Keren Soares Thadeu, R (on the application of) v The Secretary of State for the Home Department [2025] EWHC 736 (Admin)

[2025] EWHC 736 (Admin)AC-2024-LON-003663
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 01/04/2025
Before
DAVID PITTAWAY KC
Between
THE KINGClaimantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Mr Alex Grigg (instructed by Duncan Lewis) for ClaimantMr Gavin Dingley (instructed by the GLD) for SSHDHearing Hearing dates: 11 March 2025
Approved JudgmentThis judgment was handed down remotely at 10.00am on 1 April 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

DAVID PITTAWAY KC (Sitting as a Deputy High Court Judge):

[1]The claimant seeks to review the decision of the defendant (“SSHD”) made on 12 September 2024, alternatively 7 October 2024, to cancel her leave to enter the UK as a visitor on the ground that she had been found to be in breach of Paragraph 9.8.8 of Part 9 of the Immigration Rules. She was held in detention from 12 September to 8 November 2024, following which she was granted immigration bail. Permission to seek judicial review was granted by Richard Clayton KC, sitting as a Deputy High Court Judge, on 14 January 2025. The alleged breach of the Immigration Rules, for the purposes of this claim is admitted by Mr Grigg, on behalf of the Claimant.[2]The grounds of the claim are as follows:(1) The SSHD failed to have regard to the claimant’s explanation of the circumstances in which the breach arose; or if having regard to that explanation, reached an unreasonable decision to nonetheless cancel the claimant’s leave.(2) Alternatively, the SSHD acted (i) unfairly and/or (ii) irrationally, by cancelling the claimant’s leave without affording the claimant a proper opportunity to explain the above.(3) The claimant’s detention is unlawful because: detention is premised upon the unlawful decision to cancel the claimant’s leave; and/or detention is contrary to the Hardial Singh [1984] 1 WLR 704 principles, in particular because there is no real risk of the claimant absconding; and/or detention is contrary to Article 5 ECHR.[3]The claimant is a national of Brazil, born 18 October 2000, who entered the UK with leave to enter as a visitor on 1 August 2024. The Claimant alleges the purpose of her visit was to see her boyfriend and other friends in the UK, and to improve her English. On 29 August 2024, the claimant signed an agreement to volunteer with Saint James Backpackers, 21-23 Longridge Road, London, SW5 9SB (“the hostel”), which is not a registered charity. She said in interview that she had found the advertisement on Instagram. The advertisement was for individuals to volunteer at the hostel for 30 hours a week and receive accommodation and two meals a day. The claimant began living at the hostel on 5 September 2024. On 12 September 2024, the Defendant deployed officers to the address where they concluded that the Claimant was working in breach of the conditions of her leave to enter the UK. The decision was made to cancel her leave and detain her under immigration powers.[4]The decision letter of 12 September 2024 referred to Immigration Rules which had been superseded on 30 November 2020, leading to a fresh decision letter being served on the claimant on 7 October 2024. The content of the letter was otherwise the same as the original letter, except that it omitted the allegation that she had committed a criminal offence. In the meantime, on 22 September 2024 the claimant’s solicitors sent a detailed pre-action protocol letter to the SSHD, setting out that the breach of the conditions was a genuine mistake, as she had not understood that the volunteering she had agreed to perform was in breach of the Immigration Rules. The claimant does not deny, and has never denied, that she engaged in voluntary work with the hostel. She says that she honestly and reasonably understood it to be permitted by the terms of her leave to enter the UK.

