Extending Balajigari to Part 9 Cancellations: Two-stage procedural fairness, “no prejudice” and s.31(2A) in Singaram v SSHD [2025] EWCA Civ 1375

Introduction

This Court of Appeal decision clarifies the procedural fairness obligations that apply when the Secretary of State cancels a person’s permission (leave) under paragraph 9.8.8 of the Immigration Rules for breach of a condition—for example, a student’s 20-hour work cap in term time. The claimant, an Indian national on a student visa, was encountered during an enforcement visit to “Lucky’s” off-licence, admitted working there on Mondays and Tuesdays and also working night shifts at Tesco, amounting to approximately 38 hours per week in term time. His leave was cancelled with immediate effect on 7 November 2023. Permission for judicial review was refused in the High Court, but the Court of Appeal (Nugee LJ granting permission) retained the claim and determined it on two grounds:

Ground 1 (procedural fairness): whether the process failed to comply with the fairness duty—particularly as articulated in Balajigari v SSHD—by not clearly putting the suspicion and by not inviting representations on the distinct discretionary decisions (to cancel at all, and to cancel with immediate effect).
Ground 2 (breach): whether, on a proper understanding of “week” in the Rules (a period of seven days beginning Monday), the claimant had not in fact exceeded 20 hours in the week of 6–12 November 2023.

The case therefore sits at the intersection of immigration enforcement practice, administrative law fairness, and the practical application of the Immigration Rules to working conditions for students, with wider implications for the Home Office’s on-the-spot cancellation decisions.

Summary of the Judgment

The Court dismissed the claim. It held that:

Procedural fairness principles do apply to cancellation under paragraph 9.8.8 and they attach to two distinct aspects: (i) whether the person failed to comply with a condition; and (ii) whether, as a matter of discretion, permission should be cancelled and, if so, whether to cancel with immediate effect or defer cancellation.
On the facts, there was no breach (or no material breach) of procedural fairness. The claimant was clearly told of the suspicion (breach by exceeding permitted working hours), was extensively questioned, and in substance provided all the information he wished to rely upon for discretionary leniency, even though he was not expressly invited to make representations on discretion.
Even if there had been a procedural flaw, the Court would have refused a remedy under section 31(2A) of the Senior Courts Act 1981, because it was highly likely the outcome (immediate cancellation) would not have been substantially different.
Ground 2 failed: the decision was based on the claimant’s own admissions showing that he had exceeded 20 hours per week during earlier weeks in October 2023. The Rule’s definition of “week” did not assist the claimant given the evidence of earlier and continuing breach.

Analysis

Precedents Cited and Their Influence

The Court’s reasoning is anchored in a line of authorities shaping the modern doctrine of procedural fairness in administrative decision-making, and its interaction with statutory constraints on relief:

R (Doody) v Secretary of State for the Home Department [1994] 1 AC 531: The Court cited Lord Mustill’s classic synthesis of fairness principles, emphasizing that fairness is context-specific. It highlighted the presumption that statutory powers are to be exercised fairly and that, often, fairness includes an opportunity to make representations—before or after a decision—once one knows the “gist” of the case one has to meet.
Balajigari v SSHD [2019] EWCA Civ 673; [2019] 1 WLR 4647: Central to the decision. Balajigari articulates a two-stage decision framework under para. 322(5): (1) whether the person’s presence is “undesirable” based on conduct; (2) whether to refuse leave as a matter of discretion. Importantly, it imposes a fairness duty to put the suspicion and invite a response both on the primary adverse assessment and on the discretionary stage. The Court here extended and applied this logic to paragraph 9.8.8 cancellations. It rejected the Secretary of State’s submission that Balajigari’s fairness duty was confined to the primary assessment only. Instead, it confirmed that fairness applies to both the breach assessment and the discretion whether to cancel, including the immediacy of cancellation.
George v Secretary of State for the Environment (1979) 38 P & CR 608: Invoked for the proposition that there is “no such thing as a technical breach of natural justice.” That is, the courts ask whether any alleged procedural lapse caused real prejudice; if not, there may be no breach at all. This is a common law approach which, as clarified below, continues to sit alongside the statutory “no substantial difference” test in s.31(2A).
R (Save Our Stonehenge World Heritage Site Ltd) v Secretary of State for Transport [2024] EWCA Civ 1227; [2025] PTSR 726: The Court relied on this recent authority to confirm that judges may consider prejudice at the breach stage. It rejected the suggestion that any departure from an ideal procedure automatically constitutes a breach and that materiality only arises at the relief stage via s.31(2A). The judgment affirms the two-tier structure: (a) at common law, there is no breach if no prejudice; (b) even if there is a breach, relief can be refused if s.31(2A) is satisfied.
R (Bradbury) v Brecon Beacons National Park Authority [2025] EWCA Civ 489; [2025] 4 WLR 58 and R (Greenfields (IOW) Ltd) v Isle of Wight Council [2025] EWCA 488; [2025] 2 P & C.R. 16: Cited on the correct application of s.31(2A) SCA 1981—courts must evaluate whether it is highly likely that the outcome would not have been substantially different but for the error, assessing the real-world significance of the error in the actual decision-making process.

