requires a structured decision. The officer must identify a failure to comply with a reasonable requirement, consider any excuse, decide objectively whether it is reasonable, and only then decide whether to exercise the cancellation discretion.

At a substantive immigration interview following detention and suspension of permission to enter, procedural fairness and access to justice may require effective legal assistance. The appropriate safeguard is fact-specific. It may include prior disclosure and legal advice, or allowing a suitably qualified representative to attend remotely. A decision which fails to engage with the excuse advanced, the applicable policy, or the statutory sequence is unlawful.

The claimant, an Indian national holding student entry clearance, arrived at Manchester Airport and was detained for further examination after concerns arose about his proposed studies and arrangements in the United Kingdom. He declined substantive interviews unless his solicitor was permitted to attend, including remotely.

Border Force cancelled his permission to enter under rule 9.9.2 of the Immigration Rules. The claimant sought judicial review on grounds including procedural unfairness, denial of access to justice, failure to follow policy, irrationality and unlawful detention. The central issues were whether he had a reasonable excuse for not attending the interview without his solicitor, whether effective legal assistance was required, and whether the decision-maker had lawfully exercised the rule 9.9.2 process.

1. The claim succeeded. The cancellation decision was unlawful. The court did not determine the ultimate effect of quashing the decision on the claimant’s immigration status.
2. Rule 9.9.2 contains a structured sequence. The person must have failed to comply with a requirement to attend an interview or take another specified step; the requirement must have been reasonable; any excuse must be considered; and the excuse must be found, objectively, not to be reasonable. Only after those conditions are met does the discretion to cancel arise.
3. The decision notice did not identify the claimant’s stated excuse, namely his request for his solicitor to attend. It did not evaluate that excuse or explain why it was unreasonable. Nor did it separately demonstrate the exercise of the cancellation discretion. The decision therefore failed to show that the rule’s required reasoning had occurred.
4. At the primary control point the court left open what procedural safeguards apply. This case concerned a later, more searching interview, after detention, suspension of permission to enter, and exposure to cancellation of an existing visa. In that context the claimant was entitled to know the nature of the challenge and to obtain effective legal assistance. Access to justice is practical and fact-specific. It did not invariably require a lawyer’s physical presence, but could have been secured by adequate information and prior legal advice, or by permitting the solicitor to attend remotely.
5. The Home Office Interview Policy indicated a default position that a suitably qualified representative should be admitted to a later interview, subject to a recorded discretion to require privacy for good reasons. The officers instead proceeded on the premise that there was no right to representation and never lawfully considered whether to admit or exclude the solicitor.
6. The irrationality ground was subsumed within the preceding grounds. Since the decision was unlawful, detention was unlawful at least from the date of the decision. The damages issue was to be transferred to the county court.