Immigration Controls

[5]The statutory basis for immigration controls is set out in the claimant’s skeleton argument, which for reasons of conciseness, I have taken from Mr Grigg’s skeleton argument. Mr Dingley did not dispute the propositions of law, which he had formulated.[6]Foreign nationals lacking the right of abode require leave (or permission) to enter or remain in the UK: ss. 1(2) and 3(1)(a) of the Immigration Act 1971. Grants of leave to enter or remain in the UK will be made by the SSHD in accordance with the Immigration Rules, being statements of “the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom”: s. 3(2) of the 1971 Act. Grants of leave may be subject to conditions, including conditions “restricting [the migrant’s] work or occupation in the United Kingdom”: s. 3(1)(c)(i)). The SSHD’s practice in relation to conditions of leave is set out in the Immigration Rules under s. 3(2). While the Rules set out the SSHD’s general practice, for a condition to be effective in a given case it must be communicated to the migrant in writing: s. 4(1) and Anwar v SSHD [2017] EWCA Civ 2134, [2018] 1 WLR 2591 at §§63-91.[7]Appendix V: Visitor to the Immigration Rules sets out the requirements to obtain leave “for a person who wants to visit the UK for a temporary period, (usually for up to 6 months), for purposes such as tourism, visiting friends or family, carrying out a business activity, or undertaking a short course of study.” Applicants must satisfy the SSHD’s decision-maker that they are a “genuine visitor”, meaning inter alia that they will leave the UK at the end of their visit and are “genuinely seeking entry or stay for a purpose that is permitted under the Visitor route as set out in Appendix Visitor: Permitted Activities and at V 13.3”, and will not undertake any prohibited activities listed at paras V 4.4 to 4.6: para V4.2.[8]The list of permitted activities in set out in Appendix Visitor: Permitted Activities includes visiting friends/family (PA 2(a)), holidaying in the UK (PA 2(a))), and volunteering for a maximum of 30 days with a registered charity (PA 3). The list of prohibited activities includes (V 4.4(a)) “work in the UK”, which is expressed as including: “(i) taking employment in the UK; and (ii) doing work for an organisation or business in the UK; and (iii) establishing or running a business as a self-employed person; and (iv) doing a work placement or internship; and (v) direct selling to the public; and (vi) providing goods and services”.[9]Mr Grigg submitted that these provisions do not themselves constitute conditions of visitors’ leave to enter or remain in the UK. Rather they represent requirements that must be met in order for leave to be granted. Conditions of leave are addressed at paragraph V17.1 which states:
“The grant will be subject to all the following conditions: (a) no access to public funds; and (b) no work (which does not prohibit the permitted activities in Appendix Visitor: Permitted Activities or Appendix Visitor: Permit Free Festival List); and (c) no study except where permitted by Appendix Visitor: Permitted Activities at PA 2. And PA 17. (d) study or research as part of a permitted activity is subject to the ATAS condition in Appendix ATAS.”
[10]The term “work” is subject to general definition in the Introduction to the Rules, paragraph 6, which provides that work “has the same meaning as “Employment”,except that work does not include being party to an employment contract but not working.” Employment includes paid and unpaid employment, paid and unpaid work placements undertaken as part of a course or period of study, self-employment and engaging in business or any professional activity.[11]“Voluntary work” is defined separately by reference to the definition given in the National Minimum Wage Act 1998. That definition is found at s. 44 of the 1998 Act: “(1) A worker employed by a charity, a voluntary organisation, an associated fund-raising body or a statutory body does not qualify for the national minimum wage in respect of that employment if he receives, and under the terms of his employment (apart from this Act) is entitled to,— (a) no monetary payments of any description, or no monetary payments except in respect of expenses— (i) actually incurred in the performance of his duties; or (ii) reasonably estimated as likely to be or to have been so incurred; and (b) no benefits in kind of any description, or no benefits in kind other than the provision of some or all of his subsistence or of such accommodation as is reasonable in the circumstances of the employment.”

