Nagappan Singaram, R (on the application of) v The Secretary of State for the Home Department

When a discretionary power to cancel limited immigration leave is exercised under the Immigration Rules paragraph 9.8.8, procedural fairness applies both to establishing non-compliance with a condition and to deciding whether cancellation should occur, and whether it should take immediate effect. The content of fairness is contextual. The person must understand the gist of the alleged breach and have a fair opportunity to address matters relevant to the discretion. An express invitation to make representations on cancellation is not invariably required where the process has in substance elicited all relevant representations and no material prejudice results. Relief may in any event be refused under section 31(2A) of the Senior Courts Act 1981 where it is highly likely that the outcome would not have been substantially different.

The claimant held student leave subject to a condition permitting no more than 20 hours’ work per week during term time. Following an immigration enforcement visit to an off licence and interviews about his employment, the defendant cancelled his leave with immediate effect under paragraph 9.8.8 of the Immigration Rules for breach of that condition.

Permission for judicial review was refused by the High Court, including after an oral hearing on 21 March 2024. Nugee LJ granted permission on two grounds and directed that the claim proceed in the Court of Appeal. The issues were whether the cancellation process was procedurally unfair and whether the evidence established a breach of the weekly work limit.

Disposition. Lewis LJ gave the leading judgment. Phillips and Zacaroli LJJ agreed. The claim was dismissed, and the cancellation of the claimant’s leave was held lawful and valid.

1. Applicable fairness. The significant consequences of cancelling leave with immediate effect meant that procedural fairness applied to the exercise of the power in paragraph 9.8.8 of the Immigration Rules. Its content depended on the legislative framework, the nature of the decision-making process and the facts. The approach reflected Lord Mustill’s principles in R (Doody) v Secretary of State for the Home Department [1994] 1 AC 531 at p 560.
2. Two aspects of the power. Paragraph 9.8.8 involved determining whether the person had failed to comply with a condition of leave and deciding, as a matter of discretion, whether to cancel leave immediately or at a later date. Fairness applied to both aspects. The analysis in Balajigari v Secretary of State for the Home Department [2019] EWCA Civ 673; [2019] 1 WLR 4647 was analogous: the claimant had to understand the gist of the concern and have an opportunity to address matters relevant both to the alleged breach and to the discretion.
3. Application to the breach. The claimant knew that the issue was compliance with the 20-hour condition. The caution clearly stated the suspicion that he had worked more than permitted, and the interviews gave him an adequate opportunity to explain his work and hours. No further probing was required.
4. Application to the discretion. The claimant was not expressly told that he could make representations on whether leave should be cancelled, or cancelled immediately. However, the questioning elicited all the matters he said he would have relied upon, including his studies, course expenditure, wish to complete his degree, working pattern, and absence of relevant health or family circumstances. The underlying purpose of procedural fairness was therefore achieved and there was no, or no material, breach. The court applied the approach illustrated by George v Secretary of State for the Environment (1979) 38 P & CR 608 at p 517 and R (Save our Stonehenge World Heritage Site Ltd) v Secretary of State for Transport [2024] EWCA Civ 1227; [2025] PTSR 726 at para 75.
5. Alternative remedy analysis. Even if there had been a procedural flaw, relief would have been refused under section 31(2A) of the Senior Courts Act 1981. Applying R (Bradbury) v Brecon Beacons National Park Authority [2025] EWCA Civ 489; [2025] 4 WLR 58 at para 71 and R (Greenfields (IOW) Ltd) v Isle of Wight Council [2025] EWCA 488; [2025] 2 P & C.R 16 at para 73, the error would not have affected the decision because all relevant information had already been provided.
6. Breach of condition. The decision was based on admitted work in earlier weeks, not on the later week relied upon by the claimant. His clear admission that he began working at Lucky’s on 15 October 2023, together with his admitted Tesco hours, established approximately 38 hours’ work per week. The immigration officer was entitled to conclude that the 20-hour condition had been breached.

1. Court of Appeal (Civil Division): Nugee LJ granted permission for judicial review on two grounds and directed that the claim proceed in the Court of Appeal. The court dismissed the claim and upheld the lawfulness of the cancellation decision.
2. High Court, King’s Bench Division, Administrative Court: Permission for judicial review was refused on the papers and again after an oral hearing on 21 March 2024.