Legal Reasoning

The Court addressed three core legal questions:

Does procedural fairness apply to paragraph 9.8.8 cancellations and what does it require?
Yes. Paragraph 9.8.8 is discretionary: permission “may be cancelled” where the person has “failed to comply with the conditions of their permission.” The Court held there are two essential aspects:
- First, the factual assessment whether the individual failed to comply with a condition (e.g., exceeding 20 working hours in term time).
- Second, the exercise of discretion whether to cancel, and—critically—whether to cancel with immediate effect or at a later date.
Applying Doody and Balajigari, the Court confirmed that fairness applies to both aspects. Fairness requires that the suspicion be clearly put and that the affected person be afforded an opportunity to respond both to the underlying allegation and to the exercise of discretion, including the immediacy decision. The Court explicitly rejected the argument that Balajigari fairness duties were limited to the first (adverse assessment) stage.
Was there a fairness breach on the facts?
The Court drew a careful distinction:
- Stage 1 (breach): There was no unfairness. The suspicion was clearly explained in plain terms during the encounter and on arrest: the officer suspected a condition breach by working more than permitted hours. The claimant was questioned about work at Lucky’s and Tesco (days, hours, start date), and about studies. The questioning provided an adequate opportunity to put forward his account.
- Stage 2 (discretion and immediacy): The claimant was not expressly told he could make representations specifically on whether the discretion should be exercised and whether cancellation should be immediate. However, the interviews in substance elicited all factors the claimant would have wished to rely upon: that he was a genuine student, had paid substantial fees (£19,350), was close to completing the MSc, wanted to remain to finish, had no partner/children in the UK, and had no health vulnerabilities. The officer also knew the extent of non-compliance (around 38 hours per week since mid-October), and that he intended to switch from Tesco to Lucky’s in future.
In these circumstances, the Court held there was no breach—or, at most, no material breach—of fairness: the purpose of the fairness duty (to ensure the person can advance their case on the discretion/immediacy questions) was in fact achieved. The Court emphasized the common-law “no technical breach” approach: in the absence of real prejudice, the fairness complaint does not vitiate the decision.
Would relief have been refused under section 31(2A) in any event?
Yes. Even had there been a fairness breach, the Court would have refused to quash the decision under s.31(2A) SCA 1981. The claimant had already supplied all material he wished the officer to consider; accordingly, it was “highly likely” that the outcome—immediate cancellation—would not have been substantially different. The Court applied the evaluative approach described in Bradbury and Greenfields.

Application to Ground 2: Was There a Breach of the Working Hours Condition?

The claimant’s argument that he did not exceed 20 hours in the week commencing Monday 6 November 2023 (as he took off the Friday and Saturday night shifts) was held to be beside the point. The decision on 7 November 2023 was not limited to that week. The claimant’s own interview admissions showed:

He started at Lucky’s on 15 October 2023.
He trained/worked Mondays and Tuesdays from 9 a.m. to 6 p.m. (18 hours).
He worked at Tesco Friday and Saturday nights 9 p.m. to 7 a.m. (20 hours).

On those admissions he had repeatedly exceeded the 20-hour cap in prior weeks (circa 38 hours per week) during term time. The immigration officer was entitled to conclude that he had failed to comply with a condition of leave. The Court rejected any suggestion that the interview answers were unclear or required further probing, noting the clarity of the questions, the claimant’s English proficiency (studying a Master’s in the UK), and his signature on the digital record.