except in respect of expenses—

[12]Perhaps more apposite to this case, where the breach is admitted, are the provisions for cancellation or curtailment of leave. Section 3(3) of the 1971 Act empowers the SSHD to vary a person’s limited leave, including by cancelling that leave. The power is to be exercised by notice in writing: s. 4(1). Paragraph 9.8.8 of Part 9 of the Immigration Rulesprovides that immigration leave “may be cancelled where the person has failed to comply with the conditions of their permission”. This cancellation power is discretionary, and guidance on its exercise is given in the SSHD’s guidance Cancellation and Curtailment of Permission (version 6.0, 15 August 2024), pp 25-26, which states:
“When you consider cancellation on these grounds the breach must be of sufficient gravity to warrant such action. You must not cancel leave when the breach is so minor that it would mean cancellation would be disproportionate. Cancellation under paragraph 9.8.8 is discretionary, so you must consider all the circumstances in deciding whether to cancel permission. See: Cancellation decisions: case considerations and use of discretion. For further information, see guidance on: Suitability: previous breach of immigration laws.”
[13]That refers to the section of the guidance entitled Case considerations and use of Discretion.At page 55, the guidance states:
“In cases where the reasons for cancellation are discretionary, you must not automatically cancel an individual’s entry clearance or permission if there are reasons that suggest it may not be appropriate to do so. It is the Secretary of State’s responsibility to establish the reasons why an individual’s entry clearance or permission is to be cancelled. You must establish the relevant facts and then carefully consider all an individual’s relevant circumstances and the proven facts of the case before you make a final decision.”
[14]Mr Grigg referred in his skeleton argument to the sample wording in the guidance which may be used to indicate that this process has been followed, reading:
“I have considered whether to exercise discretion regarding the cancellation of your entry clearance/permission. It is not considered that the circumstances in your case are such that discretion should be exercised in your favour because [insert reasons why you are not applying discretion, taking into consideration the full facts and circumstances of the case].”
[15]The passage cited above additionally refers to the separate guidance Suitability: previous breach of immigration laws (current version 6.0, 14 December 2023). That guidance addresses rule 9.8.8 at pp 15-16, stating: “Where there is evidence that the person has previously breached the conditions of their permission you first consider whether subsequent permission was granted in the knowledge of the previous breach. If it was the permission must not be cancelled on grounds of the previous breach. In other cases, you must consider any relevant information when deciding whether to cancel permission, including (but not limited to):• why and how did the breach take place• the passage of time between the condition being imposed and the breach• the passage of time since the breach• any other circumstances, e.g. how long has the individual been in the UK and the reason for their application to stay in the UK, the impact a decision to cancel leave may have on the individual and their dependants living in the UK”.[16]The guidance adds that decision-makers:
“should provide the person with an opportunity to say why their permission should not be cancelled and, if you do so, you should include in your decision any representations made and your response to them.”

Immigration Detention

[17]A person who is liable for removal from the United Kingdom (i.e. because they require, but do not hold, leave to enter or remain), may be subjected to detention under paragraph 16(2) of schedule 2 to the Immigration Act 1971: s. 10(1), (7) and (9) of the Immigration Act 1999. Paragraph 17A of schedule 2 to the 1971 Act provides that a person liable to detention under paragraph 16 “may be detained for such period as, in the opinion of the Secretary of State, is reasonably necessary to enable the examination or removal to be carried out, the decision to be made, or the directions to be given”. This provision was inserted by s. 12(1)(b) of the Illegal Migration Act 2023.[18]Mr Grigg submits that prior to the 2023 amendment, it was uncontroversial that detention under immigration powers must comply with the four principles identified in Hardial Singh [1984] 1 WLR 704 (and summarised in R (I) [2002] EWCA Civ 888 at §46 including that the overall period of detention must be “reasonable in all the circumstances”, and detention must cease if “before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period”. On an application for judicial review, the court will decide for itself what period of detention is reasonable in all the circumstances: R (A) [2007] EWCA Civ 804 at §62. Mr Grigg submits that the stated intention of the 2023 amendment to immigration detention powers was to codify the principles identified at §17 above, and to overturn the principle in R (A)“that it is for the court to decide, for itself, whether there is a reasonable or sufficient prospect of removal within a reasonable period of time”: §§101-102 of the Explanatory Notes .The Claimant does not accept that the amendments in fact have this effect.[19]Article 5 ECHR provides that “[e]veryone has the right to liberty and security of person”. While detention “of a person against whom action is being taken with a view to deportation or extradition” is permissible (Article 5(1)(f)), detention “should not be punitive in nature” (Azimov v Russia (67474/11, 18 April 2023) at §172), and the length of detention should not exceed that reasonably required for the purpose pursued (A & Ors v United Kingdom (3455/05, 19 February 2009) at §164). The ECtHR has described the test for lawfulness of detention under Article 5 ECHR as “almost identical” to the Hardial Singh principles as they were applied by the domestic courts before the IMA 2023 amendments: JN (37289/12) at §§96-97; Ahmed (2017) 65 EHRR 18 at §39; VM (2017) 64 EHRR 7 at §72.

