Successful challenge to cancellation of skilled worker leave after Home Office errors

A person on a skilled worker visa who was encountered working in a nail salon has successfully challenged the cancellation of her leave. The case is R (Thi Lam Thao Dao) v Secretary of State for the Home Department JR-2024-LON-002126.

The applicant is a Vietnamese national who arrived in the UK in January 2019 with leave as a student, which she later extended. On 3 January 2024 she applied for leave to remain as a skilled worker and this was granted on 5 January 2024 valid until 29 January 2029. The applicant was sponsored to work for Cadmore Auctions Ltd as a valuer and she was also permitted to take supplementary paid employment of up to 20 hours a week with a different employer in the same occupational code or in a role on the shortage occupation list, and/or to carry out voluntary work.

On 12 July 2024 the applicant was encountered by immigration officers carrying out a pedicure in a nail salon called Fabulous Nails. She was interviewed three times that day and her leave was then cancelled. The decision was challenged by judicial review on the following grounds:

(i) Ground 1: the Respondent’s decision was based on material errors of fact and was procedurally unfair due to the failure to provide a decision with full reasons and to disclose the records of the Applicant’s interviews; and
(ii) Ground 2: the Respondent had failed to exercise discretion or to consider all relevant factors.

On the first ground, the Upper Tribunal concluded that there had been a breach of the Tameside duty to carry out reasonable enquiries before the cancellation decision, including the fact that the decision maker had only emailed the applicant’s employer, Cadmore, after the decision had been made.

On the second ground, the Upper Tribunal said:

47. It is clear from the use of the word ‘may’ in paragraph 9.8.8 of the Immigration Rules, and from the relevant policy guidance on curtailment of leave, that the power to cancel leave for breach of conditions is discretionary. The Respondent’s policy guidance on cancellation requires decision-makers in discretionary cases to exercise discretion in two steps. Where a breach of conditions is made out, the decision-maker must first decide whether in all the circumstances of the case, it is appropriate to cancel leave. Second, if it is appropriate to cancel leave, the decision- maker must decide whether it is appropriate to do so with immediate effect. The policy also requires decision-makers to record the exercise of discretion and the reasons for cancellation in the cancellation notice.

The respondent accepted that discretion was not considered in the cancellation decision, which did not make any reference to the exercise of discretion. The judge did not consider that immediate cancellation would have been the inevitable outcome if the Home Secretary had properly considered the use of discretion and so the judicial review was allowed and the decision to cancel the applicant’s leave was quashed.