Impact and Significance

This judgment does several important things:

Extends Balajigari-style fairness to paragraph 9.8.8 cancellations. The Court expressly applies the two-stage fairness framework to Part 9 cancellations for condition breaches, including the decision to cancel with immediate effect. Officers must put the suspicion of breach clearly and should, as a matter of good practice, invite representations on discretion and timing.
Clarifies the role of prejudice in fairness analysis. Reinforcing Save Our Stonehenge, the Court confirms judges may assess prejudice at the breach stage. There is no automatic breach simply because a particular procedural step (e.g., an explicit invitation to make discretionary representations) was omitted; the key is whether the person in substance had a fair opportunity to put forward their case and whether anything material was left unsaid.
Reaffirms s.31(2A) as a robust filter for relief. Even if a breach is established, courts can and will refuse a remedy where it is highly likely the outcome would not have materially changed.
Signals practical expectations for enforcement interviews. While not prescribing a rigid script, the Court intimates a simple safeguard: ask the person, in terms, whether they wish to say anything about why leave should not be cancelled or why cancellation should not be immediate. This reduces litigation risk without unduly burdening operations.
Clarifies “work” in practice. The Rules define “work” by reference to “employment,” which includes paid and unpaid employment. The claimant’s description of “training” did not take him outside the concept of “work”; shelf-stacking at a private business counted, even if it was unpaid or framed as future employment preparation.
Limits technical arguments on “week.” The definition of “week” (starting Monday) will not rescue an appellant where credible admissions evidence extensive ongoing breaches in earlier weeks.

Complex Concepts Simplified

Procedural fairness (natural justice): Basic fairness in how decisions are made. Typically requires (1) being told the case against you (the “gist”); and (2) a fair chance to respond before a decision is taken that adversely affects you. What fairness requires depends on context.
Two-stage decision under para 9.8.8:
1. Did you breach a condition (e.g., exceeded work limits)?
2. Should the Secretary of State cancel your permission—and should that be with immediate effect or a deferred date?
Fairness attaches to both stages.
“No technical breach” rule: Courts look for real prejudice. If an omitted step made no difference because all relevant material was, in substance, considered, the court may find no breach at all.
Section 31(2A) Senior Courts Act 1981: Even if there was a breach, the court must refuse a remedy if it is highly likely the outcome would not have been substantially different but for the breach. This is a statutory “materiality” gateway for relief.
“Work” and “employment” under the Immigration Rules: “Work” has the same meaning as “employment.” “Employment” includes paid and unpaid employment and certain unpaid placements. Labeling activity as “training” will not necessarily take it outside “work.”
Definition of “week”: A seven-day period beginning Monday. However, a decision-maker can rely on evidence of breaches in prior weeks; the analysis is not locked to the week of encounter if admissions show earlier and ongoing violations.

Practical Takeaways

For the Home Office:
- Continue to put the suspicion clearly and ask detailed questions about the alleged breach.
- As a prudent step, explicitly ask: “Is there anything you wish to say about why your permission should not be cancelled or why cancellation should not be immediate?” This simple prompt can insulate decisions from fairness challenges.
- Record that mitigating factors (studies, fees paid, dependants, health, vulnerability) were canvassed. Where relevant, refer to the extent and duration of non-compliance.
For migrants/students:
- Be prepared to explain not only the facts of work but also any mitigating or compassionate factors relevant to discretion and timing (e.g., impending exams, medical issues, dependants, demonstrable compliance history).
- Understand that “training” or unpaid activity at a private business can still be “work” for the purposes of the Rules.
For practitioners:
- Fairness challenges should identify concrete prejudice: what would the client have said, and how could it plausibly have altered the discretionary balance?
- Anticipate s.31(2A) arguments: assemble cogent material indicating the real prospect of a different outcome to resist the “highly likely no substantial difference” bar.
- Where cancellation is immediate, consider whether the officer weighed timing factors (immediacy vs deferral) and whether any specific vulnerabilities were overlooked.

Conclusion

Singaram v SSHD confirms and develops the law in three important respects. First, it extends the Balajigari fairness framework to paragraph 9.8.8 cancellations: fairness applies both to the breach determination and to the discretionary choice to cancel, including the immediacy of cancellation. Second, it underscores that fairness is functional and prejudice-sensitive: courts will not find a breach in the abstract where, in substance, the person has been able to say all that matters. Third, even if a breach is established, section 31(2A) provides a potent restriction on relief unless the claimant can show that the decision might realistically have been different.

On the facts, the claimant’s detailed admissions about his hours at Lucky’s and Tesco made the breach clear, and the officer had, in reality, all the material the claimant wished to rely upon for discretion and timing. The Court therefore dismissed both grounds. Going forward, the case sets a pragmatic baseline for fairness in on-the-spot immigration cancellations: put the suspicion plainly, elicit all relevant information (including on discretion and immediacy), and ensure the record shows that the person had a fair opportunity to be heard. In doing so, the Home Office can make robust decisions that will withstand judicial scrutiny, while preserving the essential fairness the common law demands.