Keren Soares Thadeu, R (on the application of) v The Secretary of State for the Home Department

The cancellation of immigration permission for breach of a condition is discretionary. The decision-maker must establish the relevant facts and consider all relevant circumstances, including the reasons for and circumstances of the breach and the consequences of cancellation. Where the person has made representations before a revised decision, those representations must be addressed. A decision that treats the fact of breach as determinative, or ignores material explanations, is unlawful. If cancellation is quashed, detention founded on that cancellation is unlawful. However, an initial detention decision may still satisfy the Hardial Singh principles and Article 5 of the European Convention on Human Rights on the facts existing when it was made.

The claimant, a Brazilian visitor, entered the United Kingdom with leave to enter. She accepted accommodation and food in return for voluntary work at a hostel which was not a registered charity. The Secretary of State cancelled her leave under paragraph 9.8.8 of Part 9 of the Immigration Rules and detained her.

The first cancellation letter relied on superseded Immigration Rules and alleged a criminal offence. A revised letter corrected the rule reference but did not address the claimant’s subsequent explanation that she had innocently misunderstood her conditions. The claim challenged the cancellation decision, the fairness of the procedure and the lawfulness of detention.

1. Cancellation decision quashed. Paragraph 9.8.8 of Part 9 of the Immigration Rules conferred a discretionary power. The Secretary of State’s guidance required the relevant facts and all relevant circumstances to be established and considered. Relevant matters included why and how the breach occurred, the passage of time and the impact of cancellation.
2. The claimant was not given a proper opportunity to explain why her leave should not be cancelled. The interview transcript did not support the assertion that she had been asked that question. Her explanation in the pre-action protocol letter was not addressed in the revised decision. The procedure was properly characterised as slipshod.
3. The court could not conclude that the outcome would highly likely have been substantially the same had the relevant explanation and circumstances been considered. Grounds 1 and 2 therefore succeeded, and both cancellation decisions were quashed.
4. It followed that detention based on the unlawful cancellation was unlawful. The later bail refusal was also unjustified because the pre-action correspondence materially altered the perspective on the claimant’s visit and breach. Bail should then have been granted.
5. Had the cancellation challenge failed, the initial detention would not have been impugned under the Hardial Singh principles or Article 5. The initial assessment that removal was imminent and that there were relevant absconding risks was not irrational. The claim for unlawful detention was transferred to the county court for assessment of damages for detention from 12 September to 8 November 2024.