Submissions

[20]Mr Grigg accepts, for the purposes of this claim, that the claimant was in breach of the condition of her entry into the UK by accepting food and accommodation in exchange for carrying out duties at the hostel where she was staying. His principal submission is that the SSHD, in exercising her discretion, failed to take account of the mandatory guidance to consider all relevant facts and circumstances, before making the decision to cancel her leave, as contained in his extracts from the guidance set out above. He relies upon the transcript of the interview with the claimant on 12 September 2024 as lacking the particularity required to establish why the claimant was in breach of the conditions. He relies upon her honesty in the answers that she gave to the questions that she was asked. He correctly draws attention to the fact that the interview does not disclose any questions as to whether she was aware that the role she was undertaking as a housekeeper was in breach of her conditions of entry. Contrary to what is said in the decision letter of 7 October 2024, Mr Grigg maintains that the transcript does not show that the claimant was asked to give any reason why her permission should not be cancelled, or indeed, did give any reason as to why her permission should not be cancelled.[21]Mr Grigg submits that the reasoning in this case can be contrasted to those given in the recent case of R (Andrews) v SSHD [2025] EWHC 64 (Admin), which involved a decision to cancel leave on the basis of an allegation of work in breach of conditions. The reasoning in that case was detailed and engaged with all matters relevant to the SSHD’s discretion. He states that, by contrast, the reasoning in the present case goes no further than observing the fact of breach. He submits that the SSHD‘s decisions were thus unlawful as(i) failing to address the discretionary element of paragraph 9.8.8, treating the fact of breach as by itself determinative,(ii) disregarding material relevant to that discretion, and/or(iii) having regard to the erroneous assertion that the Claimant had provided no reason why her leave should not be cancelled. Put another way, there were demonstrable flaws in the SSHD’s reasoning, which excluded relevant material, and had regard to erroneous (and therefore rationally irrelevant) considerations: c.f. §98 of R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin), [2019] 1 WLR 1649. He submits that, at minimum, insofar as the person concerned raises factors said to justify not cancelling their leave, the SSHD is obliged to engage with the factors identified as relevant in her own policy including (i) the reasons for, and circumstances of, the breach, and (ii) the reasons for the person’s presence in the UK, and consequences to them of cancellation of leave.[22]Second that the SSHD’s decisions in this case failed to engage with the discretionary nature of the paragraph 9.8.8 cancellation ground.[23]The decision letter of 12 September 2024 simply refers to:
“It is not considered that the circumstances in your case are such that discretion should be exercised in your favour”
. The reasoning then given restates that the claimant had been found working in breach of her leave. There is no reference to or consideration of the mandatory relevant considerations identified in the SSHD’s guidance. He is also critical of the assertion that the claimant’s breach of conditions was knowing, by alleging an offence under s. 24(1)(b)(ii) of the Immigration Act 1971. No explanation being given of the basis on which it had been concluded that the claimant’s breach of conditions was knowing. That allegation was omitted from the revised decision letter of 7 October 2024.[24]The revised decision letter of 7 October 2024 was prompted by the reliance in the letter of 12 September 2024 on outdated provisions of the Immigration Rules which had not been effective since 30 November 2020. The facts and matters contained in the pre-action protocol letter of 22 September 2024 and attached materials are simply not referred to in that letter. In particular, that the claimant had explained that her breach of conditions was the result of a good faith but mistaken interpretation of her conditions of leave and that she had not been asked by the SSHD’s officer on 12 September whether she had known that her arrangement with the hostel was contrary to her conditions of leave. As said above, the SSHD’s transcript of the interview on 12 September 2024 contained no reference to support the assertion that the claimant was asked on that date to “give any reason why your permission should not be cancelled.”