Student Succeeds in Judicial Review

Indian student and dependant succeed at the High Court

This case is about Mrs Manpreet Kaur and her husband Manpreet Singh, who are an Indian married couple. Mrs Kaur held leave in the UK as a student, and her husband held leave as her dependant, and they had been in the UK since January 2023 on that basis. But then something, or indeed several things, went wrong. 

This case got very complicated and confusing, and indeed in this respect it might qualify for an award of some sort, if there is one. It ended up in the High Court, but the court’s narrative, as related in its decision, requires a bit of disentanglement.

The story begins like this. On 16 May 2023 Home Office officials “encountered” (a word pregnant with meaning) Mr Singh working in a factory somewhere in the West Midlands. Evidently they were not entirely happy about things, because they cancelled both his and his wife’s immigration leave with immediate effect. 

This might seem at first blush confusing, because student dependents generally have the right to work, part-time or full-time, so it is not obvious that Mr Singh was breaking any laws. But, as we eventually discover, the salient fact was that his wife’s student sponsorship had been cancelled by her university on February 2023. This meant that his wife’s immigration status was extremely precarious and his status was also extremely precarious because, in a general way, dependants’ status stands or falls in line with the main person’s status. 

Not only was their leave cancelled but they were detained (one hopes in the same cell) and also issued with a fearsome paper form called RED.0001, which is a notice of liability to removal from the UK.

On 23 May they submitted a human rights claim to the Home Office, saying that their removal from the UK would be a breach of Article 8 of the European Convention on Human Rights, which protects private life and family life. This was surely a weak claim and, not surprisingly, it was refused by the Home Office and, equally unsurprisingly, it was certified as “clearly unfounded”. 

But then they got a bit more serious, and they submitted a claim to the High Court for Judicial Review. This was rather more specific; the grounds were: 

(1) the RED.0001 notice should not have been used to cancel permission

(2) the Defendant [ie Home Office] failed to follow its own policy when cancelling permission to remain with immediate effect and 

(3) the decision to detain the Claimants was unlawful. 

The Claimants (as they had now become) sought quashing orders, declarations and damages for false imprisonment.

The High Court refused permission to proceed twice, but the Claimants were not to be deterred, and the third time they were successful and the case thus proceeded.

The fact that permission had been refused twice might be an indication that the case was borderline in strength, but this was not obviously the case, as we shall see. 

First there was a bit of comedy. The Home Office had at some stage during this process of applying for permission sent notices to the Claimants telling them that their leave would be cancelled in 60 days’ time, which was confusing, because their leave had been cancelled already. The Home Office lawyer however was unaware of this sad malfunction until they were informed about it in court. In this respect the judge in his decision said “This should have been a wake-up call to the Defendant that all was not right with this case.”

Then, just one day before the hearing, the Home Office served important evidence about the withdrawal of student sponsorship very late, and the judge was not terribly happy about this either, which was deemed “very unfortunate”. The given reasons for the withdrawal of sponsorship were that Mrs Kaur had “failed to engage and academically progress in line with immigration rules”.

But then things got worse. On the day of the hearing it emerged that the Home Office had just made some extensive and vital material available. This was material about the Claimants’ interviews with Home Office officials, and the Claimants had been trying for some while to get hold of it. By now the judge was evidently very not happy at all.

Anyway, eventually, the court, by now presumably in a thoroughly bad mood, got down to the legal nitty-gritty. The court agreed that the immigration leave should not have been cancelled with immediate effect, because the Claimants had not been involved in anything fraudulent, dishonest or otherwise bad. If the Home Office had followed its own policy guidance it would have given them 60 days’ notice of cancellation (as in fact it eventually did, but only when it was too late). There were some other reasons as well, and the decision to cancel leave with immediate effect was roundly criticised: there were “multiple public law errors”. 

The judge held that “The standard of decision making in this case falls some way short of the required standard and the decisions to cancel permission and to notify the Claimants of their liability to be removed must be quashed. The decision in the Second Claimant’s case is parasitic upon the Claimant’s case. If the Claimant succeeds, so does the Second Claimant.”

Consequently, the judge held that the detention, which resulted from unlawful decisions, was also unlawful, and this part of the claim was transferred to Central London County Court for a damages claim to be heard. 

The judge’s parting shot was this “A number of things have gone wrong in this case. The adjournment of the renewal hearing, the very late service of the witness statement of Mr Hubbard [Home Office witness], the failure to provide the relevant guidance or conditions of permission in advance of the hearing and the appearance of important documents half way through the hearing. This made the case very difficult for the advocates to argue. It saw the Defendant changing position multiple times. That is not how cases of this kind should be litigated.”

This was a solid victory for the Claimants and, not for the first time, victory was largely achieved by inefficiency of the Home Office. 

Oliver Westmoreland

Senior Immigration Lawyer