Jones Owusu for Judicial Review (Court of Session)

Factual and Procedural Background

The Plaintiff, a national of Ghana, applied from Ghana on 14 November 2022 for entry clearance to the United Kingdom as a student and for a biometric immigration document. The Plaintiff's application was granted on 17 November 2022, and a visa vignette was placed in his passport, which he collected from a Visa Application Centre in Ghana. On 18 November 2022, the Defendant sent a letter requesting further evidence about the origin of funds in the Plaintiff's bank account. The Plaintiff did not respond, believing the request was sent in error since the visa had already been granted.

On 14 December 2022, the Defendant issued a letter stating the Plaintiff's application for entry clearance was refused due to failure to respond to the request for further documents. The Plaintiff claims he did not receive that letter until 19 March 2024. The Plaintiff travelled to the United Kingdom, arriving at Edinburgh airport on 1 January 2023, but was refused entry. On 2 January 2023, the Defendant cancelled the Plaintiff's leave to enter as a student and refused to grant leave in any other capacity. The Plaintiff was detained and subsequently released on immigration bail. The cancellation notice stated that the visa had been issued "in error" and had been refused on 14 December 2022. On 3 January 2023, the Plaintiff was issued a "One Stop Notice" advising he had no immigration leave. The Plaintiff's solicitors sent a pre-action letter on 4 March 2024, to which the Defendant responded with a decision letter reiterating the cancellation of leave to enter.

The Plaintiff applied for administrative review on 8 March 2024, which was rejected. The Defendant later conceded the administrative review challenge. The substantive hearing focused on two issues: whether the Defendant took irrelevant considerations or failed to take relevant ones in cancelling the Plaintiff's leave, and whether the Defendant provided adequate reasons for the cancellation based on a change in circumstances.

Legal Issues Presented

1. Whether the Defendant failed to take into account relevant considerations and/or took into account irrelevant considerations in deciding to cancel the Plaintiff's leave to enter the United Kingdom.
2. Whether the Defendant failed to provide adequate reasons for cancelling the Plaintiff's leave to enter based on a change in circumstances.

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff contended that once leave to enter was granted, it could not be refused retrospectively on the basis that it had been issued in error; such error was not a relevant consideration.
• The Defendant conflated the procedures of refusal of leave and cancellation of leave, and the purported refusal of leave after grant was unlawful.
• The refusal letter of 14 December 2022 was not a valid basis for cancellation, as proper cancellation procedures had not been followed.
• The Defendant took into account irrelevant considerations, including the assertion of error in granting the visa and the earlier purported refusal, which was unlawful.
• The reasons provided for cancellation were inadequate and unclear, leaving substantial doubt as to the basis for the decision.
• The Plaintiff relied on established legal principles that a visa granted validly remains valid unless cancelled properly, and error alone does not invalidate it.

Defendant's Arguments

• The Defendant denied taking irrelevant considerations into account and argued any such considerations did not affect the outcome.
• The Defendant's concern related to the Plaintiff's failure to provide satisfactory evidence regarding the source of funds and accommodation arrangements.
• The powers under Schedule 2, paragraph 2A of the Immigration Act 1971 permitted cancellation of leave where there was failure to disclose material facts.
• The Defendant relied on statutory provisions and Immigration Rules permitting refusal or cancellation of leave under such circumstances.
• The Defendant contended that the Plaintiff was still "in the course of his journey" upon arrival, engaging the power to refuse entry at the border.
• Regarding adequacy of reasons, the Defendant argued the decision letter, read as a whole and in context, adequately informed the Plaintiff of the reasons for cancellation.
• Even if imperfectly expressed, the decision letter did not render the decision unlawful.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court analysed the distinction between refusal of leave and cancellation of leave, emphasising that once leave is granted, it cannot be refused retrospectively on the basis of error in issuance. The Court found that the Defendant's decision letter of 2 January 2023 was imperfectly drafted and conflated refusal and cancellation, leading to confusion about the Plaintiff's immigration status upon arrival.

The Court noted the Plaintiff held valid leave to enter at arrival under Schedule 2, paragraph 2A of the Immigration Act 1971 and the 2000 Order. While immigration officers may examine and question the Plaintiff, cancellation of leave must follow proper procedures. The Defendant's attempt to refuse leave already granted was unlawful and took into account irrelevant considerations, including the assertion that the visa was issued in error and the earlier purported refusal letter of 14 December 2022.

The Court rejected the Defendant's reliance on Article 7 of the 2000 Order as misconceived in this context, as the Plaintiff's status at the time of arrival was that of a person with valid leave to enter.

Regarding the adequacy of reasons, the Court found the decision letter failed to clearly articulate the basis for cancellation, leaving the informed reader in substantial doubt. The letter did not clarify what change in circumstances justified cancellation, nor whether the Plaintiff was no longer considered a genuine student.

Consequently, the Court concluded the decision was unlawful due to irrelevant considerations and inadequate reasons.

Holding and Implications

The Court GRANTED THE PETITION and reduced the decisions of 2 January 2023 and its subsequent iteration, finding them unlawful for taking into account irrelevant considerations and providing inadequate reasons.

The direct effect is that the Defendant's cancellation of the Plaintiff's leave to enter was set aside. No broader precedent was established beyond the application of existing principles to the facts of this case.