[25]Third, Mr Grigg submits that disregarding the subsequent material, in particular the case set out in the claimant’s pre-action correspondence and attached evidence, was unlawful as it was relevant material. The effective date of the revised decision being 7 October 2024. While the latter decision letter asserted that the leave cancellation continued to take effect from 12 September 2024, it did not entitle the SSHD to disregard the further relevant material which had been placed before her by the time the letter on 7 October 2024 was prepared. He submits that it was both unfair and irrational. That the claimant should have been given an opportunity to make representations against cancellation of her leave is implicitly acknowledged by the decision letter’s erroneous assertion that the claimant had been given that opportunity. It was, moreover, identified in the SSHD’s guidance, which states that migrants subject to cancellation consideration “should [be provided] with an opportunity to say why their permission should not be cancelled.”[26]Mr Grigg submits that the claimant’s detention was unlawful from the outset because of the unlawful decision to cancel her leave. He relies upon the principle in DN (Rwanda) [2020] UKSC 7, [2020] AC 698 at §§17-18. Mr Grigg also submits that even if those submissions are rejected, the original letter of 12 September 2024 was unlawful as it baselessly asserted that the claimant had knowingly breached her conditions of leave, and so committed a criminal offence, and relied upon provisions of the Immigration Rules which were no longer in force.[27]In any event he maintains that even if the decisions to cancel the Claimant’s leave were lawful, the detention was nonetheless unlawful as contrary to(i) the Hardial Singh principles and(ii) Article 5 ECHR. Regardless of the effect of the Illegal Migration Act 2023, upon which I make no findings, he submits that the SSHD was wrong to conclude that the claimant had shown a complete disregard for the Immigration Rules. The SSHD had paid no regard to the claimant’s explanation that her breach of conditions was innocent. The claimant had also offered a surety of £100 paid by herself, which would further have reduced any absconding risk. The SSHD’s conclusion that the claimant would be driven to work to sustain herself was irrational, where she had shown that she had sufficient means. She had provided financial evidence which demonstrated that her means were adequate to sustain herself without working. There was, finally, no reason to impute to the claimant any intention to remain in the UK unlawfully.[28]Mr Dingley submitted that, as to the first ground, he denied that the SSHD did not take the reasons and mitigation advanced by the claimant into account in reaching the Cancellation Decision. He submitted that the claimant had had the Notice of Liability explained to her by the arresting officer when they served the paperwork. He asserted that the claimant’s explanation was taken into account prior to her leave being terminated. He denied that the Cancellation Decision was Wednesbury unreasonable. He maintained that the claimant was encountered working at a hostel, where she was receiving food and accommodation. He relies upon the Immigration Rules and Guidance which state that volunteering must be with a registered charitable organisation, which did not apply in this case. He also relied upon the claimant being provided with a contract with the hostel, which she had signed.[29]He submits, as to the second ground, that the claimant was given ample opportunity to explain her reasons for breaching the conditions attached to her leave and she did not do so. He maintained that this ground lies at odds with the first ground. The claimant claims that she tendered an explanation for her breach of the conditions attached to her leave but then claims that she was not given an opportunity to provide her explanation.[30]He submits, as to the third ground, that as the claimant was encountered working illegally in the UK, the subsequent detention would therefore be deemed as legal since the Claimant’s leave was immediately cancelled after the encounter at the hostel. Although the original Notice of liability stated ‘curtailment’, the SSHD had acknowledged this was incorrect wording and thereafter re-issued the correct wording in the letter of 7 October 2024 and clarified that the claimant’s leave had been cancelled. He submitted that the SSHD probably was unaware of the content of the pre-action protocol letter of 22 September 2024 because it would not have been sent to the same department, which had prepared the revised letter of 7 October 2025.[31]He firmly put the SSHD’s case on the basis of the actions which were taken, submitting that ignorance was no defence to a breach of the Immigration Rules. The claimant was encountered working in breach of her visa conditions as a visitor. She had made no attempt to regularise her stay or right to work in the UK, demonstrating a complete disregard for UK Immigration laws. As a result, she was assessed to be at medium risk of absconding and detained to effect her removal. Upon detention, the claimant declined the opportunity to voluntarily depart. During the claimant’s detention period, a bail application had been made, fully considered and refused.

