Student held to be unlawfully detained after Home Office wrongly cancels leave

A student and her husband have successfully challenged the Home Office’s decision to cancel their leave, with the result that their detention was also held to be unlawful. The case is R (Manpreet Kaur & Anor) v The Secretary of State for the Home Department [2025] EWHC 1942 (Admin).

Background

The claimants came to the UK on 25 January 2023 on a student visa and dependent (the husband). On 16 May 2023 the husband was encountered working at a factory. The claimants were issued with a RED.0001 notice advising that their leave was cancelled with immediate effect and that they were liable to removal because the claimant’s sponsorship had been revoked by her university sponsor. Removal directions were given the following day.

On 23 May 2023 a pre action letter was sent arguing that removal would breach article 8. On 21 June 2023 the human rights claim was refused and certified as clearly unfounded, meaning there was no right of appeal against the decision.  

The judicial review

The judicial review application was issued on 26 June 2023. Permission was refused on the papers and at an oral renewal hearing, however the claimants successfully appealed that refusal and permission was granted on 24 September 2024. The court noted that:

11. During the period between the paper refusal and the oral renewal hearing, the Defendant issued notices to the Claimants which purported to cancel their permission to remain within a 60-day period. The Defendant says that this was done in error and is a nullity. The late emergence of this material caused the renewal hearing to be adjourned. The Government Legal Department was unaware of this until her lawyers were shown the paperwork at court. This should have been a wake-up call to the Defendant that all was not right with this case.

There were other issues with the conduct of the case on the Home Secretary’s behalf, including serving a witness statement the day before the substantive hearing confirming that the claimant’s sponsor withdrew her sponsorship on 16 February 2023 for failure “to engage and academically progress” as required by the immigration rules. During the hearing itself, the Home Office provided 31 pages of evidence to their counsel, which was evidence the claimants had been seeking from the early stages of the claim.

The grounds for the judicial review were that the RED.0001 should not have been used to cancel permission, that there was a failure to follow the policy on cancelling leave, and that the claimants’ detention had been unlawful.

In defending the first ground, those acting on behalf of the Home Secretary initially argued that leave had been cancelled under paragraph 9.8.8 of the immigration rules (breach of conditions). Once attention was drawn to the wording in the RED.0001 itself, which said “discretion has been used to cancel your permission to stay with immediate effect under paragraph 9.25.1 of the Immigration Rules”, the position understandably changed and it was submitted that the decision had been made under paragraph 9.25.1.

However, the Home Office’s guidance “Administrative Removal: notification and implementation – interim guidance version 2.0 dated March 2023” which was in force at the time sets out where a RED.0001 can be used to cancel leave, and this reason is not listed. It was then argued on behalf of the Home Secretary that these were just examples of where the RED.0001 could be used and it could in fact be used to cancel leave under any of the immigration rules. The court rejected this, stating:

I cannot however accept that when the Defendant set out the examples of deception, fraud and breach of conditions in the March 2023 guidance, these were not intended to indicate that permission should normally only be cancelled with a RED.0001 notice in the more serious cases referenced within the guidance. To accept such an argument would be to render the terms of that guidance meaningless.

The court then moved on to consider the second ground, that the guidance on cancelling leave had not been followed, which was closely linked to the first. The cancellation guidance also indicated that immediate cancellation, as applied in this case, should only be used in cases of fraud or gross misconduct.

Again, those acting on behalf of the Home Secretary changed their position during the hearing. First it had been argued that there was no requirement for the decision maker to seek any additional information before cancelling the claimants’ leave. Once the additional 31 pages of evidence turned up, this was changed to an argument that “such duty of inquiry as existed in this case was satisfied by the questions asked of the Claimants and their answers”.

The court found it “difficult to accept that the questions asked of the Claimant amounted to a proper inquiry into her circumstances”. This position was supported by Home Office records from before interviewing the claimant which said that the claimants’ leave would be cancelled, indicating that the decision had already been made before the interview. The husband had also been arrested as an overstayer before the interview had happened and before the RED.0001 had been served.

The court summarised the issues with the cancellation as follows:

First, it seems that the immigration officers had decided before they spoke to the Claimant that they were going to cancel her permission with immediate effect.

Second, the decision to cancel with immediate effect does not (upon the known facts) appear to fit within the Defendant’s guidance. This was not a case of fraud or deception and the Defendant no longer relies upon a breach of conditions of permission.

Third, the Defendant accepts that no reasons were given as to why the decision was made to cancel permission with immediate effect.

The court quashed the decisions to cancel the claimants’ leave, meaning that their period of detention was also unlawful. The claim has been transferred to the County Court to determine the amount of damages.

Conclusion

The court concludes with criticism of various elements of the handling of the Home Secretary’s case, stating that this “is not how cases of this kind should be litigated”. The thing that strikes me about this case is the fact that the claimants had to go all the way to the Court of Appeal to get a positive decision on permission, given how clear the errors here seem to be.