Ancy Lazer Andrews, R (on the application of) v The Secretary of State for the Home Department

Immigration permission may be cancelled where a person works outside the conditions of limited leave. Unpaid work is not necessarily “voluntary work”. Where the Immigration Rules adopt a statutory definition, that definition governs over inconsistent guidance. Under section 44 of the National Minimum Wage Act 1998, voluntary work requires work for a qualifying charity, voluntary organisation, associated fund-raising body or statutory body, together with the statutory restrictions on payment and benefits. A decision to cancel permission under Immigration Rule 9.8.8 is discretionary, but the decision-maker must consider the relevant facts and circumstances. A decision will be lawful where its reasons are intelligible and adequate and fall within the range of reasonable decisions open to the decision-maker.

The claimant, an Indian national holding skilled worker permission in the health care sector, was observed serving customers in a convenience store. She maintained that she was volunteering without remuneration. The Secretary of State cancelled her permission on the basis that she had breached its work conditions, refused her representations, issued a removal window and detained her.

Permission for judicial review was granted on challenges to the cancellation and refusal decisions. The challenges to removal and detention were consequential. The central issues were whether unpaid work in the store constituted permitted voluntary work, whether the cancellation decision was lawful and rational, and whether adequate reasons had been given.

1. The claim was dismissed. The challenges to the removal notice and detention decision were parasitic on the challenge to cancellation. Detention had also become academic following release.
2. The statutory hierarchy was material. The Immigration Act 1971 was the source of the Secretary of State’s immigration powers. The Immigration Rules prevailed over guidance, and the statute prevailed over both. The principles stated in R(Alvi) v SSHD [2012] UKSC 33, R(Munir) v SSHD [2012] UKSC 32 and applied in Cakani v Secretary of State for the Home Department [2013] EWHC 16 (Admin) were adopted.
3. “Voluntary work” in the Immigration Rules had the meaning supplied by section 44 of the National Minimum Wage Act 1998. It therefore required more than unpaid work. The work had to be for a charity, voluntary organisation, associated fund-raising body or statutory body, and the statutory restrictions on payment and benefits had to apply. The convenience store did not fall within those categories.
4. The claimant’s work serving customers and operating the till was outside the occupation for which permission had been granted. The guidance could not enlarge the statutory and Rules-based meaning of voluntary work. Even the limited period accepted by the claimant constituted a breach of her conditions.
5. Rule 9.8.8 permitted cancellation where the conditions of permission had not been complied with. Cancellation was discretionary, so the Secretary of State had to establish the relevant facts and consider the individual circumstances. The decision recorded the evidence, including the finding that the claimant had knowingly worked outside her visa conditions and had attempted to deceive immigration officers. The discretion had therefore been exercised lawfully.
6. The reasons were intelligible and adequate under South Bucks DC v Porter (No 2) [2004] UKHL 33. The decision was neither irrational nor outside the range of reasonable decisions open to the decision-maker. The process and outcome satisfied the irrationality principles discussed in Sharon Pantellerisco and ors v Secretary of State for Work and Pensions [2021] EWCA Civ 1454.

First-instance judicial review. The judgment records that permission was granted by Mr Tim Corner KC, sitting as a Deputy High Court Judge. The High Court dismissed the claim.