Conclusion

[32]Having considered the parties’ oral and written submissions, I have concluded that the SSHD did not follow the rules and guidance, which I have set out above, and consider all the relevant facts and circumstances before reaching the decision to cancel the claimant’s leave on 12 September 2024. I am satisfied that the procedure adopted on that occasion by the SSHD’s officers could properly be categorised as slipshod.[33]There is no dispute that the first decision letter referred to language in outdated Immigration Rules, which had not been effective since 30 November 2020, hence the necessity for the second letter of 7 October 2024. The subsequent assertions made on behalf of the SSHD, as to what the claimant was asked and her response, are wholly unsupported by the evidence before me. There was no attempt to use the sample wording, drawn to my attention by Mr Grigg, which would have shown that the relevant facts and circumstances had been considered.[34]The transcript of the interview on 12 September 2024 makes no reference to the claim that the claimant was asked or given an opportunity to explain why she had entered into the arrangement with the hostel. When that explanation was provided in the pre-action protocol letter, it was not referred to in the revised decision letter of 7 October 2024. I regard the explanation given by Mr Dingley that the author probably did not have sight of the letter because it had been sent to a different department as distinctly unsatisfactory and, indeed, unlikely. From receipt of the claimant’s solicitor’s letter of 22 September 2024, the SSHD was aware that the decision to cancel the claimant’s leave was under challenge. Although there is no explanation in the information before me, I do not know if it prompted the revised letter of 7 October 2024.[35]I have gone on to consider whether it is highly likely that the outcome for the claimant would not have been substantially different if the SSHD had considered the reasons for, and circumstances of, her breach of the Immigration Rules, before taking the decision to cancel the claimant’s leave. On the basis of the information available to me, I am unable to reach that conclusion.[36]In those circumstances, I am satisfied that the decision to cancel her leave to be in the UK on 12 September 2024, revised on 7 October 2024, should be quashed. Accordingly, the claimant’s grounds 1 and 2 are successful. It follows that ground 3 is also successful and the claimant’s subsequent detention was unlawful.[37]If I had not reached the decision on grounds 1 and 2, I would not have concluded that the initial decision to detain the claimant on 12 September 2024 was in breach of the Hardial Singh principles or Art. 5 of the ECHR. The initial decision was on the basis that the claimant’s removal from the UK was imminent, that she did not have close ties which would have made it likely that she would stay in one place, and that she had failed to comply with conditions of her stay. I do not consider that decision can be impugned.[38]The subsequent refusal of bail was notified to the claimant on 11 October 2024, on the grounds that the claimant was unlikely to comply with bail conditions, and that she had shown a complete disregard for the Immigration Rules. It also considered that the offer of recognizance of £100 was disproportionate to the risk of her absconding, the position had altered. Albeit that her case was actively being progressed toward removal, which was arranged on 3 separate occasions, the defendant was in possession of the pre-action protocol letter of 22 September 2024, which placed a different perspective on the reason for her visit to the UK and breach of the conditions for her stay. At that stage she should have been granted bail. It is to be noted that the claimant was released on 8 November 2024.[39]It follows that I ask counsel to submit a draft order reflecting the decision set out above including the transfer of the claim for unlawful detention to the county court for an assessment of damages for unlawful detention from 12 September 2024 to 8 November 2024.

Cited in 1 later judgment